(Just ask the CAV)

In last week’s opinion from the Supreme Court of Virginia, the Court reversed the Court of Appeals because of its harmless error analysis. 

The original issue concerned an attempted battle of the experts:

One side put on an expert witness who the other wanted to discredit. The defense had hoped to exclude the Commonwealth’s expert entirely, but their motion in limine was unsuccessful. At trial, the expert was thoroughly cross-examined. When the defense called their own expert, however, the trial court had (wrongly) determined that the expert couldn’t testify because they were called “merely to undermine the credibility” of the other side’s expert. In response, defense counsel countered that their witness was an expert in their own right and being called to address the substantive issues and to criticize the other side’s methodology.

What happened next? Defense counsel provided a proffer of the excluded witness’s testimony! This is an appellate lawyer’s dream: written motions, thoughtful arguments, a grumpy trial judge making the wrong call, and even a proffer. *Sigh* But my dream is a trial lawyer’s nightmare because it means that something important went wrong . . . so I apologize in advance to all of the litigators reading this with second-hand anxiety.

This particular proffer is extra-interesting because the trial judge denied the defense’s reasonable request to put the expert on the stand outside of the presence of the jury to preserve the record. Instead, the trial court only permitted counsel to submit a proffer without allowing the witness to be called. So trial counsel dutifully read off both the excluded expert’s credentials and a number of points about their expected testimony.

Note: this worked because trial counsel’s proffer included significant detail both about what would have been asked and what the expected answers would be. But it is always preferable to call the excluded witness and question them before the court reporter. In fact, trial counsel assigned error to the trial court refusing permission to do this, but the SCV didn’t reach this issue since it was reversing on other grounds. 

Harmless Error: Ultimately, much of this case revolved around the expert’s testimony (and, here, the identity of the perpetrator). On appeal, the CAV originally “assumed without deciding” that the trial court erred, but determined any error was harmless. Not so, says the Supreme Court.

The opinion first gives an excellent overview of how to conduct a harmless error analysis. As a refresher, there is one type of analysis for constitutional violations and another for errors that don’t impact constitutional rights—like in this case. 

Justice Russell explains that one of the trickiest parts of harmless error analysis is that an appellate court is essentially conducting its own fact-finding: did this error make a difference in the outcome or not? The majority opinion concludes that sometimes reasonable jurists might disagree. But in this case, per a 4-3 ruling, the trial court’s error was not harmless. Reversed!

Takeaways?

• Don’t forget to proffer! Those of you who heard me speak at the VTLA’s recent annual convention heard a lot about this already, but it’s so important. If your evidence is excluded, proffer it. If the judge won’t let you, object to that (it can be a great appeal issue when trial judges won’t permit you to proffer!).
• Second, don’t sleep on your harmless error analysis. Justice Russell’s opinion contains a lot of helpful information to use in your next appeal.

Questions? Another friend and excellent appellate lawyer, Matt McGuire, and I are speaking at the VACDL’s Spring Seminar. Come say hello!