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Univ. of South Carolina School of Law

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Monday, February 20, 2012

You've Got Mail: Trial Judge Applies "Rule On Witnesses" To Circumscribe Defense Expert Testimony In Huguely Trial

You may have heard about the current prosecution of former University of Virginia lacrosse player George Huguely for the murder of fellow UVA lacrosse player Yeardley Love. It has been a case that brought the prosecutor to tears as he showed photographs of the victim's battered body to jurors during closing arguments. It has been a case in which prosecution and defense experts have clashed over whether the victim died from blunt force trauma to the head. And it has been a case in which the trial judge circumscribed the testimony of a key expert witness for the defense. In this post, I will address this last matter.

As reported by ABC News, the defense's final witness, Dr. Ronald Uscinski, a neurosurgeon, testified that Yeardley Love's skull and brain showed no evidence of blunt force trauma, which contradicted the prosecution's claim that Love died from blunt force trauma to the head after Huguely beat her severly and left her to die. Dr. Uscinski, however, was not allowed to offer opinion testimony about other subjects. Why? According to the article,

Virginia's "Rule on Witnesses" prohibits witnesses from being empowered with certain information before their testimony once the trial is in progress.

Prosecutor Warner "Dave" Chapman provided the judge with three emails from the defense team in which defense witness Uscinski is included. The emails reportedly included information that summarized prosecution witness Dr. Renu Virmani's testimony.

For instance,

The third email originated from defense attorney Rhonda Quagliana and was sent to three people, including Uscinski. It included information about CPR and blood reperfusion, tissue damage caused when blood returns to the tissue after a period when oxygen has been lacking.

Dr. Uscinski told the judge he did not recall seeing the e-mails, but that didn't prevent the judge from applying the "Rule on Witnesses" to preclude the doctor from testifying concerning certain subjects, such as CPR.

So, what is the Rule on Witnesses? Well, at the federal level, it is part and parcel of Federal Rule of Evidence 615, which provides that

At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize excluding:

(a) a party who is a natural person;

(b) an officer or employee of a party that is not a natural person, after being designated as the party’s representative by its attorney;

(c) a person whose presence a party shows to be essential to presenting the party’s claim or defense; or

(d) a person authorized by statute to be present.

Of course, this Rule looks like a sequestration rule, and it mainly is, but it also precludes later witnesses from learning about the testimony of prior witnesses before testifying. Last year, I posted an entry about the opinion of the D.C. Court of Appeals in Marshall v. United States, 2011 WL 1044594 (D.C. 2011) (Download Marshall), which discussed D.C.'s "Rule on Witnesses." As that court explained, it,

Under the rule, a trial court, acting on its own or at the request of a party, has broad discretion to take steps aimed at preventing the intentional or unintentional distortion of testimony by, for example, requiring witnesses to remain outside the courtroom except when they are testifying, directing witnesses not to communicate with each other about the substance of their testimony, and prohibiting the parties and counsel from sharing information about one witness' testimony with another witness.

Like D.C., Virginia does not have codified rules of evidence, but as the Huguely case makes clear, Virginia, like all U.S. jurisdictions, applies a "Rule on Witnesses."

-CM

http://lawprofessors.typepad.com/evidenceprof/2012/02/you-may-have-heard-about-the-current-prosecution-of-former-university-of-virginia-lacrosse-player-george-huguely-for-the-murd.html

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