In McAbee v. Chapman, 504 S.W.3d 18 (Ky. 2016), the Kentucky Supreme Court in an opinion by Justice Lisabeth Hughes considered at length the applicability of KRE 615 to expert witnesses. That Rule of Evidence codifies what is known historically as “the rule of separation (or sequestration) of witnesses,” or “the witness rule.” It is commonly referred to by lawyers and judges when invoked at the beginning of jury trials as simply “the rule.” Under the rule, any party can request that trial witnesses not be permitted in the courtroom during the testimony of other witnesses. The purpose of the rule, which the Supreme Court in McAbee noted dates at least to biblical times, is to “discourage and expose ‘fabrication, inaccuracy, and collusion’” that can occur when a witness attempts to harmonize his or her testimony with that of others. 504 S.W.3d at 24 (citations omitted).
In McAbee, the Court held that the defendant who sought and obtained from the trial court an exemption from the rule for an expert witness had made an insufficient showing that the expert’s presence in the courtroom during the trial testimony of an opposing expert was “essential to the presentation of the party’s cause” within the meaning of KRE 615(3), and that the trial court had abused its discretion in declining to exclude the expert from the courtroom during the other expert’s trial testimony.
The witness rule was formerly codified in Kentucky Rule of Civil Procedure 43.09, which was deleted by the Kentucky Supreme Court in 2004 in favor of the Rule of Evidence. The Supreme Court in McAbee noted that the Civil Rule was discretionary with the trial court (“the court may exclude”), while the language in the Rule of Evidence is mandatory (“the court shall order witnesses excluded” if a party invokes the rule). The Court went so far as to say that KRE 615 “creates a strong presumption in favor of sequestration.” However, the Court in McAbee ultimately concluded that the trial court’s failure to exclude the expert under the witness rule was harmless error, and affirmed the case on other grounds.
Federal courts often cite the Advisory Committee notes to FRE 615, the federal corollary to and inspiration for KRE 615, which provide that the “essential” person language in subsection (C) of the federal rule was intended to apply to “an expert needed to advise counsel in the management of the litigation.” One federal court reasoned that there is “little, if any, reason for sequestering a witness who is to testify in an expert capacity only and not to the facts of the case.” See Morvant v. Construction Aggregates Corp. , 570 F.2d 626, 629 (6th Cir. 1978). The Sixth Circuit in Morvant reasoned that “[t]heoretically at least, the presence in the courtroom of an expert witness who does not testify to the facts of the case but rather gives his opinion based upon the testimony of others hardly seems suspect and will in most cases be beneficial, for he will be more likely to base his expert opinion on a more accurate understanding of the testimony as it evolves before the jury.” Id. at 629-630.
Of course, experts for a particular side in litigation are not immune from the temptation to harmonize their testimony, and allowing them to receive a preview of trial cross-examination of other experts by opposing counsel might be considered an unfair advantage. Thus, the holding in McAbee reasonably requires that Kentucky trial courts should take a narrower view of the exception to the witness rule for an expert claimed to be an “essential” person than that taken by many federal courts.
David Kramer is a Partner in the law firm of Dressman Benzinger LaVelle psc, with offices in Cincinnati, Ohio, Crestview Hills, Kentucky, and Louisville, Kentucky.
