Appeal from the Circuit Court of Ogle County. No. 99--CF--8 Honorable John B. Roe, Judge, Presiding.
The opinion of the court was delivered by: Justice Geiger
The contemnor, Joseph Spiezer, appeals from the September 8, 1999, order of the circuit court of Ogle County finding him in direct civil contempt and ordering him incarcerated until such time as he turned over to the State a copy of a certain report made by a handwriting expert. Spiezer, an attorney, had been retained by Eva E. Castro to defend her against a charge of first-degree murder. Spiezer had consulted with a handwriting expert, Anthony Iantosca, who subsequently made a report. The trial court ordered Spiezer to turn over a copy of the report to the State, but he refused, resulting in the contempt finding and jail sentence. Spiezer argues that the trial court's order should be reversed because the report is not discoverable, as disclosure would violate the following of Castro's constitutional rights: the sixth amendment right to effective assistance of counsel, the fifth amendment privilege against self-incrimination, and the right to equal protection of the laws. In addition, Spiezer argues that an attorney should not be held in contempt for failing to turn over a document that the court has in its possession.
On May 6, 1999, the trial court entered an order granting Castro's motion appointing expert witnesses whose fees were to be paid by the State. One such expert was Anthony Iantosca, who was to perform a handwriting analysis on an item that was to be used by the State as evidence at trial. On or about May 20, 1999, Iantosca provided his report to Spiezer. On July 13, 1999, the State filed its motion to produce, pursuant to Supreme Court Rule 413(c) (134 Ill. 2d R. 413(c)), requesting production of the Iantosca report.
On July 28, 1999, the trial court granted the State's motion. In its ruling, the trial court acknowledged that Spiezer had indicated that he did not intend to call Iantosca at trial. The trial court found that Iantosca's report "is purely scientific in nature and doesn't include any statements made by [Castro]." The trial court ordered Spiezer to provide the State with a copy of the report by August 9, 1999. At that time, Spiezer requested a "final and appealable order," stating, "I don't intend to comply with that, and with all due respect, I don't think I can *** in fairness to my client."
At the hearing on August 9, 1999, the parties appeared before the trial court, and Spiezer again advised of his refusal to turn over the report. The trial court indicated that its order would not be final and appealable and that the court was unaware of a procedure permitting it to certify the question to the appellate court. The trial court then indicated that it would modify its prior order regarding the turnover of the report by appointing another judge, Judge Pemberton, to review the report in camera to determine if it contained anything prejudicial. Spiezer then agreed to provide a copy of the report for Judge Pemberton's review.
On September 2, 1999, the parties appeared before the trial court and advised that Judge Pemberton had indicated to Spiezer that the report was not privileged and that he was to turn over the report to the State. Spiezer again stated that he would not turn over the report.
At a pretrial hearing on September 8, 1999, the trial court made a finding that Spiezer's refusal to turn over the report was a willful violation of the court's orders and further found Spiezer in direct civil contempt of court. The trial court ordered that Spiezer be incarcerated in the Ogle County jail until he complied with the court order. The court noted that it had "other alternatives, obviously, rather than incarcerating [him], but none of them produce the report." The court stated that imposing a fine upon Spiezer would not produce the report and that barring Spiezer from calling Iantosca at trial would be of no effect since Spiezer did not intend to call him. The trial court then ordered a court officer to escort Spiezer to jail.
On September 10, 1999, Spiezer filed a motion to stay enforcement of the judgment of contempt, arguing that he had acted in good faith to challenge the order and that his incarceration approximately two weeks prior to jury trial would deprive Castro of her right to the effective assistance of counsel. Spiezer argued that he intended to appeal the contempt order and requested that he be released from jail pending the appeal. The trial court denied the motion. On that same day, Spiezer filed a notice of appeal.
Later that day, this court entered an order staying the judgment of civil contempt until September 14, 1999, for consideration on an emergency basis by a three-judge panel of the appellate court. This court further ordered that Spiezer be released. On September 15, 1999, this court allowed Spiezer's motion to stay upon plenary consideration. This court further ordered that Spiezer remain released from custody until further order of this court. Thereafter, the trial court continued the Castro jury trial.
We have taken with the case the State's motion to strike certain portions of Spiezer's appellate brief. The State alleges that Spiezer attached to his brief copies of certain reports of proceedings, rather than filing a motion to supplement the record, in violation of Supreme Court Rule 323 (166 Ill. 2d R. 323). The State moves to strike the transcripts and all references to them. We deny the State's motion, as we believe that Spiezer has provided in the supplemental report of proceedings sufficient portions of the trial court record for this court to render our decision and that any materials attached to his brief do not shed any light on the legal issues presented by this case.
Turning now to the merits of the contempt proceeding, Spiezer sets forth various constitutional arguments with regard to the validity of the discovery order. The first is that compelling a criminal defendant to produce the reports of non-testifying, consulting experts violates the defendant's right to effective assistance of counsel under the sixth amendment. The State responds that a report of a handwriting analysis would not reveal privileged communications and that a handwriting consulting expert is not indispensable to Spiezer's preparation.
Discovery in criminal proceedings is governed, in part, by Supreme Court Rule 413. See 134 Ill. 2d R. 413. Rule 413(c), pertaining to medical and scientific reports, provides as follows:
"Subject to constitutional limitations, the trial court shall *** require that the State be informed of *** any reports or results, or testimony relative thereto, *** of scientific tests *** or any other reports or statements of experts which defense counsel has in his possession or control ***." 134 Ill. 2d R. 413(c).
In addition, Rule 413 is subject to the work product exception set forth in Rule 412(j):
"Disclosure under this rule and Rule 413 shall not be required of legal research or of records, correspondence, reports or memoranda to the extent that they contain the opinions, theories or conclusions *** of defense counsel or his staff." 134 Ill. 2d R. 412(j).
Neither Rule 413(c) nor the case law surrounding it, unlike Rule 213(g), which is its counterpart in the civil arena, expressly provides whether Rule 413(c) applies to non-testifying as well as testifying experts. As such, it is necessary for us to determine whether a constitutional right or some other privilege protects reports of non-testifying, consulting experts from disclosure in criminal cases.
The use of expert witnesses in specialized fields is clearly crucial to a criminal defense attorney's ability to prepare for trial. In People v. Lawson, 163 Ill. 2d 187, 219 (1994), our supreme court considered whether the trial court had erred in denying the defendant's motion for funds to hire a fingerprint and shoe print expert for preparation in the defendant's murder trial. The State admitted that the constitution may require that the State afford a criminal defendant funds to hire experts, but it argued that the indigent defendant must first name the expert he seeks to hire, as well as the expert's fee, before the motion may be granted. The court disagreed, holding that the constitutional protections could not be limited by the mere failure to name the price and identity of the expert hired. The court was particularly moved by the results of defense counsel's ineffective cross-examination of the State's expert, which resulted from counsel's inability to prepare without expert assistance. The court also noted that a defense expert could offer opinions different from those held by the State and that the State possessed an unfair advantage when it could present expert testimony while, at the same time, the defendant could not. Lawson, 163 Ill. 2d at 230.
Once the expert has performed the necessary work for the defense but then rendered an opinion or conclusion that is unfavorable to the defendant, sharp disputes have arisen concerning whether defense counsel must disclose that information. As discussed below, many jurisdictions have held that the reports prepared by non-testifying, consulting experts are protected from disclosure. What is unclear, however, is the proper framework for the analysis. Four distinct bases for such protection have emerged in the case law discussed below: the fifth amendment privilege ...