Gray v. District Court of the Eleventh Judicial District

Justice LOHR

concurring in part and dissenting in part:

The majority upholds an order of the trial court denying the defendant’s motion to suppress records pertaining to his psychiatric evaluation and treatment prior to the occurrence of his alleged criminal acts. In addition, the majority interprets section 16-8-103.6, 8A C.R.S. (1994 Supp.), to effect a waiver of any attorney-client or physician/psyehologist-patient privilege by any defendant who pleads not guilty by reason of insanity or who asserts the affirmative defense of impaired mental condition (in this dissent such a plea and affirmative defense are referred to jointly as the “mental status defense”). Thus, the majority holds that the prosecution may compel discovery of the names of all defense-retained psychiatrists and of all defense-commissioned psychiatric reports regardless of defense counsel’s intention to call the examining psychiatrist to testify at trial. Also, the prosecution may use the testimony of these defense experts in its ease in chief. Maj. op. at 292-293. I concur with the majority as to the denial of suppression of pre-offense psychiatric records. However, I believe that the majority’s interpretation of section 16-8-103.6 violates an accused’s constitutional right to effective assistance of counsel. Therefore, I dissent regarding the disclosure of defense instituted psychiatric examinations.

I.

Facts and Procedural History

Christopher Shane Gray (“Gray”) is charged with attempt to commit first degree murder, and with the additional crimes of first-degree burglary, theft, second degree kidnapping, aggravated intimidation of a witness or victim, first-degree assault, second degree burglary, first-degree trespass, and five counts of violent crime. See Maj. op. at 288.

On November 17,1993, Gray entered pleas of not guilty by reason of insanity and asserted the affirmative defense of impaired mental condition. On that same day, Gray filed a motion to suppress medical records from a 1990 psychiatric hospitalization. Tfiese records were generated from examinations and treatments that occurred prior to Gray’s alleged commission of the offenses at issue. On December 31, 1993, Gray filed a motion for a “constitutional interpretation” of section 16-8-103.6, 8A C.R.S. (1994 Supp.), contending that a construction of this statute that would require him to disclose information concerning examination or treatment by any physician or psychologist whom he does not intend to call at trial would violate certain of his constitutional rights.

The trial court denied Gray’s motion to suppress the 1990 pre-offense psychiatric récords. The trial court ruled that generally a defendant’s pre-offense psychiatric records would be privileged under subsections 13-90-107(l)(d) and (g), 6A C.R.S. (1987 & 1994 Supp.) (physician/psychologist-patient privileges). The trial court held, however, that when a defendant pleads a mental status defense, the defendant implicitly waives any privilege pertaining to pre-offense psychiatric records. In ruling on the motion for a “constitutional interpretation” of section 16-8-103.6, the trial court concluded that a defendant who enters a mental status defense waives any claim of confidentiality or privilege as to communications by the defendant to any physician or psychologist who has *298examined or treated the defendant post-offense for the mental condition at issue. The waiver, according to the trial court, extends not only to the physician/psychologist-patient privileges but to the attorney-client privilege as well. The trial court further held that its interpretation of section 16-8-103.6 did not contravene an accused’s constitutional right to effective assistance of counsel.

Gray filed a petition for relief in the nature of a writ of prohibition pursuant to C.A.R. 21. We ordered the trial court to show cause why the relief requested in the defendant’s petition should not be granted.1 The majority now discharges the rule.

II.

Suppression of Pre-offense Psychiatric Reports

Suppression of pre-offense psychiatric reports is governed by the applicability of the physician-patient privilege as delineated in subsection 13-90-107(l)(d), 6A C.R.S. (1987).2 Pre-offense psychiatric reports are not affected by the attorney-client privilege, which protects confidential communications between an attorney and a client. See § 13-90-107(l)(b), 6A C.R.S. (1987). We have held that the attorney-client privilege also applies to certain communications between clients and experts engaged by their attorneys. Hutchinson v. People, 742 P.2d 875 (Colo.1987) (handwriting expert hired by defense covered by attorney-client privilege); Miller v. District, 737 P.2d 834 (Colo.1987) (psychiatrist hired by defense counsel is an agent of defense counsel and covered by the attorney-client privilege); Bellmann v. District Court, 187 Colo. 350, 531 P.2d 632 (1975) (insurance investigator hired by insurance company defending client is covered by the attorney-client privilege). The individuals who examined Gray in 1990 were not agents of Gray’s attorney. They could not be agents because the offenses with which Gray is charged did not occur until later. Thus, the attorney-client privilege is inapplicable to the issue of whether the psychiatric reports compiled in 1990 should be suppressed.

