Another look at 16(K)
The advent of open discovery in criminal cases in 2010 ushered in a number of changes. One of them was 16(K), which required a party intending to use an expert witness to provide the witness' report twenty-one days in advance of trial.
The 6th District's decision in State v. Walls might give some new life to that rule.
It needs it.
Let's start with the facts. Walls was accused of raping his 16-year-old daughter. A pediatrician, Dr. Shievert, interviewed the girl and her younger brother. He described the girl's affect and behavior as "disturbing," but ultimately decided against any exams because she hadn't disclosed sexual abuse, and that the masturbation techniques she'd told him about could account for any exam findings. The prosecutors turned over that report.
In opening statements at trial, though, it became clear that Schievert's testimony would go far beyond that. And it did: he testified at length about delayed disclosure, grooming, and recantation, and told the jury that the girl's behaviors and reactions were typical of children who are the victims of multi-year incest.
None of that was included in his report. Walls objected to Sheivert testifying beyond the scope of his report, but the judge let it in. Walls appealed, arguing that 16(K) made exclusion of the doctor's testimony beyond the report mandatory.
So let's take a look at 16(K). After outlining what an expert report must include, it says
The written report and summary of qualifications shall be subject to disclosure under this rule no later than twenty-one days prior to trial, which period may be modified by the court for good cause shown, which does not prejudice any other party. Failure to disclose the written report to opposing counsel shall preclude the expert's testimony at trial.
The appellate courts have expanded that bolded phrase by adding the language, "if the judge decides to." Typical is the 3rd District's decision in State v. Opp. While acknowledging the "mandatory language" of the rule, it held that "although division (K) of the rule is compulsory as to the parties, the trial court retains discretion over the sanctions for violation of this division."
I have no idea how a rule that is "compulsory as to the parties" isn't compulsory as to the court. But the opinion does have a basis in fact: there are any number of decisions saying that a court has discretion on whether and what sanctions to impose for discovery violations. The Supreme Court has held that judges should use "the least severe sanction that is consistent with the rules of discovery." In fact, 16(L) seems to address that very issue:
The trial court may make orders regulating discovery not inconsistent with this rule. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule or with an order issued pursuant to this rule, the court may order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing in evidence the material not disclosed, or it may make such other order as it deems just under the circumstances.
But look at that first sentence again, because that's the key for the Walls court. Before 16(L), the courts did have discretion to make any order regarding discovery violations "as it deems just under the circumstances."
But Crim.R. 16(L)(1) added an important limitation on the trial court's discretion: that it make orders "not inconsistent with this rule." The plain language of Crim.R. 16(K) requires exclusion of an expert's testimony where a written report from the expert has not been disclosed. It would, therefore, be inconsistent with Crim.R. 16(K) to hold otherwise ... We, therefore, hold that Crim.R. 16(K) mandates exclusion of expert testimony where a written report has not been disclosed in accordance with the rule.
That's subject to some exceptions - what isn't? - but they're fairly narrow. The rule does allow the judge to modify the deadline, but only if good cause is shown and there's no prejudice. There may be times when it's not clear whether the testimony exceeds the scope of the report; the judge's discretion comes into play there. A defendant can waive a violation of the rule.
And last, common sense comes into play: the purpose of the rule is to prevent trial by ambush, and if that isn't happening, there isn't a reason to exclude the testimony. As an example, the court points to a case where the State didn't provide a report, but six months before trial did provide the testimony of the doctor in a companion case. That was enough to avert any fear of "unfair surprise."
It's not clear how far Walls is going to take us. Several districts - the 3rd, 4th, 5th, 11th, and 12th - seem to have taken a position contrary to Walls, and you'd obviously have a hard time tackling precedent there.
Other districts, while not having taken an express position on the issue, appear willing to find any wiggle room they can in 16(K)'s stricture about exclusion being mandatory. I'm not sure Walls is going to change opinions on that score, but it's certainly worth a shot.
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