State v. Pratt

• Decision Date: 26 February 1979
• Docket Number: No. 43,43
• Citation: 398 A.2d 421,284 Md. 516
• Parties: STATE of Maryland v. Margaret Melton PRATT.
• Court: Maryland Court of Appeals

Page 516

284 Md. 516

398 A.2d 421

STATE of Maryland v. Margaret Melton PRATT.

No. 43.

Court of Appeals of Maryland.

Feb. 26, 1979.

Stephen Rosenbaum, Asst. Atty. Gen., Baltimore (Francis B. Burch, Atty. Gen. and Clarence W. Sharp, Asst. Atty. Gen., Baltimore, on the brief), for appellant.

Robert C. Heeney, Rockville (John M. Quinn, Rockville, on the brief), for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE and COLE, JJ.

DIGGES, Judge.

The question presented by this criminal cause is one of first impression in this State, and yet, it involves "the oldest of the privileges for confidential communications" that which exists between an attorney and his client. 8 J. Wigmore, Evidence in Trials at Common Law § 2290, at 542 (McNaughton rev. 1961). Stated succinctly, we are asked to decide whether this privilege was violated when, over objection, a psychiatrist, who was retained by defense counsel to examine his client in preparing an insanity defense, was permitted to testify at the instance of the prosecution. Because we conclude that this fundamental privilege was invaded, we will direct a new trial. ¹

The factual background here is uncomplicated and may be briefly related. On the morning of October 23, 1976, respondent Margaret Melton Pratt, after a sleepless night during which she contemplated the taking of her own life shot and killed her still-slumbering husband, William S. Pratt, in their Montgomery County apartment. After the shooting, the wife packed an overnight bag and drove to a friend's farm near Front Royal, Virginia, to visit the gravesite of her dog; she stayed several hours and then proceeded to a nearby motel to spend the night. The next morning Mrs. Pratt returned to her home and, after a short stay there, began driving aimlessly around the Bethesda-Rockville area. Realizing she would eventually be apprehended, the respondent went to the Montgomery County police and informed them of her husband's death. The officers, after verifying Mrs. Pratt's story concerning what had taken place, arrested her for murder.

Upon being indicted by the grand jury for murder and related offenses, the respondent entered pleas of not guilty and interposed a defense of insanity at the time of the commission of the alleged crimes, as is permitted by Maryland Rule 731 and section 25 of Article 59 of the Maryland Code (1957, 1972 Repl. Vol.). Thereafter, the Circuit Court for Montgomery County, as authorized by sections 23 and 25(b) of Article 59 of the Code (1957, 1972 Repl. Vol.), ordered that the Department of Health and Mental Hygiene conduct a mental examination of Mrs. Pratt to determine her "sanity or insanity at the present time and at the time of the commission of the crime, and . . . her competenc(y) to stand trial at the present time . . . ." After an examination, the department, by its report dated December 30, 1976, informed the court that Mrs. Pratt was presently competent to stand trial and was sane at the time of the commission of the alleged offenses. Trial on the indictment began on April 18, 1977, and three days later the jury found Mrs. Pratt was sane at the time of the commission of the alleged crimes and guilty of both murder in the second degree and the use of a handgun in the commission of a felony.

Throughout the trial, Mrs. Pratt did not dispute that she had killed her husband but, instead, strenuously urged that she was insane at the time she fired the fatal shots. In support of her insanity plea, respondent presented two psychiatrists, Dr. Gerald Polin and Dr. Leon Yochelson, who testified that at the time of the act Mrs. Pratt was, in their opinion, suffering from a mental illness of such severity that she lacked substantial capacity to conform her conduct to the requirements of the law. See Md.Code (1957, 1972 Repl. Vol.), Art. 59, § 25(a). In rebuttal, the State produced three psychiatrists, all of whom agreed that the respondent was suffering from some degree of mental disorder when the shooting took place. Nonetheless, two of these medical experts testified that, under Maryland law, Mrs. Pratt was legally responsible for her act. Of these two, one, Dr. Brian Crowley, had examined the accused at the request of her attorney after being retained by him to aid in preparing support for Mrs. Pratt's insanity plea. It is the evidence given by Dr. Crowley, who testified during the trial at the request of the State and over the objection of the defense, that precipitated the controversy now before us. On appeal to the Court of Special Appeals, that court concluded that the permitting of Dr. Crowley's testimony violated the attorney-client privilege and ordered a new trial. Pratt v. State, 39 Md.App. 442, 387 A.2d 779 (1978). We agree.

