The opinion of the court was delivered by: MCAVOY
The defendants object to the government's calling as its own witnesses the defenses' consultative, non-testifying experts. The defense claims that these experts were retained to investigate the government's ballistics evidence on the defendants' behalf and to assist these defendants' attorneys in preparing a defense to the criminal charges facing their clients. Furthermore, defendant Tyrone Walker asserts that John Dillon is still under retainer to the defense and is providing ongoing consulting services. The defendants also seek a declaration of mistrial because of the government's statement in their opening that it intended to call an expert "hired by one of the defendants here" to examine the shell casings and who had "concluded that the ballistics expert from the NYPD was correct." [Tr. of 11/16/95 at pp. 43, 44].
1. ADMISSIBILITY OF THE PROFFERED TESTIMONY
For purposes of this initial discussion the Court will set aside the very difficult question of under what circumstances the government can call to the witness stand as its witnesses, the defendants' non-testifying consultative experts. Looking solely at the government's expressed intention to call Frangipani and Dillon as ballistics experts who, it believes, will duplicate the testimony of the government's expert, and therefore buttress the conclusions of the government's expert, the Court holds that such testimony is simply cumulative and inadmissible under Rule of Evidence 403.
The government has already indicated that it intends to call its own ballistics expert. This Court has never in the past allowed the government to make its case through the sheer weight of successive expert testimony by even two experts as to their identical conclusions on identical issues, let alone the three experts that the government seeks to introduce on the single issue of whether or not the gun that killed Monsour was the same gun allegedly recovered in Brooklyn on the day of the Muskin robbery. Nor is the Court inclined to permit such repetitive and cumulative proof in this already lengthy prosecution.
b. Confusion of the Issues:
Beyond the cumulative aspect of the government's proof, and still without deciding whether in any circumstance the government could properly call these defense-retained consultative experts, in no event would the Court allow the government to identify these witnesses as the "defendants' own experts," as the government improperly did in its opening. Other courts that have considered the question have recognized the important evidentiary rationales underlying such a restriction. See Steele v. Seglie, 1986 WL 30765 at 4 (D.Kan. Mar 27, 1986); Sun Charm Ranch, Inc. v. Orlando, 407 So. 2d 938, 940-41 (Fla. Dist. Ct. App. 1981). Indeed, even the Fifth Circuit case most strongly urged by the government in support of its position expressly recognizes that in that case, the district court overruled that defendant's objection to the government's use of his expert with the reservation that the government not comment upon the fact of the expert's previous employment by defense counsel. See United States v. Pipkins, 528 F.2d 559, 561 (5th Cir.), cert. denied, 426 U.S. 952, 49 L. Ed. 2d 1191, 96 S. Ct. 3177 (1976). The government's other most persuasive authority, People v. Greene, 153 A.D.2d 439, 552 N.Y.S.2d 640 (App. Div. 2d Dept.), cert denied 498 U.S. 947 (1990), stresses that "at no time did the defense counsel specifically request that the prosecutor be precluded from indicating that the witness was originally retained by defense counsel." Greene at 645. The Greene Court especially notes that in that appeal, the defendant's claims of undue prejudice from introduction of the fact that the expert had been originally retained by defense counsel were not preserved for review as a matter of law.
Second, identifying these experts as "the defenses' own" serves only to invite the jury to give undue weight to these witnesses opinions. Indeed, that characterization forces the defendants to involuntarily "vouch for" the credibility of experts that they have decided not to call as witnesses. Forcing the defendants into that posture risks unfairly neutralizing the effect of any otherwise proper impeachment of these witnesses the defense might undertake.
Third, in criminal proceedings much may turn on the jury's assessment of the candor and credibility of a defendant's attorneys. The jury makes that assessment unfamiliar with the adversary process, a defense attorney's duties in fully exploring the government's case against his client, and the role an attorney plays in developing and presenting expert testimony. To permit the government to stress that the defense was in possession of an expert's negative conclusions but declined to place those conclusions before the jury, raises a real danger of the jury concluding that the defense had improperly attempted to suppress adverse facts or opinions. In light of the distinct possibility of such negative inferences, "the probative value of such evidence [is] thus . . . substantially outweighed by its attendant danger of unfair prejudice." Steele, cited above, at 4-5. It follows then that under this Court's Rule 403 balancing, any reference to the defense's prior employment of these experts must be precluded.
c. Work-Product Privilege:
Notwithstanding the Court's conclusions that the contested testimony is both cumulative and unduly prejudicial, the Court has examined the persuasive authority proffered by both sides regarding the government's proposed use of the defenses' non-testifying, consultative experts. The Court concludes that the government should be precluded from eliciting testimony from the defenses' experts concerning the efforts they undertook at the request of defendants' attorneys, or the opinions and conclusions they developed at the behest of defendants' attorneys, unless the government first makes a showing of substantial need of that testimony and inability to obtain the substantial equivalent of that testimony without undue hardship. Compare Fed. R. Civ. P Rule 26(b)(3); Hickman v. Taylor, 329 U.S. 495, 509-10, 91 L. Ed. 451, 67 S. Ct. 385 (1947). The Court's conclusion is grounded in a practical application of the "work-product" doctrine. While the ...