Subsection 13-90-107(l)(d), which codifies the physician-patient privilege, states, in pertinent part:

A physician, surgeon, or registered professional nurse duly authorized to practice his profession pursuant to the laws of this state or any other state shall not be examined without the consent of his patient as to any information acquired in attending the patient which was necessary to enable him to prescribe or act for the patient, ...

The purpose of this privilege is to facilitate diagnosis and treatment by protecting the patient from the embarrassment and humiliation that might be caused by disclosure of confidential information. Clark v. District Court, 668 P.2d 3, 8 (Colo.1983); see, e.g., People v. Taylor, 618 P.2d 1127, 1140 (Colo.1980); Community Hospital Association v. District Court, 194 Colo. 98, 100, 570 P.2d 243, 244 (1977). This privilege prohibits both testimonial disclosures in court and pretrial discovery of information within the scope of the privilege. Clark, 668 P.2d at 8.

The legislature limited the scope of the physician-patient privilege by enacting section 13-90-107(3), 6A C.R.S. (1987):

The provisions of paragraphs (d) [physician privilege] and (g) [psychologist privilege] of subsection (1) of this section shall not apply to physicians or psychologists eligible to testify concerning a criminal defendant’s mental condition pursuant to section 16-8-103.6, C.R.S. Physicians and psychologists testifying concerning a criminal defendant’s mental condition pursuant to section 16-8-103.6, C.R.S. do not fall under the attorney-client privilege in paragraph (b) of subsection (1) of this section.

*299This statute limits the physician-patient privilege for any testimony covered under section 16-8-103.6, 8A C.R.S. (1994 Supp.). Section 16-8-103.6 effects a waiver of the physician-patient privilege when a defendant pleads a mental status defense. The statute states:

A defendant who places his mental condition at issue by pleading not guilty by reason of insanity pursuant to section 16-8-103, asserting the affirmative defense of impaired mental condition pursuant to section 16-8-103.5, or raising the question of incompeteney to proceed pursuant to section 16-8-110 waives any claim of confidentiality or privilege as to communications made by him to a physician or psychologist in the course of an examination or treatment for such mental condition for the purpose of any trial or hearing on the issue of such mental condition. The court shall order both the prosecutor and the defendant to exchange the names, addresses, reports, and statements of any physician or psychologist who has examined or treated the defendant for such mental condition.

The majority holds that once the defendant pleads a mental status defense, this statute requires disclosure of all medical records whether created before or after .commission of the criminal offense at issue. The majority states:

Based on a plain reading of the statute, section 16-8-103.6 indicates that the legislature has created a statutory waiver to any claim of confidentiality or privilege, which includes the attorney-client and physician/psychologist-patient privileges. The defendant waives the protection to communications, including medical records, that pre-date and post-date the criminal offense, ...

Maj. op. at 293 (emphasis in original). I have become convinced that this is the meaning of the statute notwithstanding a possible alternative reading of section 16-8-103.6 that the legislature meant to effect a statutory waiver of the privileges only for statutorily required court ordered examinations. See § 16-8-103.5(4), 8A C.R.S. (1994 Supp.); § 16-8-105(1), 8A C.R.S. (1986); People v. Fuller, 791 P.2d 702, 711 (Colo.1990) (Lohr, J., dissenting on issue not addressed by majority).

