Defense Expert Not Permitted to Appear Virtually, Resulting In The Loss Of Defendant’s Counter Expert To The State
Appellate Docket No.: A-1592
Decided October 3, 2024
Submitted by New Jersey Criminal Lawyer, Jeffrey Hark
In a recent published opinion, the Appellate Division of New Jersey affirmed the denial of a request from Defendant’s expert to appear virtually for the trial, despite the expert being unable to appear due to severe medical conditions.
In State v. Lansing, in 2021, a grand jury indicted defendant, charging him with: (1) firs tdegree murder, N.J.S.A. 2C:11-3(a)(1); (2) second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1); (3) second-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5(b)(1); (4) second degree possession of a handgun by a certain person, N.J.S.A. 2C:39-7(b)(a); and (5) fourth-degree possession of hollow nose bullets, N.J.S.A. 2C:39- 3(f)(1).
The charges arise from a shooting death on a Morristown street in the early morning hours of August 18, 2021. Investigators recovered video footage from the morning of the shooting. During its case-in-chief, the State intends to present a reconstruction of the shooting using the video footage to identify defendant as the shooter. To create the reconstruction, the State retained an expert in photogrammetry, a scientific field involving the use of photography in surveying and mapping to measure the distance between objects.
Defendant subsequently retained an expert who specializes in forensic video analysis to review the report of the State’s expert, issue a report, and testify at an Olenowski hearing challenging the admissibility and reliability of the State’s expert’s report, and at trial, if necessary. Defendant’s expert spent more than forty hours reviewing discovery. At the time the trial court issued the order under appeal, he had not issued a report.
Before he was retained, defendant’s expert informed defendant’s counsel that he would have to testify virtually at any evidentiary hearing or trial because he has a heart condition, was recovering from surgery, and is the primary caregiver for his seriously ill spouse. Accordingly, in August 2023, defendant moved for leave to have his expert testify remotely.
In support of the motion, defendant submitted an affidavit from his counsel stating that the expert suffers from atrial fibrillation and at the time of the application was recovering from hernia surgery. According to the affidavit, the expert is also the sole caregiver for his spouse, who has undergone chemotherapy, multiple surgeries, and other treatments for cancer and is limited in performing her daily life functions. The expert assists his spouse with all of her daily activities, preparing a six-meal-per-day regimen to meet her dietary needs, ensuring her physical safety, and dispensing her medications. Due to his spouse’s immunocompromised state, the expert will not risk exposure to viruses, including COVID-19.
The State opposed the motion. The trial court denied the defendant’s expert’s request to appear virtually. The Court indicated that while this testimony was important to combat the State’s expert witness, the highly technical and significantly disputed testimony would be difficult for a jury to determine credibility when one expert is virtual and the other is in person.
The Defendant appealed the issue interlocutory. The Appellate Division affirmed, finding the trial court did not abuse it’s discretion and analyzed the appropriate factors in the denial of the Defendant’s expert to appear virtually.
This case is important to understand that Defendant’s attorneys should have known that hiring an expert who is unavailable to appear in person for a trial will most likely be precluded from testifying and being able to submit a report to the jury. Only under rare circumstances, such as the COVID-19 crisis, and other limited circumstances can someone appear virtually to testify at a trial. Ensure that you hire experienced attorneys who are aware of all the procedural requirements for Court to avoid having an expert thrown out of a case after spending 40 hours preparing for the case.
If you have been charged with any criminal charge or disorderly persons offense, contact an experienced criminal defense attorney today. We defend first degree crime, second degree crime, third degree crime, fourth degree crime, disorderly persons offense, municipal ordinance violation, or traffic ticket / DUI/DWI, At Hark & Hark, we represent clients in Superior Court and municipal court for criminal matters like the present case. We vigorously defend our clients by fighting to ensure prosecutors, police, and even judges follow the law.
We offer payment plan options to clients financially incapable of providing full payment upfront. If you are facing criminal charges similar to this circumstance, please call us to discuss the matter. At Hark & Hark, we represent clients for any case in any county in New Jersey including Atlantic County, Bergen County, Burlington County, Camden County, Cape May County, Cumberland County, Essex County, Gloucester County, Hudson County, Hunterdon County, Mercer County, Middlesex County, Monmouth County, Morris County, Ocean County, Passaic County, Salem County, Somerset County, Sussex County, Union County, and Warren County and any town including Audubon, Gloucester City, Oaklyn, Audubon Park, Gloucester Township, Pennsauken, Barrington ,Haddon Heights ,Pine Hill ,Bellmawr ,Haddon Township , Pine Valley, Berlin Borough, Haddonfield, Runnemede, Berlin Township, Hi-Nella, Somerdale, Brooklawn, Laurel Springs, Stratford, Camden, Lawnside, Voorhees, Cherry Hill, Lindenwold, Waterford, Chesilhurst, Magnolia, Winslow, Clementon, Merchantville, Woodlynne, Collingswood, Mt. Ephraim, and Gibbsboro.
