Last week, a Virginia jury found former University of Virginia lacrosse player George Huguely guilty of murder, but found him not guilty of first-degree murder. I’m not at all surprised by the verdict, and my purpose in posting this follow-up is not to call attention to my original post on the subject; rather, one of my colleagues alerted me to an evidentiary issue in the trial, which is something that I haven’t heard discussion of in mainstream media coverage, and one that probably had a significant part in the outcome of the trial.

According to Tennessee criminal defense attorney Lee Davis (@LawyerTN), the trial judge substantially limited the testimony of the defense’s key expert witness, Dr. Ronald Uscinski, because of a mistake that Huguely’s defense team committed when they copied Dr. Uscinski on an email summarizing the testimony of the prosecution’s key expert. The judge ruled that Huguely’s attorneys violated Virginia’s “Rule on Witnesses.” Apparently the Commonwealth of Virginia doesn’t have their own version of the Federal Rules of Evidence, so they loosely follow the federal rules (and make their own rules up when they feel like it). Virginia’s so-called Rule on Witnesses is a variation of Rule 615 of the federal rules, which is designed to prevent trial witnesses who haven’t yet testified from changing their testimony because of testimony given prior to theirs. Usually Rule 615 is applied to fact witnesses—people who testify about what they saw or heard, which is relevant to the crime or issue at trial.

Expert witnesses, however, aren’t there to testify about facts, or what they saw or heard—their purpose is to provide the jury with scientific evidence that supports one side of the case or the other. Experts typically write reports prior to trial, and the reports are provided to the other side for both scrutiny and trial preparation, so it isn’t likely for an expert to change their testimony because it would undermine their credibility if they testified in a manner that was inconsistent with what they previously wrote.

Although my analysis means nil to Huguely at this point in time, it could be a solid foundation for him to appeal his conviction and get a new trial. Ordinarily evidentiary matters aren’t good bases for appeals (see, e.g., previous posts here & here) because of the incredible deference that appellate courts give to a trial judge’s discretion in whether to admit or exclude evidence, but in this circumstance the judge’s decision to exclude portions of Dr. Uscinski’s testimony may have deprived Huguely of a fair trial. If so, the judge’s evidentiary ruling becomes a constitutional question, or one of “structural error,” which garners much higher scrutiny from the appellate court.

This was precisely the situation in a fairly recent decision by the U.S. Supreme Court in which they unanimously reversed the death sentence of a South Carolina man who was convicted of murder after the trial court—on hearsay grounds—refused to allow him to introduce evidence that another person committed the crime. (Even Justice Alito let that guy off the hook!). When I worked for the Court of Appeals of Ohio I drafted a similar decision, which also went one step further and found the state evidentiary rule unconstitutional. The Ohio Supreme Court eventually disagreed as to the constitutional question, but our ruling, for the most part, remained intact.

I’m not intimately familiar with Virginia law, but if I were a member of Huguely’s defense team I would be looking to that line of cases for guidance, as well as considering a possible claim for ineffective assistance of counsel.