dissenting:
With all due respect to the majority opinion, I dissent because I believe that Pawlyk’s due process rights were violated when the prosecution introduced the testimony of Dr. Harris, whom the defense had selected as a defense psychiatrist but chose not to offer as a witness. In my view, a psychiatrist retained to assist the defense is not to be treated as a run-of-the-mill witness; due process requires recognition of his or her position as a member of the defense team.1 Defense counsel should be able to employ the services of *829such a psychiatrist in preparing an insanity defense without running the risk of involuntarily creating evidence for the prosecution.
The Supreme Court portrayed clearly the role of the defense psychiatrist in Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), which held that an indigent defendant whose sanity is likely to be a significant factor at trial was entitled to a psychiatrist at state expense. Ake said:
[Wjithout the assistance of a psychiatrist to conduct a professional examination on issues relevant to the defense, to help determine whether the insanity defense is viable, to present testimony, and to assist in preparing the cross-examination of a State’s psychiatric witnesses, the risk of an inaccurate resolution of sanity issues is extremely high.
Ake, 470 U.S. at 82, 105 S.Ct. 1087. Needless to say, several of these functions are often essential to an effective defense. Indeed, the Court considered the furnishing of a psychiatrist as one more step in the process of providing the defendant with the “ ‘basic tools of an adequate defense or appeal,’ ” id. at 77, 105 S.Ct. 1087 (quoting Britt v. North Carolina, 404 U.S. 226, 227, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971)), — a process that included the furnishing of counsel to indigent defendants, see id. at 76, 105 S.Ct. 1087 (citing Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963)). Thus a psychiatrist must be furnished to the defense because his or her assistance “may well be crucial to the defendant’s ability to marshal his defense.” Id. at 80, 105 S.Ct. 1087.
There can be little doubt, therefore, that the Supreme Court in Ake viewed the psychiatrist as an integral part of the defense team. Indeed, then-justice Rehnquist dissented partly on the ground that “[a] psychiatrist is not an attorney, whose job it is to advocate.” Id. at 92, 105 S.Ct. 1087 (Rehnquist, J., dissenting).
It was against this background that our court decided Smith v. McCormick, 914 F.2d 1153 (9th Cir.1990), the rationale of which controls Pawlyk’s case. In Smith, the defendant requested a state-appointed psychiatrist to assist the defense in presenting a case of mitigation in the penalty phase of a death penalty case. Instead of appointing a psychiatrist to aid the defense, the state court appointed a neutral psychiatrist to report directly to the court. We held that this procedure failed to provide Smith with due process of law.2 See id. at 1158-59. Some of our reasoning is highly relevant to Pawlyk’s case. We observed that a defense psychiatrist, rather than a neutral psychiatrist, was essential because “[competent counsel would want to refrain from introducing harmful testimony to the factfinder, but could still ask the court-appointed psychiatrist to consider other lines of analysis and to help prepare other forms of defense.” Id. at 1159. Indeed, counsel “might choose not to present testimony on certain forms of mental impairment at all.” Id. Most important for present purposes, we stated:
We further note that since defense counsel cannot predict the outcome of a psychiatric evaluation, to grant court-appointed psychiatric assistance only on condition of automatic full disclosure to the fact finder impermissibly compromises presentation of an effective de*830fense, by depriving him of an “adequate opportunity to present [his] claims fairly within the adversary system.” [Ake, 470 U.S. at 77, 105 S.Ct. 1087 (internal quotation marks and citation omitted).] Competent psychiatric assistance in preparing the defense is a “basic tool” that must be provided to the defense. Id. To impose such a condition as full disclosure takes away the efficacy of the tool.
Id. at 1159 (emphasis added). We went on to quote at length from the decision of the Third Circuit in United States v. Alvarez, 519 F.2d 1036 (3d Cir.1975), which held communications to a defense psychiatrist to be privileged:
The issue here is whether a defense counsel in a case involving a potential defense of insanity must run the risk that a psychiatric expert whom he hires to advise him with respect to the defendant’s mental condition may be forced to be an involuntary government witness. The effect of such a rule would, we think, have the inevitable effect of depriving defendants of the effective assistance of counsel in such cases.... Disclosures made to the attorney cannot be used to furnish proof in the government’s case. Disclosures made to the attorney’s expert should be equally unavailable, at least until he is placed on the witness stand. The attorney must be free to make an informed judgment with respect to the best course for the defense without the inhibition of creating a potential government witness.
