Boaston: Written Expert Opinions Must be Produced or Excluded
By: Megan Patituce
In the recent Boaston decision, the Ohio Supreme Court has ended the dispute over the comprehensiveness required prior to expert opinion testimony. State v. Boastoni, Slip Opinion No. 2020-Ohio-1061 (Mar. 26, 2020). At issue in Boaston was expert testimony from the deputy coroner which had not been produced within her expert report.
Nineteen days prior to trial, defense counsel learned that the deputy coroner had opinions as to the time of death, which were based upon an analysis of stomach contents. Further, the deputy coroner had taken steps to match an injury on the deceased’s chin to a buckle on Boaston’s gloves.
Defense counsel requested a supplemental expert report, which the state declined to produce. Prior to trial, defense counsel moved to exclude the testimony as the state had failed to comply with Crim. R. 16(K). The trial court denied defense counsel’s motion.
The Ohio Supreme Court found that Crim. R. 16(K) was clear: the testimony should have been excluded. The failure to produce a written expert report “shall preclude the expert’s testimony at trial.” This is unambiguous. The Court went on to explain that the trial court is vested with the discretion to modify some requirements, such as the twenty-one-day deadline for production, but lacked the authority to admit undocumented expert testimony.
The Court held that the state violated Crim. R. 16(K) and the trial court erred in allowing the testimony that went beyond the written report that had been provided. The Court, however, went on to find this error to be harmless as Boaston was not deprived of a substantial right and a review of the remaining evidence was sufficient for a finding of guilt beyond a reasonable doubt. Although the harmless error strikes again, the Boaston decision is important in that it reaffirmed Crim. R. 16(K)’s express requirement that written expert opinions be produced if expert testimony is to be introduced.