Summary: A conviction for assault with a deadly weapon with intent to do bodily harm and assault causing serious bodily injury was vacated, and the case was remanded for a new trial.  The court ruled that defendant should have been allowed to have his Forensic Psychology Expert Witness  testify, which would have allowed defendant to present his insanity defense to the jury.

Facts: In U.S v. Ray (U.S. Court of Appeals for the Ninth Circuit), two defendants, Patrick Bacon and Daniel Ray, were convicted of assault with a deadly weapon.  Bacon and Ray were both jailed in Victorville Federal Prison in California when they coordinated a stabbing of multiple correctional officers.  Security cameras recorded the attacks.

After a grand jury indicted Bacon and Ray, they were sent to trial.  Prior to trial Bacon gave notice, pursuant to Federal Rule of Criminal Procedure 12.2, that he would put forth an insanity defense.  The government filed a motion in limine to preclude Bacon’s Forensic Psychology Expert Witness Dr. Karim from testifying.  Dr. Karim had opined in a report that Bacon suffered chronic mental illness throughout his life, that he was on a downward spiral, and as a result, it would be reasonable to conclude “with a high degree of clinical certainty” that he would have had difficulty understanding the nature of his actions at the time of the assault.

The new strain of coronavirus was officially named “COVID-19” on the February 11, 2020 by the World Health Organization (WHO).  Since that time, the transmission of the virus has altered virtually all aspects of public life.  This disruption may eventually lead to usual court, dispute resolution, and arbitration processes to become less practical because of public health measures put in place to contain the spread of the virus.

Because of the coronavirus, expert witnesses may be forced to testify by video conferencing.  This could likely be done at the deposition stage.  Although video taping of expert depositions is commonplace, it may become the rule rather than the exception to limit social interaction.  If the expert deposition will be videotaped, counsel should remind their expert about their facial expressions, and their tone.  It should also be noted that in this time of video posting, counsel should consider obtaining a protective order to prevent the video deposition from being posted on the Internet. See Paisley Park Enters. v. Uptown Prods., 54 F. Supp. 2d 347 (S.D. N.Y. 1999) (where the court ordered strict limits on the dissemination of the video deposition of musician Prince.)

Plaintiff filed suit against defendants related to an alleged injury while in prison.  Plaintiff hired an Ophthalmology Expert Witness to provide testimony.  Defendant filed a motion to exclude this expert witness testimony.  The court granted the motion in part and denied it in part.

Continue reading