In People v. Fuller, addressing in dissent the construction of section 16-8-103.6, an issue that the majority did not reach, I first noted that in interpreting statutes we should seek an interpretation that avoids constitutional defects. Although acknowledging that the statutory language seems to suggest the construction here adopted by the majority, I expressed the opinion that “[a]n interpretation of section 16-8-103.6 that would require the defendant to waive his right to confidentiality regarding conversations with a defense expert would violate the sixth amendment.” Id.; see infra, part III. Nevertheless, I concede the force of the majority’s argument; the construction it adopts reflects the true intent of the legislature.

The majority’s construction is reinforced by section 16-8-108(2), 8A C.R.S. (1994 Supp.). This section requires that “[a] copy of any report of examination of the defendant made at the instance of the defense shall be furnished to the prosecution a reasonable time in advance of trial.” The previous version of this statute only required the defense to provide the prosecution with copies of any reports or examinations containing information that the defense intended to introduce as evidence or testimony. § 16-8-108(2), 8A C.R.S. (1987) (amended by Ch. 119, sec. 4, § 16-8-108(2), 1987 Colo.Sess.Laws 622, 623). By amending section 16-8-108(2) and enacting section 16-8-103.6, the legislature intended to establish a statutory scheme that would provide the prosecution in cases where the defendant pleads a mental status defense with as full an array of psychiatric information about the defendant as possible.

Although the constitutionality of sections 16-8-103.6 and 16-8-108(2), 8A C.R.S. (1994 Supp.), as they pertain to post-offense examinations of the defendant is in question, see infra, part III, there is no constitutional issue regarding pre-offense examinations. A defendant’s right to effective assistance of counsel is not implicated by requiring the defense to provide the prosecution with the defendant’s pre-offense psychiatric reports. Therefore, I concur with the majority that a defendant is not entitled to suppression of *300pre-offense psychiatric reports where the defendant waives the physician-patient privilege by pleading not guilty by reason of insanity pursuant to section 16-8-103, 8A C.R.S. (1986), or asserting the affirmative defense of impaired mental condition pursuant to section 16-8-103.5, 8A C.R.S. (1986 & 1994 Supp.).

III.

Effective Assistance of Counsel and Confidentiality Protections Afforded to Defense Experts

The Sixth Amendment to the United States Constitution and article II, section 16, of the Colorado Constitution guarantee a criminal defendant the right to counsel. Because the right to counsel is essential to ensuring that the accused receives a fair trial, it is well established that the right to counsel includes the right to effective assistance of counsel. E.g., McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 1449 n. 14, 25 L.Ed.2d 763 (1970); Hutchinson, 742 P.2d at 880; People v. Norman, 703 P.2d 1261, 1272 (Colo.1985); People v. White, 182 Colo. 417, 422, 514 P.2d 69, 71-72 (1973). As part of counsel’s duty to provide effective assistance to the accused, counsel is required to make reasonable investigations in connection with the case. Strickland v. Washington, 466 U.S. 668, 691, 104 S.Ct. 2052, 2066-67, 80 L.Ed.2d 674 (1984); White, 182 Colo. at 421-422, 514 P.2d at 71. In fact, the American Bar Association Standards for Criminal Justice Prosecution Function and Defense Function, which provides a guide to professional practice, requires defense counsel to conduct a prompt and thorough investigation. ABA standards for Criminal Justice Prosecution Function and Defense Function, standard 4^-4.1 (3rd ed. 1993). The Commentary to standard 4-4.1 makes clear the importance of thorough investigation in order for a lawyer to provide effective assistance to a client. The Commentary states, “Effective investigation by the lawyer has an important bearing on competent representation at trial, for without adequate investigation the lawyer is not in a position to make the best use of such mechanisms as cross examination or impeachment of adverse witnesses at trial or to conduct plea discussions effectively.” Id. at 183.

Expert psychiatric testimony as to a chent’s state of mind is a crucial avenue of investigation for a criminal defense attorney. The Fourth Circuit Court of Appeals in United States v. Taylor recognized the importance of expert psychiatric assistance to a criminal defense attorney:

The assistance of a psychiatrist is crucial in a number of respects to an effective insanity defense. In the first place, the presence or absence of psychiatric testimony is critical to presentation of the defense at trial....
Moreover the use of an expert for other, non-testimonial, functions can be equally important. Consultation with counsel attunes the lay attorney to unfamiliar but central medical concepts and enables him, as an initial matter, to assess the soundness and advisability of offering the defense. The aid of a psychiatrist informs and guides the presentation of the defense, and perhaps most importantly, it permits a lawyer inexpert in the science of psychiatry to probe intelligently the foundations of adverse testimony.

