dissenting:
I respectfully dissent. I joined Justice Vollack in his dissent in Hutchinson v. People, 742 P.2d 875 (Colo.1987), because I believed, and still believe, that Hutchinson was wrongly decided. Perez v. People, 745 P.2d 650, (Colo.1987), illustrates the dangers of using the sixth amendment to bar the prosecution’s use of the defendant’s handwriting expert.
In this case, the defense expert, Mr. Bradley, testified at a Crim.P. 32(d) hearing that the defendant probably did not execute the forged checks. The testimony was offered to support the defendant’s motion to withdraw his guilty plea, which the defendant claimed was not voluntarily entered. The court granted the defendant’s motion. Thereafter, the defendant’s expert examined the forged checks, which defense counsel obtained from the Colorado Bureau of Investigation, and some of the defendant’s cancelled checks, and he changed his opinion by concluding that the defendant’s handwriting was on the checks in issue. Needless to say, the defense abandoned Bradley as an expert and sought to prevent the prosecution from using him as an expert at trial.
An expert is neither the alter ego nor the paid advocate for the defendant. His opinion is admitted only because he has expertise and training in a particular field that enables him to offer an opinion that will assist the jury in determining the truth. The exemplars in issue are noncommunica-tive and are nontestimonial evidence. Fisher v. United States, 425 U.S. 391, 408, 96 S.Ct. 1569, 1579-80, 48 L.Ed.2d 39 (1976); People v. District Court, 187 Colo. 333, 340, 531 P.2d 626, 630 (1975). The exemplars were properly obtained and should not be secreted in the truthfinding process. The opinion of an expert, who has testified for the defense at an earlier hearing, should not in my view be subject to use only if the defendant so desires.
Other jurisdictions have held that the prosecution’s use of opinion testimony of a defense psychiatrist, who was not called by the defendant to testify at trial, was admissible to refute the defendant’s insanity defense. In finding such testimony admissible, the courts rejected claims that the admission of the opinion testimony deprived defendants of the effective assistance of counsel under the sixth amendment. See United States v. Talley, 790 F.2d 1468, 1470-71 (9th Cir.), cert. denied, — U.S. -, 107 S.Ct. 224, 93 L.Ed.2d 152 (1986); Noggle v. Marshall, 706 F.2d 1408, 1413-16 (6th Cir.), cert. denied, 464 U.S. 1010, 104 S.Ct. 530, 78 L.Ed.2d 712 (1983); Granviel v. Estelle, 655 F.2d 673, 679-83 (5th Cir.1981), cert. denied, 455 U.S. 1003, 102 S.Ct. 1636, 71 L.Ed.2d 870 (1982); United States v. Smith, 425 F.Supp. 1038, 1046-55 (E.D. N.Y.1976), aff'd, 556 F.2d 556 (2d Cir.), cert. denied, 431 U.S. 958, 97 S.Ct. 2683, 53 L.Ed.2d 276 (1977); State v. Schneider, 402 N.W.2d 779, 787-88 (Minn.1987); State v. Dodis, 314 N.W.2d 233, 239-41 (Minn.1982); State v. Carter, 641 S.W.2d 54, 59 (Mo.1982), cert. denied, 461 U.S. 932, 103 S.Ct. 2096, 77 L.Ed.2d 305 (1983); Haynes v. State, 739 P.2d 497, 502 (Nev.1987). These cases are applicable to the prosecution’s use of the opinion testimony of the defendant’s handwriting expert in this case.