Smith, 914 F.2d at 1160 (quoting Alvarez, 519 F.2d at 1046-47). Having quoted this and other passages from Alvarez, we then flatly said in Smith: “We agree with the Third Circuit that a defendant’s communication with her psychiatrist is protected up to the point of testimonial use of that communication.” Id. (emphasis added).3
These pronouncements all apply to Paw-lyk’s case. Defense counsel retained Dr. Harris as a defense psychiatrist but elected not to have him testify. The effect of the State’s compelling Dr. Harris to testify as a prosecution witness was to impose upon Pawlyk’s counsel the very condition that Alvarez and Smith held to be an impermissible interference with the preparation of a defense. Part of the defense team was compelled to become part of the prosecution team. Our precedent in Smith does not permit that procedure.
The majority opinion emphasizes that the Constitution requires only one defense psychiatrist to be appointed at state expense, see Ake, 470 U.S. at 79, 105 S.Ct. 1087, and that, if Dr. Harris alone had been so appointed, Pawlyk might well have been forced to introduce Dr. Harris’s testimony or abandon his insanity defense. That argument assumes that Pawlyk’s insanity defense could not have been based on other evidence, a point that has never been explored. In any event, the majority’s hypothetical misses the point. As I have just explained, the constitutional evil that Smith and Alvarez labored to avoid was the interference with defense counsel’s effective representation caused by the threat that counsel might unwillingly produce evidence for the prosecution. That interference occurred here.
The majority opinion takes the view that the defense necessarily made Dr. Harris available to the prosecution when it put on an insanity defense and presented *831the testimony of Dr. Tanay in support of it. It states that Buchanan v. Kentucky, 483 U.S. 402, 425, 107 S.Ct. 2906, 97 L.Ed.2d 336 (1987), and Estelle v. Smith, 451 U.S. 454, 465, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), placed Pawlyk’s counsel on notice that when Pawlyk submitted to a psychiatric examination by Dr. Harris, the results could be used by the prosecution in rebuttal of an insanity defense. Buchanan and Estelle v. Smith, however, dealt respectively with the right to remain silent in the face of questioning by a neutral, court-appointed psychiatrist, and with the right of defendant’s counsel to be present at such an interview. The fact that the prosecution can make use of such neutral psychiatrists, once an insanity defense is asserted, says nothing with regard to the prosecution’s right to use a non-testifying defense psychiatrist when such a defense is asserted.4 Moreover, our decision in Smith states that a defendant’s communication with a defense psychiatrist is protected from the prosecution until the defense makes “testimonial use of that communication.” Permitting the State to use Dr. Harris’s testimony merely because the defense raised the insanity issue and called Dr. Tanay is utterly inconsistent with the rationale of Smith, and of Alvarez upon which it relies. It puts the defense at risk of creating a prosecution witness when it employs Dr. Harris in preparation of the defense. As Alvarez stated, “[t]he attorney should not be inhibited from consulting one or more experts, with possibly conflicting views, by the fear that in doing so he may be assisting the government in meeting its burden of proof.” Alvarez, 519 F.2d at 1047 (emphasis added). The State’s action in using Dr. Harris as a prosecution witness creates precisely such an impermissible effect; under our ruling in Smith it denied Pawlyk due process of law.
I recognize that some other circuits have ruled that assertion of an insanity defense opens the door to prosecutorial use of a defense expert’s report. See Lange v. Young, 869 F.2d 1008, 1012-14 (7th Cir.1989); Noggle v. Marshall, 706 F.2d 1408, 1415-17 (6th Cir.1983); Granviel v. Estelle, 655 F.2d 673, 682-83 (5th Cir.1981). As the State points out, these cases suggest that the scope of the psychiatrist-patient privilege is not a constitutional issue. Unlike those circuits, however, we are subject to the precedential effect of our Smith decision, which clearly did view the issue as constitutional and decided it in favor of the defendant. Moreover, with all due respect to these other circuits, I find Smith’s position more persuasive. I am supported in this view by Justice Marshall, the author of Ake, who dissented from the denial of review of the Sixth Circuit’s decision in Granviel:
Ake mandates the provision of a psychiatrist who will be part of the defense team and serve the defendant’s interests in the context of our adversarial system. To allow the prosecution to enlist the psychiatrist’s efforts to help secure the defendant’s conviction would deprive an indigent defendant of the protections *832that our adversarial process affords all other defendants.
