dissenting:
I respectfully dissent because I disagree with the result reached by the majority, and with the majority’s sixth amendment/effective assistance of counsel analysis in arriving at that result. In my view, the case can be resolved by analysis under the Colorado Rules of Criminal Procedure and the attorney-client privilege. § 13-90-107, 6 C.R.S. (1986 Supp.). Relying on the well-settled principle that this court will not rule on a constitutional question which is not essential to resolution of the controversy before it, I believe the court should resolve the case without resort to the sixth amendment. Ricci v. Davis, 627 P.2d 1111, 1121 (Colo.1981). I agree with the language originally adopted in Edney v. Smith: “[I]t 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 *888to change by rule, statute, or further case-law development.” 425 F.Supp. 1038, 1054 (E.D.N.Y.1976), aff'd without opinion, 556 F.2d 556 (2d Cir.1977).
I.
This case involves the prosecution’s use of a report prepared by the defense-retained handwriting expert, as well as the prosecution’s use of this expert as a witness in its case-in-chief. I believe the report is discoverable under Crim.P. 16, and that the attorney-client privilege, rather than the sixth amendment, controls use of the expert’s testimony in the prosecution’s case-in-chief.
The defense-retained expert obtained the defendant’s handwriting exemplar and generated a report which set forth his conclusions, based on a comparison of the exemplar and the handwriting on the forged checks at issue in the case. Crim.P. 16 11(b) provides for discovery in criminal cases, and states in pertinent part:
Subject to constitutional limitations, the trial court may require that the prosecuting attorney be informed of and permitted to inspect and copy or photograph any reports or statements of experts, made in connection with the particular case, including results of ... scientific tests, experiments, or comparisons. Crim.P. 16 11(b), 7B C.R.S. (1986) (emphasis added). This discovery provision has been held constitutional on its face. People v. District Court, 187 Colo. 333, 531 P.2d 626 (1975) [hereinafter District Court].1 Crim.P. 16 11(a)(1) provides for prosecutorial discovery of “any nontestimonial identification as provided in [Crim.P.] 41.1(h)(2)”; Crim.P. 41.1 defines handwriting exemplars as nontestimonial identification.
Under these two provisions of Crim.P. 16, I believe that the report generated by the handwriting expert, which contained results of his “scientific tests, experiments, or comparisons,” is discoverable by the prosecution.2 This is especially true since the report analyzes nontestimonial identification, and handwriting exemplars do not trigger fifth amendment self-incrimination provisions.3 The unambiguous language of Crim.P. 16 calls for this result, and the defendant’s fifth amendment rights are not at issue under these facts.
II.
The second issue is whether the prosecution’s use of the defense-retained expert witness’ testimony in its case-in-chief violated the attorney-client privilege. The expert testified as to the procedure by which he obtained the handwriting exemplar, his observations as to the manner in which the defendant wrote the exemplar, his opinion that the defendant had not written the *889forged checks, and a review of the similarities and dissimilarities between the forged checks and the defendant’s exemplar. The trial court ruled that the expert could testify regarding his observations of the defendant’s manner and his analysis of the exemplar, but could not testify as to any communications he may have had with defense counsel or the defendant.
The attorney-client privilege prohibits disclosure of confidential communications between the client and his attorney or agents of his attorney, when the communications are made in the course of gaining legal counsel or advice. Miller v. District Court, 737 P.2d 834, 837 (Colo.1987). Colorado’s privilege statute is a codification of the common law attorney-client privilege, id. at 837 n. 2, and states in pertinent part:
An attorney shall not be examined without the consent of his client as to any communication made by the client to him or his advice given thereon in the course of professional employment; nor shall an attorney’s secretary, paralegal, legal assistant, stenographer, or clerk be examined without the consent of his employer concerning any fact, the knowledge of which he has acquired in such capacity.
§ 13-90-107(l)(b), 6 C.R.S. (1986 Supp.). The attorney-client privilege exists for the benefit of the client and can be expressly or implicitly waived by the client’s words or conduct. A v. District Court, 191 Colo. 10, 22, 550 P.2d 315, 323 (1976), cert. denied, 429 U.S. 1040, 97 S.Ct. 737, 50 L.Ed.2d 751 (1977). Section 13-90-107(l)(b) has been held to extend to communications between the client and agents of the attorney, based on the recognition that attorneys require the help of others to effectively handle clients’ affairs. Miller, 737 P.2d at 837-38. However, in general the attorney-client privilege is strictly construed “in the interest of bringing to light relevant facts.” People v. Donovan, 19 Cal.Rptr. 473, 478, 57 Cal.2d 346, 354, 369 P.2d 1, 5 (1972).4
A.