Hutchinson distinguished these cases on the grounds that they involved the use of the defendant’s expert on rebuttal and not in the prosecution’s case-in-chief and that *655the expert testimony only addressed the issue of the defendant’s sanity and not his guilt. The distinctions, however, are unconvincing. First, the analysis employed in the cases did not depend in any way upon the use of the opinion testimony on rebuttal. See State v. Craney, 347 N.W.2d 668 (Iowa) (use of defense expert in state’s case-in-chief did not violate the sixth amendment), cert. denied, 469 U.S. 884, 105 S.Ct. 255, 83 L.Ed.2d 192 (1984). Second, the resolution of the cases did not depend on the limited use of the expert opinion testimony on the insanity issue but on the disclosure by the expert of confidential communications made to him by the defendant that would implicate the defendant in the charged offense. See Granviel v. Estelle, 655 F.2d at 682 (“There is no affirmative evidence in the instant case showing that [the defense expert] revealed any fact or communication between him and [the defendant] showing that [the defendant] committed a crime of any nature.”)-, United States v. Smith, 425 F.Supp. at 1054 (“The statements by the defendant to his psychiatrist were not admitted to establish the fact of his having committed the murder, but only to establish a basis for the psychiatrist’s evaluation of petitioner’s sanity at the time of the offense.”) (emphasis added). In both Hutchinson and the present case, the defense’s handwriting expert gave only an opinion, based on his own observations, on whether the defendant signed certain documents; he did not disclose confidential communications made to him by the defendant that would establish the defendant’s guilt.
The conclusion that the prosecution’s use of the defense’s handwriting expert is not unconstitutional finds support in other cases interpreting the United States and Colorado Constitutions. The attorney-client privilege, which protects confidential communications between a client and his attorney, is itself not based on the sixth amendment of the United States Constitution. Bradt v. Smith, 634 F.2d 796, 800 (5th Cir.) (“Insofar as it arises in the context of litigation before the courts of the several states, the attorney-client privilege constitutes an evidentiary privilege that is secured by state law, and not by the Constitution or laws of the United States.”), cert. denied, 454 U.S. 830, 102 S.Ct. 125, 70 L.Ed.2d 106 (1981); United States v. Valle-Valdez, 554 F.2d 911, 916 (9th Cir.1977) (“Errors in such matters as ... rulings on the admissibility of evidence where Fourth Amendment claims are not involved ... generally have been considered ‘non-constitutional.’ ”). The Supreme Court has held that reciprocal rules of discovery are constitutional. See Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970) (upholding a Florida notice-of-alibi provision where there were reciprocal disclosure obligations placed on the prosecution); People v. District Court, 187 Colo. 333, 531 P.2d 626 (1975) (holding Crim.P. 16(c) constitutional). Moreover, the production of handwriting exemplars by the defendant is not a critical stage of the prosecution proceedings triggering the defendant’s right to counsel. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Sandoval v. People, 172 Colo. 383, 388-89, 473 P.2d 722, 725 (1970).
Public policy considerations weigh heavily in favor of disclosure of the opinions of handwriting experts. The fundamental purpose of a criminal trial is a fair determination of the truth. State v. Carter, 641 S.W.2d at 58. The prosecution does not have a fair opportunity to examine the defendant’s handwriting because the defendant generally does not desire to cooperate with the prosecution and may attempt to disguise his handwriting to avoid identification. Any prejudice to the defendant can be substantially reduced by excluding from the jury information that the expert was originally employed by the defendant. See id. at 58 (“The trier of the fact must not be ‘so effectively deprived of valuable witnesses as to undermine the public interest in the administration of justice.’ ”) (quoting Pouncy v. Florida, 353 So.2d 640, 642 (Fla.App.1977)); see also State v. Schneider, 402 N.W.2d 779, 788 (Minn.1987) (“Experts are not the paid harlots of either side in a criminal case and should not be portrayed
*656in such a light.”); People v. Speck, 41 Ill.2d 177, 200, 242 N.E.2d 208, 221 (1968) (“A witness is not the property of either party to a suit and simply because one party may have conferred with a witness and even paid him for his expert advice does not render him incompetent to testify for the other party.”), rev’d in part, 403 U.S. 946, 91 S.Ct. 2279, 29 L.Ed.2d 855 (1971). The prosecution has an affirmative duty to give the defendant exculpatory evidence and it seems only just that the prosecution should be able to use the opinion of a handwriting expert hired by the defendant but not used by the defendant to testify at trial. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963); Cheatwood v. People, 164 Colo. 334, 435 P.2d 402 (1967).
