Texas Court of Criminal Appeals Overturns Mitigation Expert Strike

The Texas Court of Criminal Appeals overturned the punishment phase of a capital murder trial because the district court excluded the testimony of a criminal justice professor who would have testified that the defendant's responsibility was lessened and that he was less of a future danger because an older woman groomed him for a sexual relationship for approximately five years before the crime. It found that Dr. Donna Vandiver qualified as an expert on female sex offenders, that her testimony would assist the jury in determining Christian Olsen's moral responsibility for the crime and the likelihood that he would be a danger in the future, and that her testimony would have a tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. The erroneous exclusion of constitutionally relevant mitigating evidence offered by a defendant facing a possible death sentence requires reversal unless beyond a reasonable doubt it did not contribute to the punishment.
The district court thought that the opinion to be offered was psychological, and Vandiver admitted that she wasn't a psychologist. Vandiver's testimony was the best evidence that the defense had that Olsen shouldn't get a lethal injection.
I understand that one of Olsen's lawyers was Billy Carter. The error in the case seemed particularly well preserved.
Michael E. Keasler wrote the opinion for the CCA. Presiding Judge Sharon Keller concurred, explaining why she thought that this exclusion-of-evidence issue, normally not error of constitutional magnitude, was such in this case. Judge Lawrence E. Meyers dissented without opinion.
In short, it's easier to get a mitigation expert into a capital trial than it is other kinds of experts in other cases.
Thanks to CCA staffer Michael Falkenberg for correcting an error in an earlier edition of this post.

How and When to Challenge the Admissibility of an Expert's Opinion at Trial

An extremely good blog post on how to impeach an expert witness of the kind most lawyers will encounter- the somewhat credentialed person who no longer is fully engaged in his or her field, but whose business is, generally, limited to testifying at trials is here.
They don't talk about the appellate angle in attacking experts. Professional testifiers are often persuasive to juries and trial judges, but are much less impressive when judged on a cold record. I practice in southeast Texas. In the First, Ninth, and Fourteenth Courts of Appeals and in the Texas Supreme Court a personal injury plaintiff's expert is guilty until proven innocent, so defense counsel in such a case should practically always make a Daubert/Robinson challenge to the adversary's expert. In a sexually-violent-predator civil-commitment case, Judge Seiler will be very open to an attack on the defense expert, less so for his appellate court, the Ninth, in Beaumont, as I've written about elsewhere on this blog.

Fort Worth Holds Identification of Expert and Expertise Area Sufficient to Allow Testimony

A panel of Texas's Second Court of Appeals sitting in Fort Worth held through an opinion of Justice Lee Gabriel, joined by Justice Sue Walker and concurred in by Justice Lee Ann Dauphinot that identifications of  a peace officer as an expert and an affidavit by a witness of that expert witness's expertise was a sufficient disclosure of that expert and that expert's opinions to allow the expert witness to testify, notwithstanding Texas Rule of Civil Procedure 193.6.
It seems clear that the trial judge erred in asking if there were a written objection or motion to compel. The justices just appeared to think that the error was harmless. The practice tip is that, with the benefit of 20/20 hindsight, defense counsel should have filed an objection to the expert. What that objection likely would have gotten was the disclosure that should have been made in the first place.Cooper, Hensley, & Marshall's Texas Rules of Civil Procedure Annotated, 2010 ed. (Texas Annotated Code Series)