The Honorable Justice McMORROW delivered the opinion of the court: Justice Miller, concurring in part and dissenting in part: Justice Heiple, dissenting: Chief Justice Bilandic joins in this dissent.
The opinion of the court was delivered by: Mcmorrow
JUSTICE McMORROW delivered the opinion of the court:
The primary issue raised in this appeal is whether Illinois will permit the application of the attorney-client privilege to communications between a defendant who raises an insanity defense and the psychiatrist who examines the accused at the request of defense counsel to aid in preparation of the defense.
Defendant, Pamela J. Knuckles, was charged in the circuit court of Du Page County with the 1984 slaying of her mother, Nancy Knuckles. She pleaded guilty, but that plea was later set aside on grounds of ineffective assistance of counsel. The State reinstated murder charges in 1990, and, in preparation for trial, the State issued two subpoenas to Dr. Kyle Rossiter, a psychiatrist who had examined Knuckles at her counsel's request approximately two weeks after the killing. Defense counsel disclosed other expert witnesses expected to testify for the defendant and indicated that the defense did not plan to call Dr. Rossiter to testify at trial. Knuckles moved to quash the subpoenas served on the psychiatrist and thereby preclude the State from discovering or using the psychiatrist's notes and testimony in its case. The motion to quash was sustained. The State appealed from the trial court's order quashing the subpoenaes. The appellate court affirmed (226 Ill. App. 3d 714), and we granted the State's petition for leave to appeal (145 Ill. 2d R. 315).
In November 1984, Pamela Knuckles and her brother, sister, and others were charged with killing Nancy Knuckles by strangulation and suffocation. Pamela Knuckles' court-appointed public defender obtained court authorization to retain a psychiatrist to interview her. The psychiatrist, Dr. Kyle Rossiter, met with Knuckles at the Du Page County jail approximately two weeks after the murder. He took notes of her statements but did not prepare a written report, nor did he testify at any proceeding involving her. Knuckles' counsel disclosed to the State in April 1985 that the defense would not be offering evidence of physical or mental examinations or scientific tests. Following plea negotiations, Knuckles pleaded guilty and was sentenced to 33 years in prison.
New attorneys entered an appearance on Knuckles' behalf and in January 1989, Knuckles filed a post-conviction petition challenging the validity of her guilty plea on grounds of ineffective assistance of counsel. Her petition stated that she had pleaded guilty because her appointed counsel advised her that if she went to trial she faced the death penalty. However, at the time of the killing, Knuckles was 17 years old and would have been exempted from the death penalty under Illinois law. Following an evidentiary hearing, the trial court granted Knuckles' post-conviction petition and allowed her to withdraw her plea of guilty.
Knuckles' attorneys retained several experts to evaluate Knuckles' history of physical and psychological abuse and her mental state at the time of the charged offenses. Pursuant to Supreme Court Rule 413(d), the defense lawyers notified the prosecution that their client would rely on two defenses at trial: insanity and self-defense. At the same time, the defense disclosed the names of its five expert witnesses, the experts' reports, and test results indicating the possibility that Knuckles suffered from a brain abnormality. Dr. Rossiter was not among the experts whom the defense listed as witnesses for trial.
The State then served two subpoenas on Dr. Rossiter. One sought any written memoranda he had made of his interview with Knuckles and the other sought to compel his testimony at trial. The State also invoked its statutory right to compel Knuckles to submit to a psychiatric examination by an expert retained by the State.
On July 20, 1990, the trial court quashed the two subpoenas that had been issued to Dr. Rossiter. The court held that a psychiatrist hired by defense counsel to examine the client for purposes of trial preparation is an agent of defense counsel and therefore the communications between the defendant and the defense-retained psychiatrist are protected by the attorney-client privilege. The trial court further held that the privilege is not waived by the assertion of the insanity defense; the State is not allowed to discover or elicit the opinions and notes of the defense psychiatrist unless the psychiatrist testifies at trial. Finally, the trial court held that the opinions and notes or findings of the psychiatrist in such a case are protected by the work-product doctrine (134 Ill. R. 2d 412(j)(i)).
The State filed an interlocutory appeal from the trial court's order quashing the subpoenas. Before filing the notice of appeal, the State retained its own expert witness, who examined defendant.
The appellate court affirmed the trial court's ruling, noting that the applicability of the attorney-client privilege in this context is a matter of first impression in Illinois.
This appeal highlights the tension between two competing policies: one that favors the broad discovery of relevant information and another that guards the narrow discovery exemptions, based on privilege, which are deeply rooted in the common law and the Federal and State Constitutions. The State argues that since Dr. Rossiter is the only psychiatrist who examined Pamela Knuckles near the time her mother was killed, his impressions of Knuckles' mental state are of surpassing importance in this case. If the potential relevance of the information sought were the key to determining whether the attorney-client privilege should yield to the truth-seeking process, the State's argument would be persuasive. However, the policies underlying the privilege exist apart from and run counter to the primary goals of discovery. The raison d'etre of the privilege is to secure for the client the ability to confide freely and fully in his or her attorney, without fear that confidential information will be disseminated to others. See, e.g., People v. Adam (1972), 51 Ill. 2d 46, 48, 280 N.E.2d 205 (client's communications made in confidence to legal advisor are permanently protected from disclosure unless the privilege is waived); accord People v. Williams (1983), 97 Ill. 2d 252, 294, 73 Ill. Dec. 360, 454 N.E.2d 220; People v. Knippenberg (1977), 66 Ill. 2d 276, 6 Ill. Dec. 46, 362 N.E.2d 681 (privilege extends to communications made to defense lawyer's investigator).
Extension of the Attorney-Client Privilege to Communications
Between Defense Counsel and a Psychiatric Consultant
Initially, this court must determine whether the attorney-client privilege should be extended to communications made to or made by an expert witness, here a psychiatrist, whose engagement by the defense is necessary to the preparation of an insanity defense. No Illinois case has decided that precise issue. This court has observed that a privileged or protected communication does not have to be made directly to the attorney rather than an agent of the attorney, because the privilege "'protects communications to the attorney's clerks and his other agents (including stenographers) for rendering his services. The assistance of these agents being indispensable to his work and the communications of the client being often necessarily committed to them by the attorney or by the client himself, the privilege must include all the persons who act as the attorney's agents.' 8 Wigmore, Evidence sec. 2301, at 583 (McNaughton Rev. ed. 1961)." (Emphasis in original.) Knippenberg, 66 Ill. 2d at 283-84. See also State v. Hitopoulus (1983), 279 S.C. 549, 550, 309 S.E.2d 747, 748 (holding that psychiatrist was, "in effect, the attorney's agent for *** transmission to the attorney of confidential facts"); People v. Hilliker (1971), 29 Mich. App. 543, 548, 185 N.W.2d 831, 833 (attorney-client privilege extends to confidential communications "made to the attorney by an agent on behalf of the client, such as a doctor or psychiatrist").
A. Common Law Basis of Attorney-Client Privilege
The attorney-client privilege derives from traditional principles of common law. (See, e.g., People v. Adam (1972), 51 Ill. 2d 46, 280 N.E.2d 205.) The "work-product" doctrine is embodied in Supreme Court Rule 412(j)(i), which governs the attorney's right to the secrecy of the attorney's notes and legal strategies. (134 Ill. 2d R. 412(j)(i).) This rule protects from disclosure an attorney's work product to the extent the documents or memoranda contain "the opinions, theories ...