CRIMINAL PROCEDURE – Discovery – no duty to compel defendant’s expert to prepare report: Commonwealth v. David Nichols (SC 3/19/2009)

Commonwealth v. David Nichols
007-SC-000493-DG March 19, 2009
Opinion by Justice Cunningham; all sitting, all concur.

Prior to trial, Nichols moved the Circuit Court for clarification of his obligation under RCr 7.24. Specifically, Nichols argued that he should not be required to disclose the identity of his expert witness or provide a report of the expert’s expected testimony since the expert had not prepared any reports. The trial court entered an order stating that although Nichols was required to identify his expert, as long as the expert had not prepared a report, there was no obligation to generate one solely to satisfy the rules of discovery. On interlocutory appeal, the Court of Appeals affirmed the trial court’s ruling that the expert was not required to generate a report, but held on Nichols’ cross-appeal that the trial court abused its discretion by ordering Nichols to disclose the identity of the expert.

The Supreme Court reinstated the trial court’s order, holding that to require Nichols to prepare a report that would likely be used against him solely to comply with reciprocal discovery violated his rights under the Fifth, Sixth, and Fourteenth Amendments to the U.S. Constitution, as well as Section 11 of the Kentucky Constitution. The Supreme Court also held that the Court of Appeals was without jurisdiction to hear Nichols’ interlocutory cross-appeal since KRS 22A.020 only provides for interlocutory appeals by the Commonwealth. (Note: this opinion includes a concise history of the development of criminal discovery law in Kentucky.)