Your client’s charged with aggravated vehicular homicide and hit/skip, accused of driving drunk and running down a kid on his bike, and then leaving the scene.  The first charge goes nowhere — your client’s BAC was less than a fifth of the legal limit – the judge finds neither recklessness nor negligence, and 29′s that one.  That leaves you with leaving the scene, but you’ve got an argument there, too:  the state has to prove you knew you’d hit somebody.  Your claim is that the rider “ditched” the bike to avoid the collision, and your client never saw him.

You’ve got help here in the form of an expert witness, who will testify that the damage to the car isn’t consistent with having struck a person, but with the bike already being on the ground when the car struck it.  The neat thing is, this isn’t your own expert;  it’s a cop the state called as a fact witness, but on cross you show he’s an expert on accident reconstruction, and then begin to elicit the testimony about the positioning of the bike.

You feel pretty good about how sharp you are in pulling this off, up until the point where the trial judge prohibits the testimony because you didn’t submit an expert report.

That’s one of the issues on appeal from the 8th District’s decision last December in State v. Biro.  The chances of the Supreme Court accepting the case are a good bit higher because the new “open discovery” rules which went into effect this past July, unlike the previous version, mandates an exchange of reports.  Rule 16(K) requires an expert to prepare a written report, which must be submitted to the other side within 21 days.  The time can be modified, but the effect of failure to submit can’t:  “Failure to disclose the written report to opposing counsel shall preclude the expert’s testimony at trial.”

The question raised in Biro (you can read the Memorandum in Support of Jurisdiction here) is whether that applies to testimony elicited from an expert on cross-examination.  As I mentioned, the rules at the time of trial didn’t say anything about reports, but the trial court had entered an order specifically requiring the defense to furnish an expert report, if it intended to use one, by a certain time.  This allowed the appellate court to brush off the issue under the broad discretion given trial courts over discovery matters.

Left completely unaddressed in the court’s opinion is the difficulty of having the other side’s witness prepare a report for you on the expert testimony you hope to elicit from him on cross-examination.  There’s nothing in the opinion to indicate that there was any pre-trial collaboration between defense counsel and the cop; it appears simply to be the result of skillful cross-examination.

This isn’t an unusual situation, either, as the MISJ notes in a particularly compelling passage:

Every day in criminal trials, prosecutors call doctors, nurses and police officers with specialized training and expertise to the stand as “fact” witnesses to relate to their trained observations. Prosecutors emphasize in closing argument that jurors should give special weight to observations that are the product of specialized training. That same training qualifies the professional to opine on the significance of those observations, and the line between the factual observations of the professional and the expert opinion regarding those observations is decidedly fine… [I]f the direct examination can ask “what did you see,” then cross-examination must be able to ask, “what does that mean?”  

That’s not the only issue in Biro; he also raises the question of what is required for a felony violation of the hit-skip statute, RC 4549.02.  At the time of the incident, the statute made it a felony if “the violation results in the death of a person.”  Biro argued that this meant what it said:  his violation — fleeing the scene — rather than the accident itself had to result in the death.  The 8th didn’t buy that, either.  The best argument Biro’s got on this score is that last September the legislature amended the language to read that the crime was elevated to a felony if the accident, rather than the violation, was the cause of death.  You can make a pretty good argument that this is an expression of legislative intent that the previous version of the statute was directed at the violation, not the accident.  Unfortunately, that also undercuts the likelihood of the Supremes accepting jurisdiction:  why bother clarifying a statute that’s since been amended?

But the first issue is the key.  To be sure, whether the Supreme Court will address the obvious unworkability of a rule requiring parties to provide their adversaries with reports of anticipated cross-examination isn’t a lock; the 8th’s opinion in Biro is hedged with further observations that the officer might not have been qualified as an expert, or even if he was, not to give an expert opinion on this subject, and topped all that off with a hefty serving of Harmless Error.  Still, the likelihood of problems emerging because of the new rules requirement would seem to mandate that the Supreme Court address the issue sooner rather than later.