Viewing jail visitor lists is a common practice among prosecuting attorneys. But what happens when defense counsel asks an expert witness to visit a prisoner? Should that information be privileged? Courts have disagreed.
In California, one court denied the public defenders’ request to keep prosecutors from knowing which defense experts were visiting two men charged with murder. Judge Nancy Davis Stark stated: “”A prosecutor may not necessarily use (the information), but can keep it in his arsenal.”
However, in another California county, attorneys representing another man charged with murder and rape ifiled a similar motion. Judge John Kennedy ordered the Sheriff’s Department to seal the names of the expert witnesses who visited Kemp, saying they are privileged information.
As stated in the Contra Costa Times:
The disagreement focuses on a 2000 ruling by the California Supreme Court.
A panel of justices ruled in California v. Boddington that a trial judge mistakenly allowed a prosecutor to ask psychiatry expert witness whether they were aware of the opinions of other psychiatrists who examined the defendant but did not testify. The jury could have inferred that those who did testify were less reliable.
Stark said this week that the high court’s opinion does not stop prosecutors from finding out the names of experts. She said that once the case goes to trial, the judge should decide whether the prosecutors can use the information.