Tuesday, February 21, 2012
Is There A Doctor In The Courtroom?: Alabama Court Finds No Problem With Prosecution Expert Hearing Defense Experts' Testimony
Yesterday, I posted an entry about an expert defense witness not being allowed to testify concerning certain subjects pursuant to the "Rule on Witnesses" because he was exposed to the testimony of an expert witness for the prosecution before giving his own testimony. But isn't one main purpose of calling a defense expert (often) to have that expert rebut the testimony of the expert witness for the prosecution, meaning that we would want the defense expert to be exposed to the prosecution's expert's testimony before testifying (and vice versa)? This is of course true, which is why application of the "Rule on Witnesses" to expert witnesses (and, indeed, all witnesses) is discretionary as is made clear by the recent opinion of the Court of Criminal Appeals of Alabama in Thompson v. State, 2012 WL 520873 (Ala.Crim.App. 2012).
In Thompson, Devin Thompson was convicted of murdering Fayette Police Officers Arnold Strickland and James Crump and police dispatcher Leslie "Ace" Mealer during the course of a robbery. At trial, prosecution expert
Dr. Adam Craig, a forensic pathologist with the Alabama Department of Forensic Sciences, testified that based on his review of the autopsy reports, the photographs taken of the bodies, and the testimony of Charles James and Michael Brown, that [the victims] all died of multiple gunshot wounds.
After he was convicted, Thompson appealed, claiming, inter alia, that the circuit court erred in allowing Dr. Craig to remain in the courtroom during the testimony of defense expert witnesses Charles James and Michael Brown. The Court of Criminal Appeals of Alabama disagreed, citing a prior opinion for the proposition that
"'Although an expert witness may not express an opinion based on the opinion of another expert, he may base his opinion upon the facts testified to by another expert.'...‘Where the rule for the exclusion of witnesses from the courtroom is invoked, it is within the sound discretion of the trial court to allow any one of the witnesses to remain in the courtroom during the examination of the others and the exercise of this discretion is not reviewable on appeal.'..."
Accordingly, the court found that "[a]llowing Dr. Craig to be exempted from the operation of Rule 615, Ala. R. Evid., was "a matter within the sound discretion of the trial court."