December 19, 2016
The Kentucky Supreme Court has issued a new opinion further explaining what is required to exempt an expert witnesses from "the rule," KRE 615, requiring separation of witnesses during trial so that they cannot hear the testimony of other witnesses. McAbee v. Chapman, 2014-SC-555. In McAbee, defense counsel first invoked the rule. Defense counsel, however, wanted separation of lay witnesses only, not expert witnesses. The parties disagreed about whether the rule applies to experts. The trial court ultimately applied KRE 615(3), an exception for "essential witnesses," and allowed two defense experts to remain in the courtroom throughout the trial. The Supreme Court's opinion expands on a recent ruling, Spears v. Commonwealth, 448 S.W.3d 781 (Ky. 2014), in which it held that a trial court did not err in refusing to exempt an expert witness from the KRE 615 requirement for sequestration. The McAbee opinion explains that an expert can be exempt from separation under KRE 615(3), but only if the party can "show" that the expert is "not merely helpful," but "essential" to the presentation of the party's case. The Court held that the defendant did not make such a showing, but that the trial court's ruling exempting the defense experts from separation was harmless error.