I believe that analysis of the expert’s testimony requires that we recognize distinctions between testimony as to confidential communications that occurred between the client and a defense-retained expert, and testimony regarding “things which [the expert] observed or discovered himself without resort to the client’s admissions.” Friedenthal, Discovery and Use of an Adverse Party’s Expert Information, 14 Stan.L.Rev. 455, 464 (1962) [hereinafter Discovery ]. Testimony about a client’s confidential communications to his attorney’s agent is qualifiedly protected under section 13-90-107; this prohibition serves the underlying purpose of encouraging open and candid discussion between client and attorney. A v. District Court, 191 Colo, at 22, 550 P.2d at 324. However, testimony about an expert’s “observations and conclusions, apart from the client’s communications to him, constitute[ ] knowledge on the part of the [expert] which would be highly material to the case.” Discovery at 463; cf. San Francisco v. Superior Court, 37 Cal.2d 227, 231 P.2d 26 (1951).
This court has recognized that the attorney-client privilege is not absolute, and underlying social policies “may sometimes conflict with other prevailing public policies and, in such circumstances, the attorney-client privilege ... must give way.” Law Offices of Bernard D. Morley v. MacFarlane, 647 P.2d 1215, 1220 (Colo.1982). An analogous example of conflicting social policies is the crime-fraud exception to attorney-client privilege, which provides that “communications between a client and his attorney are not privileged if they are made for the purpose of aiding the commission of a future crime or of a present continuing crime.” Id.
The trial court permitted the expert to testify as to his observation that the de*890fendant wrote the exemplar in a very slow, “very laborious,” forced manner. The expert testified that he “felt that the Defendant was not writing so much as he was drawing pictures_ It simply was drawing letters, very carefully, very slowly, in a very laborious manner.” This portion of the testimony involved an independent observation made by the expert, which was not related to the content or substance of any confidential communication.
“As a general rule, identifying physical characteristics such as one’s style of handwriting, readily observable by anyone, are not subject to the attorney-client privilege.” United States v. Pipkins, 528 F.2d 559, 563 n. 2 (5th Cir.), cert. denied, 426 U.S. 952, 96 S.Ct. 3177, 49 L.Ed.2d 1191 (1976). Nontestimonial evidence such as handwriting serves as an identifying physical characteristic in the same manner as blood and hair samples, scars, a limp, or a voice characteristic such as stuttering. Observations of physical characteristics constitute “an exhibition which converts the viewer into an eyewitness of material facts.” Discovery at 465. For example, while a client can refuse to divulge the substance of statements protected by attorney-client privilege, he “cannot refuse to testify and reveal [a] scar itself merely because he showed it to the attorney.” Id. See United States v. Weger, 709 F.2d 1151 (7th Cir.1983) (attorney-client privilege does not prevent disclosure of “characteristics of the type style” of a letter written by a client to her lawyer because, like a handwriting exemplar, they are “merely ‘identifying physical characteristics.’” Id. at 1156); Darrow v. Gunn, 594 F.2d 767 (9th Cir.), cert. denied, 444 U.S. 849, 100 S.Ct. 99, 62 L.Ed.2d 64 (1979) (applying California law, held that attorney-client privilege does not prevent attorney from testifying as to his observations of the client, including the client’s appearance and demeanor); State v. Regier, 228 Kan. 746, 621 P.2d 431 (1980) (the disclosure of physical characteristics is not a confidential communication under the attorney-client privilege); De-Fusco v. Giorgio, 440 A.2d 727 (R.I.1982) (attorney-client privilege not violated where attorney testified as to his former client’s demeanor, and to his assessment of client’s knowledge and state of mind). See also 8 Wigmore, Evidence § 2306, at 558-591 (McMaughton Rev. 1961 & 1987 Supp.).
This specific exception to the attorney-client privilege is not without limits, and where testimony regarding identifying physical characteristics in a particular case would result in unfairness,5 or would cause a violation of the defendant’s constitutional rights, a trial court could exercise its discretion in deciding to limit the disputed testimony.
B.