United States v. Taylor, 437 F.2d 371, 377 n. 9 (4th Cir.1971); see also Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) (state must provide funds for a psychiatric exam of indigent defendant to aid defense in establishing insanity defense).

Because of the importance of expert psychiatric assistance to attorneys when counseling their clients, many courts have held that the results of defense ordered psychiatric exams, where the defense has not elected to introduce these findings at trial, are privileged under the attorney-client privilege. These courts have held this information privileged in cases where the defendant has pled not guilty by reason of insanity. See United States v. Alvarez, 519 F.2d 1036 (3rd Cir.1975) (admission of testimony of psychiatrist who conducted examination of accused at behest of defense attorney in trial where defendant pled insanity was error); People v. Lines, 13 Cal.3d 500, 119 Cal.Rptr. 225, 531 P.2d 793 (1975) (results of defense-requested *301psychiatric examination in trial where defendant pled insanity not discoverable); State v. Toste, 178 Conn. 626, 424 A.2d 293 (1979) (psychiatrist’s testimony in trial where defendant pled insanity covered by defendant’s attorney-client privilege even though psychiatric exam ordered by court on defense attorney’s motion); State v. Kociolek, 28 N.J. 400, 129 A.2d 417 (1957) (where psychiatrist was engaged by defendant’s attorneys, mental diagnosis and opinion were privileged under the attorney-client privilege and privilege was not waived by defendant testifying at trial); see also Houston v. State, 602 P.2d 784 (Alaska 1979); Pouncy v. State, 353 So.2d 640 (Fla.Dist.Ct.App.1977); People v. Knuckles, No. 73616, 1994 WL 46880 (Ill. Feb. 17, 1994); State v. Pratt, 284 Md. 516, 398 A.2d 421 (1979); People v. Hilliker, 29 Mich.App. 543, 185 N.W.2d 831 (1971). We have also held prior to the enactment of section 16-8-103.6, 8A C.R.S. (1994 Supp.) that a defendant’s disclosures to a defense-retained psychiatrist are privileged under the attorney-client privilege even in cases where the defendant pleads a mental status defense. Miller, 737 P.2d at 838.

The attorney-client privilege is closely related to the right to counsel guaranteed by the United States Constitution and the Colorado Constitution. U.S. Const, amend. VI; Colo. Const, art. II, § 16. We recognized this connection in Hutchinson, in which we 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.

742 P.2d at 882. In this statement we acknowledged the importance of the attorney-client privilege to ensuring the effective assistance of counsel. In Hutchinson, we held that the attorney-client privilege extends to the findings of a handwriting expert hired by the defense. The attorney-client privilege barred the prosecution from calling in its case in chief an expert witness hired by the defense.

Although Hutchinson dealt specifically with the need for a handwriting expert, we identified the importance of expert testimony for an attorney in a variety of contexts:

Criminal cases commonly involve complex issues revolving around medical, psychiatric, scientific or accounting concepts. Frequently, in these types of cases, it is not only desirable — but absolutely vital — that a defense attorney consult an expert for guidance and interpretation. Without such assistance, an attorney may be unable to rationally determine technical and eviden-tiary strategy or to properly prepare for cross examination of the prosecution’s witnesses or for presentation or rebuttal of physical evidence.... Consequently, it cannot be denied that a defense counsel’s access to expert assistance is a crucial element in assuring a defendant’s right to effective legal assistance, and ultimately, a fair trial.

Id. at 881 (citations omitted and emphasis added).

