For a variety of reasons, I've spent some time recently looking at expert discovery in criminal cases. I thought I'd put together a short summary of the law. The discovery statutes impose identical obligations on the parties regarding their experts. Each side must give notice to the other of any expert witnesses that it “reasonably expects to call.” The witness must prepare, and the party must disclose, a “report of the results of any examinations or tests conducted by the expert.” The party must also disclose “the expert’s curriculum vitae, the expert’s opinion, and the underlying basis for that opinion.” This must be done “within a reasonable time prior to trial, as specified by the court.” G.S. 15A-903(a)(2) (state); G.S. 15A-905(c)(2) (defense). Several issues may arise regarding expert discovery. The first concerns timing. Often, a judge will enter a scheduling order mandating the exchange of expert discovery by a certain date. Absent such an order, what is a “reasonable time prior to trial”? The leading case is State v. Cook, 362 N.C. 285 (2008), a second-degree murder case arising out of an impaired driving accident. The state retained an expert to perform a retrograde analysis of the defendant’s blood alcohol content. The witness completed his report five weeks prior to trial, but the state only identified the expert and provided his CV five days (three working days) before trial, and did not provide his report until three days (one working day) prior to trial. The defendant sought a continuance based on [...]
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