dissenting:
I respectfully dissent. I believe that the defendant waived the confidentiality of Bradley’s opinion by calling Bradley to testify at the Crim.P. 32(d) hearing. Accordingly, I would affirm.
I.
In two recent cases, this court has held that, absent waiver or a compelling justification, the attorney-client privilege and the sixth amendment right to effective assistance of counsel prevent the prosecution from calling defense-retained experts as witnesses in the prosecution’s case-in-chief. Hutchinson v. People, 742 P.2d 875 (Colo.1987) (right to effective assistance of counsel); Miller v. District Court, 737 P.2d 834 (Colo.1987) (attorney-client privilege). In both cases, we made it clear that a waiver could be implied from the defendant’s words or conduct. In Miller, we rejected the People’s argument that the defendant had waived the attorney-client privilege simply by placing his mental condition in issue. 737 P.2d at 838-39. We also rejected the People’s arguments that waiver had occurred in Hutchinson. First, we concluded that the defendant’s plea of not guilty did not waive the confidentiality of the expert’s opinion. 742 P.2d 875, at 886. Second, we concluded that since the testimony of the defendant’s wife, which tended to suggest that someone else had forged the checks, was not offered until after the prosecution’s case-in-chief, it could not be construed as an implied waiver. 742 P.2d 875, at 886. Under this reasoning, a waiver of the constitutionally-mandated confidentiality may be inferred from the defendant’s decision to call a particular witness (not necessarily the expert in question) before the prosecution calls the defense-retained expert. While I agree that no waiver occurred in Miller or Hutchinson, I believe that if we are to give any content to the concept of an implied waiver of the confidentiality of a defense-retained expert’s opinion, we must find a waiver in this case.
Here, the defense counsel knew that the expert’s opinion was tentative at the time he called the expert to testify at the Crim.P. 32(d) hearing. Indeed, the expert was called at that hearing in order to show that the defendant’s first trial counsel had *658been ineffective because he had failed to follow up on the expert’s request to review the original forged checks. The expert’s tentative opinion, based on his review of photocopies of the forged checks, was that the defendant had not written them. However, he also testified that it would be necessary for him to see the originals in order to formulate a final opinion, and that the defendant’s first attorney had never provided him with the originals.
After the Rule 32(d) hearing, the district attorney submitted the original checks to the defense-retained expert and the expert obtained other checks written by the defendant. After reviewing these documents, his opinion changed and he formed the opinion that the defendant had written the forged checks. This change in the expert’s opinion should have come as no surprise to the defense counsel because he knew the expert’s opinion was tentative at the time he called him to testify at the 32(d) hearing. The change in the expert’s opinion does not change the legal effect of the defendant's voluntary decision to call Bradley as an expert at' the Crim.P. 32(d) hearing — by introducing Bradley’s testimony at that hearing, the defendant waived the confidentiality of Bradley’s opinion.
The majority concludes that there was no waiver because defense counsel could not have foreseen that the prosecution would call Bradley during its case-in-chief. The majority opinion also expresses concern that finding a waiver would force the defendant to choose between constitutional rights.and encourage gamesmanship. As explained in part III, I believe that since no improper coercion occurred here, the defendant did waive the confidentiality of Bradley’s opinion and was not forced to choose between rights. Further, I think a finding of waiver in this case would discourage, rather than encourage, gamesmanship.
II.
If this case involved only the attorney-client privilege, it would be clear that, by calling the defense-retained handwriting expert at the Crim.P. 32(d) hearing, the defendant waived the confidentiality of that expert’s testimony. See, e.g., United States v. Alvarez, 519 F.2d 1036, 1046 (3d Cir.1975) (“[i]f the expert is ... used as a witness on behalf of the defendant, obviously the cloak of privilege ends”); Tucker v. State, 484 So.2d 1299, 1301 (Fla.Dist.Ct.App.) (allowing expert to be deposed waived the privilege because “once communications protected by the attorney-client privilege are voluntarily disclosed, the privilege is waived and cannot be reclaimed”), review denied, 494 So.2d 1153 (Fla.1986); see generally McCormick on Evidence § 93 (E. Cleary 2d ed. 1972); 8 Wigmore on Evidence § 2328 (J. McNaughton rev. ed. 1961).
