Psychiatric expert witness permitted to observe trial testimony

judge and expert witnessThe exclusion of potential witnesses during the testimony of other witnesses is routine during criminal trials, since there is a possibility that their testimony will be tainted or influenced by observing other testimonies on the same or similar topics. The Sullivan County Court however, decided to permit a psychiatric expert witness to watch the trial testimony of another key witness in the case of People v. Novak.

Particulars of the case

Defendant Paul Novak was indicted and charged with murder of his own wife, arson, burglary, larceny, and insurance fraud. Codefendant Scott Sherwood, a licensed and functioning paramedic and EMT in New York City, pleaded guilty of conspiracy to commit the murder and agreed to testify against Defendant at trial. Codefendant had a significant mental, psychological and emotional history, including depression, anxiety, and bi-polar disorder, and took prescription medications for the same. Defendant argued that it was necessary for his psychiatric expert witness, Dr. Kevin Smith, to observe Codefendant’s testimony so he could assist the Defense with fashioning an appropriate cross-examination and then testify on Defendant’s behalf with regard to Codefendant’s medical history and credibility.

What is the law on this?

While the Federal Rules of Evidence 615 and 702 allow for an expert to observe the testimony of other witnesses during a trial, the New York rules of evidence, as well as case law, do not. However, regardless, the Court of Appeals as well as the Appellate Divisions have consistently held such a decision is in the discretion of the trial court, depending on the nature of the case as well as the proposed subject matter of the expert’s testimony.

But can a mentally unstable person testify?

The mere fact that one is insane or mentally ill does not per se disqualify him from testifying. He may give evidence, provided only that he has sufficient intelligence to understand the nature of the oath and to give a reasonably accurate account of what he has seen and hear vis-a-vis the subject matter about which he is interrogated. (see People v. Rensing, 14 N.Y.2d 210 [1964].)

So what did the Court say?

At the outset, the Court clarified that there was no evidence that Codefendant was unable to work or understand the nature of the oath due to his mental illnesses and medications, or was suffering from any mental or medical condition at the time of the murder.

Then relying on People v. Wilson, 133 A.D.2d 179, 518 N.Y.S.2d 690 [2d Dept.1987] where the Appellate Court held that an expert may not testify with regard to a witness’s mental state after having observed the witness’s testimony at the trial, the County Court decided to allow Dr. Smith to observe the Codefendant’s testimony, provided he would not testify as to “Sherwood’s veracity, nor comment on the truthfulness of his testimony or any other aspect of Sherwood’s testimony.”

The Court also expressed concern over the potential prejudice that the Prosecution would suffer if Dr. Smith testified with respect to (i) Codefendant’s exhibition of any particular signs of psychological disorders or (ii) impairment of his evidence as a result of his prior medical diagnoses or the medications and held “to allow such testimony from an expert who has conducted no clinical examination of the witness would place before the jury impermissibly speculative testimony, as well as usurp the jury’s function to determine the veracity and credibility of Sherwood’s testimony and confession.” As a potential remedy, the Court then offered the Prosecution, “if requested, a Frye hearing to first determine the general scientific reliability of such a medical/psychiatric thesis before the jury will be subject to its influence.”

**Written for the web by the EWG Editorial Team

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