Other courts have recognized the connection between protecting psychiatric testimony under the attorney-client privilege and the Sixth Amendment right to counsel in the insanity defense context. In Alvarez, the Third Circuit Court of Appeals wrote:

We see no distinction between the need of defense counsel for expert assistance in accounting matters and the same need in matters of psychiatry. The effective assistance of counsel with respect to the preparation of an insanity defense demands recognition that a defendant be as free to communicate with a psychiatric expert as with the attorney he is assisting.... But when, as here, the defendant does not call the expert the same privilege applies with respect to communications from the defendant as applies to such communications to the attorney himself.

519 F.2d at 1046; see also People v. Fuller, 791 P.2d 702, 711 (Colo.1990) (Lohr, J., dissenting); Knuckles, No. 73616, 1994 WL *30246880, at 6; Pratt, 398 A.2d 421, 423; State v. Mingo, 77 N.J. 576, 392 A.2d 590, 592-594 (1978).3 These courts have recognized that requiring the defense to provide the findings of its psychiatric experts to the prosecution severely compromises the defendant’s right to effective assistance of counsel. A defense attorney’s ability to investigate a case fully is substantially impaired if the attorney must risk production to the state of any prejudicial information discovered. This creates an impermissible pressure on attorneys to curtail their investigative efforts in order to avoid producing evidence for the prosecution.

The majority asserts in holding that section 16-8-103.6 does not violate an accused’s right to effective assistance of counsel that this statute is necessary to promote the discovery of the truth. The majority argues that because the accused is the sole source of evidence to determine sanity, there is the potential for the defendant to obfuscate the truth by manipulating the information the state receives. Maj. op. at 296. In addition, the majority contends that the “interest of public justice” compels full disclosure of psychiatric evaluations in contrast to the protections afforded to other expert testimony. Maj. op. at 295. The majority also maintains that our holding in Hutchinson, that expert testimony is covered under the attorney-client privilege, is not dispositive of the present case. The majority states that in Hutchinson the defense expert’s information was offered on the issue of the defendant’s guilt rather than the limited issue of insanity as is the case here. Maj. op. at 295.

I find the majority’s reasoning unpersuasive. First, the legislature has provided the prosecution with adequate access to psychiatric information about the defendant. Section 16-8-103.5(4), 8A C.R.S. (1994 Supp.), requires the court to order a defendant who pleads the defense of impaired mental condition to be examined pursuant to section 16-8-106, 8A C.R.S. (1986 & 1994 Supp.). Section 16-8-105(1), 8A C.R.S. (1986), requires the court to commit a defendant who pleads not guilty by reason of insanity for a sanity investigation. This sanity investigation is also conducted in compliance with section 16-8-106. Section 16-8-106(1), 8A C.R.S. (1994 Supp.), provides for a thorough examination of the defendant.4 The prosecuting attorney has full access to reports of these examinations. § 16-8-106(4), 8A C.R.S. (1986). Further, this court has held that the mandatory examination scheme does not preclude the private employment of physicians or psychiatrists by the prosecution with a view toward offering their testimony. Early v. People, 142 Colo. 462, 468-469, 352 P.2d 112, 116, cert. denied, 364 U.S. 847, 81 S.Ct. 90, 5 L.Ed.2d 70 (1960).5 In addition to the court ordered examinations, the prosecution is privy to any psychiatric reports the defense elects to use at the sanity trial.6 § 16-8-*303108(2), 8A C.R.S. (1994 Supp.); People v. Rosenthal, 617 P.2d 551, 555 (Colo.1980). The prosecution may use this information to consult its own experts as well as to cross examine defense experts.

Second, psychiatrists and psychologists are experts in their field. The majority’s fears that defendants will be able to manipulate their behavior to such an extent that professional psychiatrists and psychologists will be mistaken as to their sanity are overstated. Maj. op. at 296. I do not believe most defendants are capable of this manipulation or that trained professionals will be so easily deceived.

Third, I find the majority’s suggestion that defense psychiatric records are necessary to promote truth because the accused will be more candid with defense experts to be unfounded. Maj. op. at 295, 296. Any extra openness a defendant may have with defense experts will disappear as a result of the majority’s ruling. Defense counsel will advise their clients as to the effect of the majority’s ruling in this case. Defendants, knowing that the prosecution may be able to use reports from any psychiatrist to whom they speak, will be equally guarded with all experts. The majority’s ruling does little to enhance a trier of fact’s knowledge as to a defendant’s state of mind.

