2.Request for Curative Instruction on Fairgrieve Cross-Examination

MR. STRANG: I have already addressed it and only one remains, which I did not submit in writing. It was an issue I raised briefly in chambers this morning, concerns the State's cross-examination of Dr. Fairgrieve. And the background is this, the State was pursuing what I thought was a perfectly appropriate line of cross-examination of Dr. Fairgrieve on the fact that he did not prepare a report.

In the main, Mr. Fallon's questions were unobjectionable and they were good cross-examination. One question, and it was the last question that he asked in this area, before moving on, but one of the questions, I thought, crossed the line. And I had the court reporter prepare just a very brief excerpt of that question and the answer only, which I will read. The question was:

Question: And that's so when the gentleman who happens to be on the other side of the prosecution by the Crown, so that they would have fair notice of exactly what opinions you were going to express so they would know what they were?

Answer: Yes.

I did not object at the time. I decided, at the time -- First of all, I was slow on the uptake. It seemed like it crossed a line to me. I wasn't as quick as I should have been in articulating, to myself, the reason that crossed the line. I did not object at the time.

Rather, at the next break, I raised the issue informally with Mr. Fallon. I think I probably even told him I was going to ask the court reporter to read back that testimony to me or prepare a short excerpt, because I could not remember exactly what Mr. Fallon had said, that had rubbed me wrong.

The court reporter did prepare the short excerpt I just read, a little later. I raised this informally in chambers, and I don't even remember when, but it was well after Dr. Fairgrieve was off the stand by that time. And the problem is, the suggestion that we did not give the State fair notice of Dr. Fairgrieve's opinion.

We did. We complied with Section 971.23 -- well, whatever the provision is that requires the defense to give notice of expert opinions. It's true that we didn't give a report, to the State, from Dr. Fairgrieve. But we're not required to do that under the discovery statute. That's one of two options.

We chose the second option, which was to provide a summary of it, his expert opinion and its basis. We also provided his curriculum vitae. The State objected to the adequacy of our notice. The Court directed us to provide some further, more specific notice of Dr. Fairgrieve's opinion. And we did that. Once we amended our notice of his opinion, there was no further complaint from the State. And I think our discovery obligation was met and, therefore, as a matter of law, there was fair notice of his opinion.

Now, again, the fact -- the mere fact that he didn't prepare a report is a fair subject for cross-examination. And the questions immediately preceding the question I quoted today, were unobjectionable, in my view. But I had no strategic reason for not objecting.

Indeed, I knew at the time it was a problem. If my -- if my manner of handling it was a waiver, then, it was a waiver without a reason, without a strategic choice, or a -- or a good -- a good reason on which I could defend my waiver. And the intention, as I told folks off the record, which doesn't count, I understand, was to seek a brief curative instruction, not make a terribly big deal out of it, but I thought it was worth a curative instruction. I still do.

At this point, I think the curative instruction should not refer to -- or need not refer to Dr. Fairgrieve, or even to the State. There's no need to scold at this point. A curative instruction could be that, you know, something to the effect that both parties provided adequate notice, as required by law, or fair notice as required by Wisconsin law, the opinions of their experts, wouldn't have to be anything fancier than that.

And I asked the Court to give, somewhere in the final instructions, a curative instruction along those lines. I also asked the Court forbid a State argument that it was not given fair notice of Dr. Fairgrieve's opinions. I think it was. I think we complied with the discovery statute in that respect.

MR. STRANG: Well, I do need to be heard in reply, because as I conceded, the general line of questioning, cross-examination, was appropriate. And if the questioning had stopped where Mr. Fallon says he meant to stop, or with the point he says he meant to make, it would have been appropriate. If this had stopped with, so you always write a report, this is the first time in your career you haven't written a report. Fine, unobjectionable.

This question went the next step. It went farther. It was, you know, by not writing a report, then, in essence, there is not fair notice of exactly what opinions you were going to express to the counsel for the other side, so that they would know what they were. And I won't reread this, I'm paraphrasing it, but I read verbatim, the final question. And that -- the implication that there was --

MR. STRANG: Sure.

Question: And here now I wish I had gotten the preceding question, but it was -- I think the preceding question probably was what Mr. Fallon said, which is, this is the first time you have not written a report, something like that.

So the question in issue begins:

Question: And that's so when the gentleman who happens to be on the other side of the prosecution by the Crown, so that they would have fair notice of exactly what opinions you were going to express so they would know what they were?

Answer: Yes.

I will give it to the Court. Now, did Mr. Fallon mean to do anything wrong? No, he was pursuing a fair line of questioning. He went one question too far in my view. It's a slip of the tongue. It happens in the heat of battle. Lord knows in cross-examination I have asked one question too many at various points. But this was objectionable and I missed it. I didn't make timely objection.