In this State the attorney-client privilege, deeply rooted in common law and now memorialized in section 9-108 of the Maryland Code's (1974) Courts Article, ² is a rule of evidence that forever bars disclosure, without the consent of the client, of all communications that pass in confidence between the client and his attorney during the course of professional employment or as an incident of professional intercourse between them. See Harrison v. State, 276 Md. 122, 135, 345 A.2d 830, 838 (1975); 3 B. Jones, The Law of Evidence § 21:8-:10, at 762-71 (6th ed. S. Gard 1972); 8 J. Wigmore, Supra, § 2292, at 554. The privilege is based upon the public policy that " 'an individual in a free society should be encouraged to consult with his attorney whose function is to counsel and advise him and he should be free from apprehension of compelled disclosures by his legal advisor.' " Harrison v. State, supra, 276 Md. at 135, 345 A.2d at 838 (quoting Morris v. State, 4 Md.App. 252, 254, 242 A.2d 559, 560 (1968)); Accord, 8 J. Wigmore, Supra, § 2291, at 545. While never given an explicit constitutional underpinning, the privilege is, nevertheless, closely tied to the federal, as well as this State's, constitutional guarantees of effective assistance of counsel and could, if limited too severely, make these basic guarantees virtually meaningless. Harrison v. State, supra, 276 Md. at 133-34, 345 A.2d at 837; United States v. Alvarez, 519 F.2d 1036, 1045-47 (3d Cir. 1975); See U.S.Const., amend. VI; Md.Decl. of Rts., Art. 21.

Initially we observe that, given the complexities of modern existence, few if any lawyers could, as a practical matter, represent the interest of their clients without a variety of nonlegal assistance. Recognizing this limitation, it is now almost universally accepted in this country that the scope of the attorney-client privilege, at least in criminal causes, embraces those agents whose services are required by the attorney in order that he may properly prepare his client's case. Consequently, in line with the views of the vast majority of the courts in our sister jurisdictions, we have no hesitancy in concluding that in criminal causes communications made by a defendant to an expert in order to equip that expert with the necessary information to provide the defendant's attorney with the tools to aid him in giving his client proper legal advice are within the scope of the attorney-client privilege. E. g., United States v. Alvarez, supra, 519 F.2d at 1046 (psychiatrist); United States v. Kovel, 296 F.2d 918, 922 (2d Cir. 1961) (accountant); People v. Lines, 13 Cal.3d 500, 119 Cal.Rptr. 225, 232-35, 531 P.2d 793, 800-03 (1975) (psychiatrist); Accord, 3 B. Jones, Supra, § 21:15, at 786-87. But cf. State v. Mingo, 143 N.J.Super. 411, 363 A.2d 369, 370-71 (1976) (per curiam) (because defendant's handwriting exemplars not privileged communications State's solicitation at trial of opinion of defense-hired grapholotist as to identity of handwriting on note sent to assault victim not barred by attorney-client privilege). This is uniquely so in cases concerning the question of a criminal defendant's sanity, because the need of an attorney to consult with a qualified medical expert is paramount. Such a medical expert not only provides testimony that usually is necessary at trial to support an insanity defense, but also "attunes the lay attorney to unfamiliar but central medical concepts and enables him, as an initial matter, to assess the soundness and advisability of offering the defense . . . and perhaps most importantly, . . . permits a lawyer inexpert in the science of psychiatry to probe intelligently the foundations of adverse testimony." United States v. Taylor, 437 F.2d 371, 377 n. 9 (4th Cir. 1971).

The State here does not dispute the inclusion of psychiatric communications within the scope of the attorney-client privilege; instead, it contends that when Mrs. Pratt interposed a defense of insanity, she waived the privilege with respect to all statements she may have made to any medical expert, whether in her employ or in that of the State. ³ While there is little doubt that a client may waive this right to confidentiality, which may be done either expressly or impliedly, See, e. g., Harrison v. State, supra, 276 Md. at 136-38, 345 A.2d at 839; 8 J. Wigmore, Supra, § 2327, at 634-39; But see 2 H. Underhill, Criminal Evidence § 333, at 841 (5th ed. P. Herrick 1956) (doubtful if any waiver of the privilege should be implied in criminal cause), we have been made aware of only one decision in which a court, the New York Court of Appeals, has held that raising the defense of insanity, without more, is a relinquishment of the attorney-client privilege as to communications between the client and his alienist. In its opinion the court justified its conclusion that a defendant's insanity plea waived the attorney-client privilege on the following basis:

A defendant who seeks to introduce psychiatric testimony in support of his insanity plea may be required to disclose prior to trial the underlying basis of his alleged affliction to a prosecution psychiatrist. Hence, where, as here, a defendant reveals to the prosecution the...