dissenting. As the majority stipoints ce, case involves a criminal investigation into the deaths of five people in a vehicular accident. The prosecutor, in the course of investigating these deaths, issued a subpoena for the accident reconstruction report prepared by Jackson Reconstruction, Inc. She clearly had the authority to issue a subpoena to investigate a criminal matter under state law. See Ark. Code Ann. § 16-43-212 (Repl. 1999). Holt, on the other hand, argues that the entire report is privileged under the attorney-client privilege and is therefore protected. The majority, without ordering a judicial determination of whether all of the report is indeed privileged, reverses the circuit court and bans the report from the prosecutor’s investigation. I would not go that far but would remand the case for an in camera review of the report by the circuit court to decide whether, in fact, all of the report is privileged. The prosecutor asked for this relief in her response to motion to quash and brief in support of motion to dismiss before the circuit court. If part of the report is privileged or the result of privileged communication, it should be struck. If not, it should in my judgment be subject to the subpoena.
My dissent in favor of an in camera review is based on two reasons. First, our criminal rules specifically contemplate in camera proceedings as does our case law. See Ark. R. Crim. P. 19.6; Orsini v. State, 340 Ark. 665, 13 S.W.3d 167 (2000) (this court held that an in camera review of a prison report by the circuit court was appropriate to determine if the report contained sensitive or confidential information under Department of Corrections regulations). But, secondly, an in camera decision by the circuit court is entirely reasonable when you have two conflicting public policies ( the prosecutor’s right to investigate criminal activity versus the citizen’s right to a privilege.
The majority cites no authority that militates against in camera review. In fact, the case authority goes the other way. In State v. Riddle, 330 Or. 471, 8 P.3d 980 (2000), the Oregon Supreme Court affirmed the trial court, which had determined in camera that an accident reconstructionist could testify, with limits on his testimony to protect the attorney-client privileges. That is precisely the situation we have before us.
The majority relies heavily on Commonwealth v. Noll, 443 Pa. Super. 602, 662 A.2d 1123 (1995), where the Pennsylvania Superior Court held that information gathered by an accident reconstructionist was subject to the privilege. But in that case the trial court, before trial, considered a motion in limine on the issue filed by the defendant that entailed weighing the potentially prejudicial and harmful evidence to determine whether curative instructions could not alleviate the adverse impact of the evidence on the jury. The trial court’s evaluation in Noll is exactly what I champion in this case. Contrary to the majority’s footnote, the Pennsylvania Superior Court expressly stated that the purpose behind the motion in limine was to weigh the evidence at issue and determine prejudice. That type of scrutiny by the trial court is what should be done in the instant case.
The majority also relies on the Unites States Supreme Court case of Swidler & Berlin v. United States, 524 U.S. 399 (1998), to say that Holt would not have communicated with his attorney and Jackson Reconstruction would not have been hired to generate an accident reconstruction report had Holt not been assured that his communication and the report were privileged. Swidler & Berlin, •however, is distinguishable from the situation at hand, because it concerned whether the attorney-client privilege survived the death of the client, rather than whether an accident reconstruction report can be subpoenaed by a prosecutor to further an investigation. Also, the Government in Swidler & Berlin sought the use of the attorney’s notes that were taken during an initial interview with the deceased client to further a criminal investigation. Here, the prosecutor is not seeking Holt’s attorney’s notes, which would be protected under Ark. R. Evid. 502, but rather she is seeking an accident report created by Jackson Reconstruction. Again, the circuit court should have an opportunity to examine the report to determine whether any of it can be used by the prosecutor. The majority erroneously argues that my position is to balance competing policies. Rather, my position is that an in camera review would determine to what extent the privilege does apply.
This court goes too far when it hamstrings a prosecutor and fails to order an in camera review. It may be that the report is so bound up with the privileged communications that none of it can be made available to the prosecutor. The majority certainly makes this assumption when it bypasses an in camera review. On the other hand, certain non-privileged information and opinions relating to matters such as skid and gauge marks might be separate and apart from the asserted privilege.
This case is simply too important to shut the door on investigative material without a full in camera review. For all of these reasons, I respectfully dissent.