In a case very similar to the one now before us, the Eleventh Circuit held that since the defendant had waived the attorney-client privilege at a Fed.R.Crim.P. 32(d) hearing, he could not reclaim the privilege at trial. United States v. Suarez, 820 F.2d 1158, 1160 (11th Cir.1987). In Suarez, as here, the defendant sought to withdraw his guilty plea because his first attorney had not represented him effectively. In Suarez, the defendant expressly waived the attorney-client privilege so that his first attorney could testify at the Rule 32(d) hearing, but, after he had been allowed to withdraw the plea, he objected to the prosecution calling his first attorney to testify during its case-in-chief. The Eleventh Circuit rejected the defendant’s claim of privilege, stating that:
The purpose of the attorney-client privilege is to promote freedom of consultation between client and lawyer by eliminating the fear of subsequent compelled legal disclosure of confidential communications .... [A]t the point where attorney-client communications are no longer confidential, i.e., where there has been a disclosure of a privileged communication, there is no justification for retaining the privilege. For that reason, it has long been held that once waived, the attorney-client privilege cannot be reasserted. Once [the defendant’s first attorney] testified at the hearing to withdraw the guilty plea, the attorney-client privilege *659could not bar his testimony on the same subject at trial.
Suarez, 820 F.2d at 1160 (footnotes and citations omitted).
In another similar case, Brown v. State, 448 N.E.2d 10, 14-15 (Ind.1983), the defendant introduced testimony by a defense-retained polygraph examiner at a hearing held to determine whether she should be tried in the juvenile court or the circuit court. When the prosecution later called the same polygraph examiner as a witness in its case-in-chief, the defendant claimed that his testimony violated her attorney-client privilege. The Indiana Supreme Court agreed that the attorney-client privilege applied to her communications with the polygraph examiner, but held that it had been waived when the defendant called him as a witness at the juvenile court hearing. Brown, 448 N.E.2d at 14-15. The court explained that a client “cannot seek admission of privileged communications about a subject at one time and then later resist disclosure of the same communications.” Id. at 15.
I agree with the reasoning in Suarez and Brown, and would, therefore, require the defense counsel to make a decision before he puts the expert on the stand. Once the expert is called and has testified, then the prosecution should be able to use the expert in its case-in-chief.
III.
Thus far, I have considered only the question of whether the defendant waived the attorney-client privilege. In order to affirm the trial court, we would also have to conclude that the defendant had waived the constitutional right to confidentiality described in Hutchinson v. People, 742 P.2d 875 (Colo.1987). The majority correctly states that “[wjaivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.” At 652 (quoting Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1468-69, 25 L.Ed.2d 747 (1970) (footnote omitted)).
The majority opinion then concludes that the waiver was not knowing because defense counsel could not have foreseen that the prosecution would call Bradley. At 653. I disagree for two reasons. First, I believe defense counsel could foresee the prosecutor calling Bradley once Bradley’s identity was disclosed at the 32(d) hearing. The defendant and his attorney were aware that once Bradley testified, the prosecuting attorneys would know that Bradley had been retained by the defendant, that his tentative opinion was that the defendant had not forged the checks, and that he was unable to form a final opinion until he studied the original forged checks. With a full awareness that none of these facts would remain confidential if Bradley were called, the defendant still chose to call him. He apparently also gave the prosecution a report prepared by Bradley pursuant to Crim.P. 16. Especially in light of the fact that these events occurred prior to our decisions in Miller and Hutchinson, I see no reason why defense counsel would not have expected the prosecution to call Bradley as a witness.
Second, the critical question is not whether the attorney could have foreseen the prosecution calling Bradley. The requirement that a waiver of a constitutional right be knowing, voluntary, and intelligent does not mean that defense counsel must accurately predict exactly what will happen if the defendant relinquishes his right. See, e.g., McMann v. Richardson, 397 U.S. 759, 770, 90 S.Ct. 1441, 1448, 25 L.Ed.2d 763 (1970) (requirement that guilty plea be made intelligently does not mean “that all advice offered by the defendant’s lawyer withstand retrospective examination”); Brady, 397 U.S. at 757, 90 S.Ct. at 1473 (valid guilty plea does not require that the defendant “correctly assess every relevant factor entering into his decision”); People v. Velasquez, 641 P.2d 943, 951 (Colo.) (“A defendant is not constitutionally entitled to errorless counsel”), cert. denied, 459 U.S. 805, 103 S.Ct. 28, 74 L.Ed.2d 43 (1982). Instead, the analysis should be focused on whether the waiver was coerced. See, e.g., Brady, 397 U.S. at 750-55, 90 S.Ct. at 1470-72.
