In a recent opinion in a criminal case, Spears v. Commonwealth of KY, the Kentucky Supreme Court held that the rule on separation of witnesses, KRE 615, applies to expert witnesses, and that the party seeking an exemption from sequestration for an expert under KRE 615(3) bears the burden of making a showing that the expert’s presence is essential to furthering that party’s cause.
The Supreme Court’s decision, which is final and published at 448 S.W.3d 781 (Ky. 2014), appears to take a more restrictive view of the practice of allowing experts to sit in on the testimony of opposing experts than a decision of the Court of Appeals issued in August 2014, McAbee v. Chapman, that is currently pending in the Supreme Court on a motion for discretionary review.
The decision whether to enforce the witness rule lies within the sound discretion of the trial court, but a party seeking an exception to the rule for an expert should be prepared to make a showing how the expert’s presence would be beneficial (if not essential).
