Friday, February 19, 2021
Texas Court Finds Defendant Could Not Have Family-Violence Expert Excluded From Courtroom During His Testimony
Texas Rule of Evidence 614 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 and, in civil cases, that person’s spouse;
(b) after being designated as the party’s representative by its attorney:
(1) in a civil case, an officer or employee of a party that is not a natural person; or
(2) in a criminal case, a defendant that is not a natural person;
(c) a person whose presence a party shows to be essential to presenting the party’s claim or defense; or
(d) the victim in a criminal case, unless the court determines that the victim’s testimony would be materially affected by hearing other testimony at the trial.
So, can a defendant in a family violence case have a family-violence expert excluded from the courtroom when he testifies? That was the question addressed by the Texas Court of Appeals, Waco, in its recent opinion in Parrish v. State, 2021 WL 627934 (Tex.App. 2021).
In Parrish, Marcus Parrish was charged with assault family violence and sought to invoke Rule 614 to exclude a family-violence expert from the courtroom testimony. The judge denied his request, Parrish was convicted, and he appealed. On appeal, the court concluded that
the Court of Criminal Appeals has held that a trial court is vested with discretion and may permit expert witnesses to be exempt from “the Rule,” so they may hear other witnesses testify and then base their opinions on such testimony....
Prior to appellant's testimony during the guilt-innocence phase of trial, appellant objected to the presence of Detective Michelle Starr of the Waco Police Department in the courtroom during his testimony, arguing that she is a fact witness in the case because she was the detective on the case, and because she drafted and signed the arrest-warrant affidavit. The State responded that Detective Starr had been designated as an expert in Assault Family Violence and that her presence was necessary to “observe the way [appellant] answers the questions and—and the way he behaves in the courtroom to be able to testify to that,” especially with regard to relationships between “assault family violence victims and perpetrators.”
As noted above, the Court of Criminal Appeals has held that the trial court is vested with discretion and may permit expert witnesses to be exempt from “the Rule” so they may hear other witnesses testify and then base their opinions on such testimony....Therefore, in line with these cases, we find no abuse of discretion. The purpose articulated by the State regarding Detective Starr's testimony—allowing a domestic violence expert to take appellant's testimony into account when offering her opinion—falls within the exemptions provided for in the rule.
Interesting find, thanks for posting this!
Two quick points:
(1) Although it's not relevant to this particular case, isn't there a glaring typo in the Rule? Specifically, the problem lies in subsection (b)(2). If the text is limited to just that subsection, it reads: "But this rule does not authorize excluding: ... after being designated as the party’s representative by its attorney: ... in a criminal case, a defendant that is not a natural person". That doesn't make sense though. How can a legal person be designated as a representative, especially as its very own representative? I suspect the intent was to mirror (b)(1) and exempt from the Rule the officer or employee of, e.g., a corporation, that is a criminal defendant. That's how it was described on the bottom of p. 2 when quoting from Russell v. State: "In criminal cases, those witnesses [not authorized to be excluded by the Rule] are, ... 'the representative of a defendant who is not a natural person' ...". But again, unless I missed something, that's not what the literal text of the Rule currently says.
(2) I'm embarrassed to say I didn't realize it was so foundational (no pun!) that everyone just calls it "the Rule"—apparently everywhere, not only in TX.
Posted by: hardreaders | Feb 20, 2021 11:03:15 AM