Can a prosecutor have a criminal defendant examined by doctors during trial without the defense lawyer's knowledge or consent?

Plain-English summary

The inquiry asked whether a prosecuting attorney could have a defendant in a criminal case examined by doctors during the course of the trial without the knowledge or consent of the defendant's counsel.

The Committee unanimously concluded that such an examination, without the knowledge or consent of defense counsel, would violate Canons 19 and 22 (10-0). The opinion cross-references Opinion 137.

Currency note

This opinion was issued in 1953, under the former Texas Canons of Ethics, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. Fairness to the opposing party and counsel, contact with represented persons, and the special duties of a prosecutor are now governed by Texas Disciplinary Rules 3.04, 4.02, and 3.09 and ABA Model Rules 3.4, 4.2, and 3.8. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could a prosecutor have the defendant examined by doctors during trial without telling defense counsel?

A: No. The Committee held unanimously that doing so without the knowledge or consent of defense counsel would violate Canons 19 and 22 (10-0).

Q: Did the prosecutor's role matter to the analysis?

A: The headnote frames the conduct as a prosecuting attorney taking advantage of opposite counsel, and the holding rests on the Canons governing candor and fairness.

Background and rules framework

The opinion interprets former Texas Canons 19 (candor and fairness) and 22, applied to a prosecutor arranging an examination of the defendant behind defense counsel. The modern analogs are ABA Model Rule 3.4 (fairness to opposing party and counsel), Model Rule 4.2 (communication with a represented person), and Model Rule 3.8 (special responsibilities of a prosecutor).

Citations and references

Rules of Professional Conduct:

• MR 3.4 (fairness to opposing party and counsel), as the modern analog
• MR 4.2 (communication with person represented by counsel)
• MR 3.8 (special responsibilities of a prosecutor)
• Texas Canon 19 (candor and fairness)
• Texas Canon 22

Other opinions cited:

• Texas Ethics Opinion 137: also addresses examination of the defendant without defense counsel's consent

See also

• TX Ethics Op. 88: Filing a Brief Without Serving Opposing Counsel
• TX Ethics Op. 117: Obtaining a Statement From an Opposing Party
• TX Ethics Op. 130: Claimant's Lawyer's Letter to a Tortfeasor

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-87/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_87.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

QUESTION PRESENTED

Would it be a violation of the Canons of Ethics for a prosecuting attorney to have a defendant in a criminal case examined by doctors during the course of the trial without the knowledge or consent of counsel for defendant?

18 Baylor L. Rev. 231 (1966)

CANDOR AND FAIRNESS - TAKING ADVANTAGE OF OPPOSITE COUNSEL - PROSECUTING ATTORNEY
A prosecuting attorney may not have a defendant in a criminal case examined by doctors during the course of the trial without the knowledge or consent of defendant's attorney.

Canons 19, 22.

The members of the committee are unanimously of the opinion that such an examination of the defendant without the knowledge or consent of his counsel would violate Canons 19 and 22. (10-0) (See Opinion 137)

Tex. Comm. On Professional Ethics, Op. 87 (1953)