A defendant who seeks to introduce the testimony of a handwriting expert may be required to disclose his handwriting exemplars prior to trial. See Crim.P. 16 (stating prosecution’s discovery powers). Where, as here, a defendant reveals to the prosecution the very facts that he seeks to protect, there is no privacy interest to be protected. It follows that no harm accrues to the defense from seeking a handwriting expert’s advice because the underlying factual basis will be revealed to the prosecution’s expert. See State v. Dodis, 314 N.W.2d 233, 240 (Minn.1982) (“Because the prosecution may ‘use’ all reports and records that bear on the issue of mental illness, it should have the right to call a defense-retained psychiatrist to testify regarding his findings on this issue. Any other result suppresses evidence that a court or jury needs to know to formulate a just determination concerning the mental illness defense.”). With respect to the potential harm to the defendant from the prosecution’s use of a defense expert, State v. Carter, 641 S.W.2d at 59, stated:
Defendant was not deprived of his constitutional right to effective assistance of counsel by the court’s ruling. The fact that counsel in preparing the defense for his client could possibly choose a psychiatrist who might make a report adverse to counsel’s theory of defense, or that in a psychiatric examination a defendant might speak guardedly or be less than candid with the doctor, knowing that the doctor might turn out to be a witness against him are not considerations of sufficient importance in this case to outweigh and override the stated requirements of fairness, justice and public policy in determining whether a request by the State for disclosure is reasonable....
In concluding that the sixth amendment does not bar the prosecution’s use of the opinion testimony of the defendant’s handwriting expert, the statements of Judge Weinstein are insightful:
In sum, it seems undesirable at this time to canonize the majority rule on the attorney-psychiatrist-client privilege and freeze it into a constitutional form not amenable to change by rule, statute, or further caselaw development. Were we to force the State into the rigid format suggested by the petitioner in this case by deciding that New York must, as a constitutional matter, extend privileged status to these communications, we would cut off further experimentation in this area — not only by this State, but by all state and federal courts and legislatures. We cannot say what the ultimate consensus, if any, will be on these policy issues. But it appears inappropriate and unwise at this stage to block potential branches of evolution.
Courts and legislatures must be given reasonable freedom to develop new approaches to questions of testimonial privilege. This subject is currently in a state of development, with increasing pressures for the creation of entirely new privileges, such as the social worker-client and reporter-source, and the expansion of older privileges predicated upon expanding concepts of privacy. At the same time there is continued coun-terpressures from the compelling interest in the ascertainment of truth in the pursuit of just determinations of legal contests. See, e.g., Federal Rules of Evidence, Rules 102, 401-403, 501, 803(24). For us to force one phase of the law of evidence into the procrustean bed urged by petitioner might be to disserve the *657arguably desirable development of more flexible rules of privilege.
United States v. Smith, 425 F.Supp. at 1054-55 (concluding that the sixth amendment does not bar the prosecution’s use of a defense-retained psychiatrist).
In my view, the attorney-client privilege also does not bar the prosecution’s use of the opinion testimony of a handwriting expert consulted by the defendant. So long as the expert does not disclose to the prosecution any confidential communications made by the defendant or defense counsel and testifies only to his opinion on whether the defendant signed the disputed documents, there is no violation of the attorney-client privilege. Hutchinson v. People, 742 P.2d 875 (Colo.1987) (Vollack, J., dissenting); United States v. Pipkins, 528 F.2d 559 (5th Cir.) (no violation of attorney-client privilege where prosecution called handwriting expert originally hired by defense counsel and expert gave opinion testimony that the defendant signed the disputed document), cert. denied, 426 U.S. 952, 96 S.Ct. 3177, 49 L.Ed.2d 1191 (1976); see also State v. Craney, 347 N.W.2d 668 (attorney-client privilege inapplicable to prosecution’s use of defense-retained psychiatrist); Saltzburg, Privileges and Professionals: Lawyers and Psychiatrists, 66 Va.L.Rev. 597, 635-42 (1980) (discussing why attorney-client privilege should not protect defense psychiatrist’s opinion testimony from use by prosecution). In the present case, Bradley, the defense-retained handwriting expert, gave opinion testimony for the prosecution that the defendant signed the forged checks. The expert did not testify to any confidential communications made to him by the defendant or defense counsel. In my view, the opinion testimony of Bradley was properly admitted by the trial court, and the court of appeals decision should be affirmed.
I authorized to say that Justice VOLLACK joins in this dissent.