Fourth, the legislature has provided for examination of uncooperative defendants. Section 16-8-106(3), 8A C.R.S. (1986), provides:

When the defendant is noncooperative with psychiatrists and other personnel conducting the examination, an opinion of the mental condition of the defendant may be rendered by such psychiatrists or other personnel based upon such confessions, admissions, and any other evidence of the circumstances surrounding the commission of the offense, as well as the known medical and social history of the defendant, and such opinion may be admissible into evidence at trial. It shall also be permissible to conduct a narcoanalytic interview of the defendant with such drugs as are medically appropriate and to subject the defendant to a polygraph examination.

This provision furthers the truth-seeking process by allowing psychiatric experts to use a variety of methods to ascertain a defendant’s “true” state of mind. In addition, this statute also authorizes “psychiatrists and other personnel” to testify as to the results of the narcoanalytic interview and polygraph examination to the. extent that the results entered into the formation of their opinions. Id. This provision, by ensuring that the prosecution has reliable psychiatric data about the accused, lessens the prosecution’s need for reports from defense-retained experts.

The majority also claims that our holding in Hutchinson, that the prosecution’s use of a defense handwriting expert as part of its case in chief violated the defendant’s right to effective assistance of counsel, is not disposi-tive of this case. Maj. op. at 295. The majority distinguishes Hutchinson by stating that the expert opinion in Hutchinson was offered in the guilt phase of a trial and the psychiatric testimony in this case is offered only on the issue of insanity. Id. Although in Hutchinson, we mentioned this guilt/sanity distinction, we did so only to distinguish non-controlling cases. 742 P.2d 875, 885. There is no significant difference between the guilt and sanity phases of a trial that justifies the majority’s ruling.

We considered a similar argument in People ex rel. Juhan v. District Court, 165 Colo. 253, 263-270, 439 P.2d 741, 746-750 (1968). In Juhan we held a statute that required a defendant to prove insanity beyond a reasonable doubt to be unconstitutional. While doing so we considered and disposed of the argument that there is a difference between the guilt and insanity phase of trial that justifies a different constitutional standard. We stated:

The argument is made that in a criminal ease, even though insanity is a full and complete defense, where that issue by statute must be tried separately no defendant *304can be found guilty, and for that reason “due process of law” does not require that this very material ingredient of guilt must be established beyond a reasonable doubt. By procedurally requiring a separate trial on this issue of mental capacity to commit any crime — which admittedly is a necessary ingredient of any offense — in some mystical way, it is argued that the material ingredient thus set apart for separate trial shall be governed by rules wholly inapplicable to all other necessary ingredients of the completed offense to be thereafter adjudicated; and this is urged notwithstanding the firmly established doctrine that as to every necessary ingredient of the total crime there must be proof beyond a reasonable doubt.

Id. at 264, 439 P.2d at 747. In Juhan we recognized that in the separate sanity trial the guilt of the defendant as to mental capacity to commit a crime is being finally determined. Id. at 263, 439 P.2d at 746. For this reason we held that the defendant’s right to due process and the attendant requirement of proof beyond a reasonable doubt is applicable to the sanity phase of a trial as well as to the guilt phase. The same reasoning should apply in the present case.

A defendant’s liberty is equally at stake in both the guilt and sanity phases of trial. A defendant’s need for effective assistance of counsel is equally grave. Because the defendant’s legal culpability is being decided in both the guilt and insanity phases of trial, a defendant’s constitutional right to effective assistance of counsel should be protected in both. Thus, the right of a defense counsel to consult with experts without fear of compelled disclosure should apply here.

