dissenting.
I respectfully dissent.
*402I.
The trial court’s decision to exclude the psychiatrist as an expert witness was an abuse of discretion.
A defendant has a fundamental right under the due process clauses of the United States and Colorado Constitutions to present witnesses and relevant evidence in defense of the charges against him. See Taylor v. Illinois, 484 U.S. 400, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988). A court cannot prevent a defendant from establishing his innocence by arbitrarily excluding witnesses from testifying. See People v. Bueno, 626 P.2d 1167 (Colo.App.1981).
An expert witness' analysis of evidence is often as critical to a case as the evidence itself. A jury evaluates the evidence for the inferences and conclusions to be drawn from it, and an expert witness can be a critical aid in assisting the jury in this task. Miller v. District Court, 737 P.2d 834 (Colo.1987).
As the Miller court noted:
“[Pjsychiatry has come to play a ‘pivotal role’ in criminal proceedings where the defendant’s mental condition is in issue.”
Indeed, as the United States Supreme Court in Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), stated:
“When the state has made the defendant’s mental condition relevant to his criminal culpability and to the punishment he might suffer, the assistance of a psychiatrist may well be crucial to the defendant’s ability to marshal his defense.”
Here, the trial court’s exclusion of the psychiatric witness erroneously precluded an important defense witness from providing expert testimony as to defendant’s state of mind, regarding, but not limited to, the elements of heat of passion.
Both Becksted v. People, 133 Colo. 72, 292 P.2d 189 (1956) and People v. Diaz, 644 P.2d 71 (Colo.App.1981) stand for the proposition that, when a defendant may be convicted of manslaughter or murder, the refusal of the trial court to allow expert psychiatric testimony on the issue of defendant’s state of mind is error. In my view, Becksted and Diaz are dispositive here. In Diaz, the court held that the psychiatric expert opinion was admissible to show defendant’s state of mind at the time of the killing even though this was the ultimate question for the jury. See also Ferrin v. People, 164 Colo. 130, 433 P.2d 108 (1967); People v. Martinez, 43 Colo.App. 419, 608 P.2d 359 (1979).
Here, the trial court determined that a juror understands, without expert assistance, the state of mind involved in the charges brought against defendant. I cannot agree with such a sweeping conclusion.
CRE 702 states that an expert can testify if that testimony will aid the jury. An expert opinion should only be excluded if it is superfluous, a waste of a jury’s time, and not helpful. Robertson v. McCloskey, 676 F.Supp. 351 (D.D.C.1988).
In determining that a psychiatrist could not assist jurors in evaluating heat of passion manslaughter concepts and in otherwise evaluating defendant’s state of mind, the majority and trial court mispereeive both the purpose of CRE 702 and the ability of psychiatrists to explain complex psychological concepts to the jury.
CRE 702 is an acknowledgement that, in an increasingly complex society, expert witnesses will, and should, be involved in analyzing and explaining difficult matters to both juries and judges. The state of mind of a person charged with homicide and passionate manslaughter is clearly an example of such a complex matter. See People v. Diaz, supra; Becksted v. People, supra.
Typically, a psychiatrist’s education includes four years of medical school and at least a three year residency. This is only the beginning of a life long inquiry into the myriad workings of the human mind. Because of this training and experience, a psychiatrist is able to assist jurors, who lack such training, in evaluating the concepts found in murder with deliberation and heat of passion manslaughter. Therefore, under CRE 702, it was an abuse of discretion to exclude the psychiatrist’s testimony.
*403II.
Furthermore, in my view, the People’s cross-examination of defendant with statements made by him to the psychiatrist was error. In Miller v. District Court, supra, the court determined that, unless defendant signifies an intention to use expert testimony at trial, the defendant’s right to effective assistance of counsel is subverted when at trial the prosecution uses an expert’s report which has been prepared for the defense.
The Miller holding relies in part on ABA, Criminal Justice Mental Health Standards, Standard 7-3.3(b) (1984) in not permitting the use by the prosecution of statements made by defendant to a psychiatrist if, as here, the psychiatrist does not testify and the prosecution was not restricted in obtaining other psychiatric testimony. The commentary to Standard 7-3.3(b) articulates several policy reasons necessitating this confidentiality: (1) waiver of confidentiality would have a ‘chilling effect’ upon a client’s willingness to confide in counsel or defense consultants; (2) inherent prejudice results if the trier of fact learns that a mental health or mental retardation professional originally was employed by the defense; (3) if waiver is recognized the defense in essence would assist the prosecution in discharging its burden of proof; (4) the defendant would be inhibited from consulting any mental health or mental retardation professionals with conflicting views for fear of generating prosecution witnesses; and (5) the defense would be inhibited from consulting any mental health or mental retardation professionals even though consultation might be crucial to the case. State v. Mingo, 77 N.J. 576, 392 A.2d 590 (1978).
I would hold that the confidentiality of the communication between defendant and his examining psychiatrist is not waived for purposes of use at trial because the .compulsory discovery processes of the court mandate its release to the prosecution. The information obtained by the interview between the prosecutor and the psychiatrist here is comparable to the expert report in State v. Mingo.
Furthermore, even if the attorney-client privilege is waived here, I would hold that the use of defendant’s statements made to the prosecutors as a result of compulsory discovery where the expert does not testify violates defendant’s Sixth Amendment right to effective assistance of counsel. The prosecution did not call the psychiatrist in its case-in-chief; rather, it cross-examined defendant with statements made to the psychiatrist which it discovered under Crim.P. 16.
Several courts have rejected the use of this testimony for impeachment. In State v. Pratt, 284 Md. 516, 398 A.2d 421 (1979), the court found that the prosecution’s use of a defense expert as a rebuttal witness violated the attorney-client privilege and also noted the possible impact on Sixth Amendment rights. See also State v. Moore, 45 Or.App. 837, 609 P.2d 866 (1980); State v. Kociolek, 23 N.J. 400, 129 A.2d 417 (1957). These courts found that the prosecution’s use of a defense psychiatrist as rebuttal witness violated the attorney-client privilege.
In Hutchinson v. People, 742 P.2d 875 (Colo.1987), the court stated:
“We believe the confidentiality and loyalty of expert consultants traditionally enjoyed by defendants and defense counsel is a crucial element in the effective legal representation of the defendant. A relationship of trust permits the defendant, counsel and the expert to engage in a full and frank interchange, affording counsel an accurate and honest assessment of the defendant’s case. Without such a relationship, the assistance of the expert, and thus defense counsel, is likely to be ineffective.
Consequently, the prosecution should not be permitted to intrude upon this relationship as a matter of course and convert a defense expert into a potential witness-in-chief against the defendant. We can imagine few intrusions more disruptive to the efforts of defense counsel.”
I consider protecting defendant’s Sixth Amendment right and his attorney-client privilege to be the basis of analysis in both *404Miller v. District Court and Hutchinson v. People. I would hold that, when the expert does not testify, the use of such statements, when obtained through compulsory discovery process, is improper even for impeachment purposes, because it undermines defendant’s Sixth Amendment right to effective assistance of counsel and his attorney-client privilege.
Finally, besides these specific considerations, I find it fundamentally inequitable to deprive defendant of a potential shield inherent in the psychiatric evidence and then to use that evidence as a weapon against him.
I would reverse and remand for new trial.