Insanity defense (Georgia)

Notes and reports of mental health experts examining defendant for purposes of assisting defense counsel in regard to possible insanity defense are protected from discovery by the attorney-client privilege, as long as the experts do not testify at trial and the experts who do testify do not use that information

Neuman v. State No. S15A0011, 2015 WL 3658828 (Ga. June 15, 2015)

Hemy Neuman was tried for murder and firearm possession in Georgia state court; he pleaded not guilty and intended to raise the insanity defense. The jury eventually found the defendant guilty but mentally ill, and Neuman appealed on the grounds that the trial court improperly admitted evidence protected by attorney-client privilege. During discovery, the State sought the records of doctors retained by defense counsel as consultants on the issue of Neuman’s mental condition. Over Neuman’s objection, the trial court admitted the records, including statements Neuman had made during the doctors’ evaluations, even though defense counsel had not intended to call the doctors as witnesses at trial.

The Georgia Supreme Court held the doctors’ notes, evaluations, and the statements made to them by the defendant were all protected by the attorney-client privilege. It rejected the State’s argument that “merely raising an insanity defense waives the attorney-client privilege for these communications.” The Court joined “numerous other jurisdictions in holding that the attorney-client privilege applies to confidential communications, related to the matters on which legal advice is being sought, between the attorneys, their agents, or their client, and an expert engaged by the attorney to aid in the client's representation.” The Court further held that privilege is “not waived if the expert will neither serve as a witness at trial nor provide any basis for the formulation of other experts' trial testimony.” The Court did note, however, that if counsel later decided to include the expert or experts as witnesses at trial, “the cloak of privilege ends.”

Found in DMHL Volume 34 Issue 2