Finally, the majority bases much of its decision on ensuring the viability of the truth-seeking process. Maj. op. at 296. Truth-seeking of course is. important. However, the criminal justice system is based on the principle that truth seeking is best achieved through the adversarial process. “ ‘The very premise of our adversary system of criminal justice is that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free.’ ” United States v. Cronic, 466 U.S. 648, 655, 104 S.Ct. 2039, 2045, 80 L.Ed.2d 657 (1984) (quoting Herring v. New York, 422 U.S. 853, 862, 95 S.Ct. 2550, 2555, 45 L.Ed.2d 593 (1975)). Allowing defense counsel to consult freely with their own experts will promote truth seeking through the adversary process. As we stated in Hutchinson:

Therefore, we cannot approve the use of defense counsel’s expert in the fashion employed in this case [prosecution used defense handwriting expert in case in chief]. Such a practice is inconsistent with the meaningful adversarial exchange guaranteed by the sixth amendment and article II, section 16 of the Colorado Constitution. As the Supreme Court has said, when the judicial process loses its character as confrontation between adversaries, the right to counsel has been violated.

742 P.2d at 882 (citing Cronic, 466 U.S. at 656-57, 104 S.Ct. at 2045-46). Requiring disclosure of defense-procured psychiatric information erodes the adversarial process by compromising a defense counsel’s ability to investigate a case and advise a client. Shielding this information will ensure effective advocacy and thus promote truth seeking.

The arguments advanced by the majority do not persuade me of the correctness of the cramped scope that it recognizes for a defendant’s constitutional right to effective assistance of counsel. As explained above, the improvement to the truth seeking process is minimal and the detriment to the defendant and the criminal justice system is great. Absent a compelling necessity on the part of the prosecution — not present here — I would hold that compelled disclosure of non-testifying defense psychiatric expert reports and prose-cutorial use of these experts in its case in chief violates a defendant’s constitutional right to effective assistance of counsel. To the extent that sections 16-8-103.6 and 16-8-108(2), 8A C.R.S. (1994 Supp.), require disclosure and allow the prosecution to use this testimony, I would hold these provisions unconstitutional.

SCOTT, J., joins in this opinion.

. The order directed the trial court to show cause why the following relief should not be granted: “[W]hy the Fremont County District Court should not be prohibited from requiring Christopher Shane Gray to reveal the results of any confidential, privileged psychiatric examination to the prosecution and from allowing the prosecution the use of psychiatric records of Mr. Gray which were generated from treatment occurring prior to the offenses in question.”

. My discussion addresses the physician-patient privilege; the reasoning is equally applicable to the psychologist-patient privilege codified in subsection 13-90-107(l)(g), 6A C.R.S. (1994 Supp.).

. I recognize that many courts have ruled that prosecutorial discovery and use of defense psychiatric information is not prohibited by the right to effective assistance of counsel. See Maj. op. at 295-296. I am persuaded, however, that the contrary authority upon which I rely is better reasoned and more consistent with effectuation of the protections that the Sixth Amendment right to counsel was adopted to provide.

. Section 16-8-106(1) requires: "All examinations ordered by the court in criminal cases shall be accomplished by the entry of an order of the court specifying the place where such examination is to be conducted and the period of time allocated for such examination.... The defendant shall be observed and examined by one or more physicians who are specialists in nervous and mental diseases during such period as the court directs. For good cause shown, upon motion of the prosecution or defendant, or upon the court's own motion, the court may order such further or other examination, including services of psychologists, as is advisable under the circumstances. Nothing in this section shall abridge the right of the defendant to procure a psychiatric examination as provided in section 16-8-108.”

. Early was decided under 1953 C.R.S. § 39-8-1, and 1953 C.R.S. § 39-8-2 which are the predecessors to sections 16-8-103 and 16-8-105, respectively. Since the two statutory schemes are almost identical, the ruling in Early is equally applicable today.

. Section 16-8-108(2) as amended requires the defense to provide the prosecution with any report of examination of the defendant made at the instance of the defense. As stated above, this statute may violate a defendant’s constitutional right to counsel. See supra, pp. 299-300. The reasoning in Section III, discussing a defendant's right to effective assistance of counsel as it pertains to the majority's discussion of section 16-8-*303103.6, is applicable to section 16-8-108(2) to the extent that section 16-8-108(2) requires a defendant to disclose to the prosecution reports of defense-retained psychiatrists which the defendant does not intend to use at trial.