Granviel v. Texas, 495 U.S. 963, 963, 110 S.Ct. 2577, 109 L.Ed.2d 758 (1990) (Marshall, J., dissenting from denial of certiorari).
I conclude, therefore, that, under Alee and our decision in Smith, the State violated Pawlyk’s due process rights when the prosecution compelled the rebuttal testimony of Dr. Harris, a psychiatrist who had been retained to help prepare and present a defense but who had not testified or otherwise supplied evidence at the trial.
The error was not harmless. Dr. Harris was the only prosecution expert who had examined Pawlyk, and his rebuttal testimony was by far the most forceful on the crucial disputed issue — Pawlyk’s mental state at the time he committed the offenses, The fact that Dr. Harris was originally retained to aid the defense was exploited by the State in argument. In my view, Dr. Harris’s testimony “‘had substantial and injurious effect or influence in determining the jury’s verdict.’” Brecht v. Abrahamson, 507 U.S. 619, 631, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). At the very least, we should be left with a “grave doubt as to harmlessness,” requiring us to overturn the conviction. O’Neal v. McAninch, 513 U.S. 432, 437, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995).
For these reasons, I dissent from the decision of the majority, and would reverse the district court’s judgment and remand with instructions to issue the writ unless the State, within a reasonable time, initiates a retrial of Pawlyk.5
. The role of the defense psychiatrist is to be distinguished sharply from that of a neutral, court-appointed psychiatrist. In cases where an insanity defense is asserted, Washington law provides for the court appointment of two qualified experts, one of whom must be approved by the prosecuting attorney, to examine the defendant and report to the court. See Wash. Rev.Code § 10.77.060(l)(a). Such a report may constitutionally be made available to the prosecution. See Buchanan v. Kentucky, 483 U.S. 402, 423-24, 107 S.Ct. 2906, 97 L.Ed.2d 336 (1987). The prosecution did not, however, follow that route in Pawlyk’s case. Instead, it subpoenaed the psychiatrist that Pawlyk had retained to assist in his defense.
. The Tenth Circuit has similarly concluded that Ake establishes the right to a partisan expert. See, e.g., United States v. Crews, 781 F.2d 826, 834 (10th Cir.1986). The Fifth and Eleventh Circuits, however, have reached a contrary conclusion. See, e.g., Glass v. Blackburn, 791 F.2d 1165, 1169 (5th Cir.1986); Henderson v. Dugger, 925 F.2d 1309, 1315-16 (11th Cir.1991), modified, 968 F.2d 1070 (11th Cir.1992).
. The State suggests that this quoted statement is dictum. I disagree. Our court in Smith was required to decide the extent to which the prosecution could compel disclosure of a defense-selected, A/ce-expert’s opinions. Rather than announce an all-or-nothing rule, Smith adopted the limiting principle outlined in Alvarez. The limitation is integral to the Smith decision.
. It is also problematic to hold that Pawlyk’s counsel was placed on notice that Dr. Harris’s testimony might be used by the prosecution, when the State’s discovery rules seemed to require disclosure only of witnesses the defense intended to call or of reports that it intended to introduce into evidence. See State v. Pawlyk, 115 Wash.2d 457, 481-87, 800 P.2d 338, 351-55 (1990) (dissenting opinion). Although I agree with the implicit holding of the majority here that the Washington Supreme Court's majority ruling in Pawlyk was not so surprising as to violate due process independently, it was sufficiently unexpected that Pawlyk's counsel cannot be charged with notice that Dr. Harris’s testimony could be used if he was not called by the defense.
. I agree with the majority that Pawlyk’s other claims lack merit. The trial court's insanity instructions to the jury, taken as a whole, were neither incorrect, misleading nor contradictory. The trial court’s definition of the aggravating factor of a "common scheme or plan” was permitted by slate law; it did not relieve the State of its burden of proof beyond a reasonable doubt, nor did it create a presumption of guilt.