Abuse of Discretion To Exclude Defense Expert from the Courtroom During Cross-Examination of Government Expert

Cynthia Sanchez v. District of Columbia, No. 13-CT-128 (decided November 6, 2014)

Players:  Beckwith, McLeese, Newman.  Opinion by Senior Judge Newman.  Grey Gardner for Ms. Sanchez.  Trial judge:  Heidi M. Pasichow.

Facts:  In a DUI bench trial, the government’s principal fact and expert witness was the U.S. Capitol Police officer who stopped Ms. Sanchez’s car, administered sobriety tests, and arrested her.  During the defense’s cross-examination of the officer, the trial judge summoned the parties to the bench and sua sponte invoked the rule on witnesses to exclude the defense’s expert witness from the courtroom, stating that it was not “appropriate” for him to hear the cross-examination of the officer.  Defense counsel argued that his expert needed to be present during cross-examination to see the officer demonstrate the sobriety tests he conducted and opine as to whether he administered the tests correctly, as well as to help defense counsel formulate questions for cross-examination.  The trial judge refused to reconsider her ruling.

           

Issue:  Was it reversible error to exclude a defense expert witness from the courtroom during the cross-examination of the government’s principal fact and expert witness in a DUI bench trial?

Holding:  Yes.  Under the Federal Rules of Evidence and this Court’s prior cases, including Johnson v. District of Columbia, 655 A.2d 316 (D.C. 1995) (per curiam), and Garmon v. United States, 684 A.2d 327 (D.C. 1996), “the presence in the courtroom of expert witnesses is the norm, subject to exceptions,” and in this case there was “no valid basis” for the expert’s exclusion.

Of Note:

• The defendant’s right to present expert witnesses “includes the need to afford the expert appropriate means of gathering the ‘facts and data’ upon which to base an opinion,” as well as “a right to have his attorney consult with the expert during cross-examination of the government’s expert so as to enable defense counsel to conduct meaningful cross-examination.”  Slip op. at 9.
• The erroneous exclusion of the defense expert was prejudicial even though the expert was able to rely on the officer’s direct examination and defense counsel’s retelling of the “facts” elicited from the officer on cross-examination to opine that the officer had not administered some of the sobriety tests correctly, because “the defendant was deprived of further opportunity to evaluate [the officer’s] methodology directly and to point out any additional flaws as [the defense expert] testified,” and also “deprived of the use of her expert to meaningfully assist counsel in the conduct of the cross-examination of [the officer].”  Slip op. at 11.  MW.

Read full opinion here.