*660The concern with preventing coerced waivers is illustrated by Simmons v. United States, 390 U.S. 877, 389-94, 88 S.Ct. 967, 973-76, 19 L.Ed.2d 1247 (1968). As the majority states, in Simmons, the Court made clear that a defendant could not be coerced into giving up one constitutional right in order to protect another. 390 U.S. at 394, 88 S.Ct. at 976. In Simmons, the defendant testified at a suppression hearing, but his suppression motion was overruled. The United States Supreme Court’s decision that the defendant’s testimony was inadmissible at trial was based on the fact that since the only way for the defendant to have established standing was to testify, the “testimony is to be regarded as an integral part of his Fourth Amendment exclusion claim.” 390 U.S. at 391, 88 S.Ct. at 975. The Court reasoned that allowing such testimony to be admitted would require the defendant to surrender one constitutional right in order to assert another. 390 U.S. at 394, 88 S.Ct. at 976. However, subsequent federal decisions have held that the Simmons reasoning is inapplicable when the defendant did not have to make a “Hobson’s choice,” but instead freely waived one constitutional right in the process of trying to protect another. See Jeffers v. United States, 432 U.S. 137, 153 & n. 21, 97 S.Ct. 2207, 2217-18 & n. 21, 53 L.Ed.2d 168 (1977) (“alleged Hobson’s choice between asserting the Sixth Amendment fair trial right and asserting the Fifth Amendment double jeopardy claim is illusory” since problem could have been avoided if petitioner had made different pretrial motions); United States v. Melanson, 691 F.2d 579, 584 (1st Cir.) (since it is not necessary that the defendant “refer to the facts of the case” in order to protect Eighth Amendment bail rights, Simmons does not require exclusion of uncoerced, incriminatory statements defendant made at bail hearing), cert. denied, 454 U.S. 856, 102 S.Ct. 305, 70 L.Ed.2d 151 (1981); United States v. Dohm, 618 F.2d 1169, 1173-74 (5th Cir.1980) (same).
I believe that in this case the apparent “Hobson’s choice” was created by the un-coerced decisions of the defendant and his attorney. Bradley was not the defendant’s only witness or even a crucial witness. Defense counsel chose to call Bradley as one of many witnesses1 at the 32(d) hearing, without showing him the original checks he needed in order to render a definite opinion; he chose to ask Bradley for his preliminary opinion at that hearing, in spite of the prosecutor’s objection; and he chose to show Bradley the defendant’s course of business writings after the 32(d) hearing. It was this set of circumstances, rather than the nature of a 32(d) hearing, that created the defendant’s dilemma. Just as in Jeffers, where the defendant could have avoided having to choose between constitutional rights by requesting that his trial be severed from that of his co-defendants, here the defendant could have avoided the problem that occurred by showing Bradley the original checks and course of business writings before calling him at the 32(d) hearing or never showing him those documents. Therefore, there is no Simmons dilemma of a defendant being forced to choose between constitutional rights.
The majority also expresses concern that a finding of waiver would encourage “gamesmanship.” At 653. I disagree. I would require defense counsel to make the decision about whether to keep the defense-*661retained expert’s opinion confidential prior to calling that expert at any stage of the proceeding. Under such a rule, once the expert is questioned, his identity and opinion are no longer confidential, and no amount of “gamesmanship” can restore their confidentiality. Further, such a rule would discourage gamesmanship by preventing defendants from “trying out” different witnesses at pretrial proceedings and then excluding them if their testimony proved to be unsatisfactory for any reason.
IV.
In conclusion, since the defendant knowingly, intelligently, and voluntarily chose to call Bradley as a witness at the 32(d) hearing and to ask him for his opinion, I would conclude that he impliedly waived the confidentiality that would otherwise have protected Bradley’s opinion. Since he was not forced to make Bradley’s opinion public in order to vindicate his right not to be convicted based on an involuntary guilty plea, Simmons is inapplicable.
. The defendant called eight witnesses at the Crim.P. 32(d) hearing. The testimony suggested a complete lack of trial preparation by the defendant’s first attorney. For example, it appeared that the defendant’s first attorney had not investigated the case, had not interviewed potential witnesses, had not informed the defendant of his right to a jury trial, had told the defendant a plea of nolo contendere meant he was not guilty, had told the defendant he had to either go to trial without a lawyer or plead nolo contendere, had requested continuances over the defendant's objections due to his lack of preparation, had lied to or misled the defendant as to the scope and results of his investigations, and had not told him the plea agreement meant he would have to repay $ 12,000. The hearing appears to have focused on the attorney’s failure to investigate leads suggesting that another man had committed the forgery and his general failure to communicate with the defendant. The fact that the first attorney failed to follow upon on Bradley’s phone call was just one of many pieces of evidence showing the attorney’s incompetence.