03-03-09 State of New Jersey v. Sidney Atkins
A-4734-05T4
Following the established rule in State v. Mingo, 77 N.J.
576, 586-87 (1978), we find reversible error in allowing the
prosecution to invade the privilege with regard to the defense-
retained consultant. Accordingly "the report and testimony of a
defense-retained expert consultant who will not testify as a
defense witness and whose report will not be utilized as
evidence are not available to the State." Ibid. The
justification that defendant waived the privilege by operation
of N.J.R.E. 607 in introducing the victim's recantation fails
because other evidence was available to the prosecution to rebut
the charge of recent fabrication, improper influence, or motive
which would not have been unduly prejudicial to defendant.
