EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Monday, August 25, 2014

Expertly Executed: Court of Appeals of Kentucky Opinion Fills Rule 615(3) Void in the Bluegrass State

Similar to its federal counterpartKentucky Rule of Evidence 615 provides that

At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses and it may make the order on its own motion. This rule does not authorize exclusion of:

(1) A party who is a natural person;

(2) An officer or employee of a party which is not a natural person designated as its representative by its attorney; or

(3) A person whose presence is shown by a party to be essential to the presentation of the party's cause.

As the Court of Appeals of Kentucky noted in its recent opinion in McAbee v. Chapman, 2014 WL 4115907 (Ky. 2014), "[o]ur Supreme Court has not spoken in detail regarding the application of KRE 615(3). SO, how did the court rule in Chapman?

In Chapman, Kathy McAbee appealed the judgment of the circuit court, which ruled in favor of Dr. Darren Chapman in a medical negligence action. The sole issue on appeal was whether the circuit court erred when it ruled under Rule 615(3) that experts would be permitted to remain in the courtroom during testimony.

While, as noted, the court indicated that the Supreme Court of Kentucky has not spoken in detail regarding Rule 615(3), it noted that the Kentucky Supremes did

provide[] some guidance in Hatfield v. Commonwealth,...in which the Court reversed the trial court's decision to allow a witness to remain in the courtroom because there had been no basis demonstrated to support the decision. The trial court had made a conclusory ruling. In contrast, the Supreme Court held that the ruling was improper, holding that before the exception may be invoked, the requesting party must make a showing that its witness is essential to the party's case.

Given this paucity of Kentucky precedent, the court also looked to United States v. Phibbs, 999 F.2d 1053, 1073 (6th Cir.1993), in which the Sixth Circuit held that "[t]he essential witness exception set out in Rule 615(3) 'contemplates such persons as an agent who handled the transaction or an expert needed to advise counsel in the management of the litigation.'" 

Applying these rulings to the case at hand, the Court of Appeals of Kentucky was

persuaded that the case before us is similar to the situation contemplated by the law. As directed by Hatfield,...the trial court conferred with the parties before ruling on whether to allow the expert witnesses to remain in the courtroom. Dr. Chapman indicated that his expert witness was essential for management of the case. Neither expert would be testifying regarding the facts; both would offer their opinions.

Due to the type of testimony proffered by the experts, the trial court was satisfied that the experts would not influence each other regarding the facts. The facts had been provided to the experts by way of the medical records. Neither expert had participated in the treatment of McAbee.

As the trial court noted, the experts would be offering different opinions about the same set of facts. Each party would necessarily need to address the opinions of the opposing party on cross-examination. Because of the technical nature of the evidence, trial strategy would require input of the experts. As in Martin, supra, this necessary consultation would defeat the purpose of exclusion of witnesses. Therefore, the trial court's final assessment was that allowing the experts to listen to each other firsthand would be both expedient and helpful to the jury.

(Hat tip to Steve Frederick for the link)



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