There is a distinction between “objectively observable particularizations” of the client’s demeanor, which are not privileged, and confidential communications between the attorney’s agent and the client, which are privileged. United States v. Kendrick, 331 F.2d 110, 114 (4th Cir.1964). In some cases, the observations may even be “inextricably intertwined with communications.” Id. at 115 (Sobeloff and Bell, JJ., specially concurring). The attorney-client privilege does not extend to knowledge obtained by independent observation, but the privilege does protect the substance of confidential communications from use by the prosecution in its case-in-chief. “ ‘[I]t is fundamentally unfair to use defendant’s incriminating admissions to a psychiatrist during a psychiatric examination as part of the prosecution’s case to establish his guilt.’” State v. Craney, 347 N.W.2d 668, 672 (Iowa), cert. denied, 469 U.S. 884, 105 S.Ct. 255, 83 L.Ed.2d 192 (1984) (quoting Collins v. Auger, 428 F.Supp. 1079, 1082-83 (S.D. Iowa 1977)). On the other hand, “ ‘[nothing in the policy of the [attorney-client] privilege suggests that attorneys, simply by placing accountants, scientists or investigators on their payrolls and maintaining *891them in their offices, should be able to invest all communications by clients to such persons with a privilege the law has not seen fit to extend when the latter are operating under their own steam.’ ” Pipkins, 528 F.2d at 563, (quoting United States v. Kovel, 296 F.2d 918, 921 (2d Cir.1961)).
Applying these principles, I believe the attorney-client privilege extends to the expert’s testimony as to confidential communications between the expert and the client or the client’s attorney, related to the rendering of expert services. Pipkins, 528 F.2d at 564. However, the remainder of the expert’s testimony in this case involved his comparisons of similarities and dissimilarities between the forged documents and the exemplars. The expert’s opinion on direct examination was that the forged handwriting had not been written by the defendant.6 He testified that there were “many” areas of dissimilarity between the exemplar and the forged documents, concluding that “[i]n point of fact, most of them are dissimilar.”
On this basis, I believe that the trial court appropriately limited the expert’s testimony; the record reveals no testimony by the expert regarding any confidential communications. Under these limited circumstances, admission of the handwriting expert’s testimony as to his observations and handwriting analysis did not violate the attorney-client privilege. Because the expert’s testimony was limited in this manner, I would affirm the conviction. I respectfully dissent.
I am authorized to state that Justice ERICKSON joins in this dissent.
. We also held in District Court that "when the defendant is compelled to provide a handwriting exemplar, his Fifth Amendment right against self-incrimination is not contravened, because the exemplar is an identifying physical characteristic, rather than a communication within the privilege.” 187 Colo, at 340, 531 P.2d at 630. Under Crim.P. 41.1, the handwriting exemplar is nontestimonial evidence, hence not governed by the self-incrimination limits of the fifth amendment.
. I believe that the majority incorrectly interprets People v. District Court, 187 Colo. 333, 531 P.2d 626 (1975). The majority cites District Court for the proposition that Crim.P. 16 11(b) does not authorize the prosecution’s discovery of expert reports if the reports will not be used at trial. Maj. op. at 881-882. My interpretation of District Court is that Crim.P. 16 11(b) does not permit discovery where such discovery would result in a violation of the fifth amendment protection against self-incrimination. Although District Court included the phrase "or to disclose information which will not be used at trial,” id. at 341, 531 P.2d at 630, the court also found it significant that language in an earlier draft of the rule, which "confined discovery to those reports and examinations which the defendant intended to introduce at the time of trial” was removed and replaced with the phrase "[s]ubject to constitutional limitations." Id. Finally, in its instructions on remand, the court directed the trial court to conduct "a hearing to gauge the impact on the defendant’s Fifth Amendment right of the discovery which was requested." Id. at 343, 531 P.2d at 632.
Viewing District Court in this context, I believe the dictum addressing discovery of reports which will not be used at trial applies in the context of possible fifth amendment violations. The physical characteristic evidence at issue here is nontestimonial in nature and does not fall under the fifth amendment provisions.
.See supra note 1.
. In Donovan, the California Supreme Court held that an appraiser’s opinion as to the value of the property in dispute did not fall within the attorney-client privilege because the testimony sought "goes only to matter of the appraiser's subjective knowledge, as distinguished from his disclosures to plaintiffs counsel. This knowledge, in and of itself, is not privileged...." 19 Cal.Rptr. at 478, 57 Cal.2d at 355, 369 P.2d at 5.
. A number of jurisdictions have adopted this "unfairness rule." For a list of the jurisdictions, see Discovery at 482 n. 14. But see Sneddon v. Edwards, 53 Wash.2d 820, 335 P.2d 587 (1959) (trial court erred in prohibiting defense-retained engineer from testifying for the plaintiffs, even though defense did not intend to call him as a witness).
. The expert testified before the jury: "From my comparison of his known writing with the writing on the checks, on the deposit slips, it was my opinion then and it is now that if that is a true representation of the level of writing skill of the Defendant, then, he could not have written the face side or the backside of the checks or the deposit slips.”