I am Tom Freeland, a lawyer in Oxford, Mississippi. The picture in the header is my law office. I'm on Twitter as NMissC

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The Mississippi Supreme Court has a strange coda to its cases about Dr. Hayne

Folks will recall Dr. Hayne, the erstwhile pathologist who, among other things, testified in Tyler Edmonds case that he could tell from a bullet path how many hands were holding the gun used in a murder.

The sordid tale of Dr. Hayne’s autopsies in state criminal cases has been told more than once and even on film.

In the case that came before the court today, Gause v. State, from Pontotoc County, the question of Dr. Hayne’s qualification was almost-sort-of raised by defense counsel:

Mr. Sheldon: Judge, it’s my understanding that they’re going to attempt to call Dr. Steven Hayne. I guess I have an objection, or at least a request of voir dire of his qualifications prior to him being allowed to take the stand in front of the jury. We’d object to him, not only on discovery basis, but on the grounds that he is not a board certified pathologist. It’s my understanding that that’s what he would be here to give testimony to. I think that he is not the director of the state board there in Jackson; that there’s been some serious questions as to his, I guess his qualifications to serve as an expert witness in recent years from the evidence in case of others and would object to him being a witness on those grounds.

The court: Your objection will be overruled, Mr. Shelton. The Supreme Court of the state has ruled that Dr. Hayne is perfectly qualified to testify as a pathologist. I don’t know where this nonsense got started about him not being qualified to serve or to testify as a pathologist. Tyler Edmond[s]’s case never suggests that. As a matter of fact, that’s where they said he was qualified.

Later, when given what he had asked for– the opportunity to voir dire (that is, question) Dr. Hayne about his qualifications, Mr. Sheldon failed to do so, in this exchange:

The court: Counsel, excuse me just one moment. You’ve tendered as an expert. If is, [sic] do you have questions of voir dire?

Mr. Sheldon: No, Your Honor. It’s my understanding that the court has already ruled on that.

The court: All right. Very well. Mr. Farris: That’s exactly what I was functioning on. The court: You may proceed to question him as an expert.

Judge Chandler’s majority opinion resolves all this in a very peculiar way:

[T]he trial court correctly found that Edmonds had declared Dr. Hayne qualified to testify as a forensic pathologist in the courts of this state. After the State elicited testimony from Dr. Hayne that established his education and work history, the trial court expressly afforded Gause an opportunity to voir dire Dr. Hayne as to his qualifications. However, Gause refused on the ground that his understanding of the court’s earlier ruling was that voir dire would not be permitted. Instead, Gause either could have taken advantage of the trial court’s offer of voir dire, or asked the trial court to clarify its earlier ruling. As in Nelson, Gause was given, but declined, the opportunity to voir dire Dr. Hayne. Therefore, this assignment of error is without merit. Moreover, on the basis of this Court’s holding in Edmonds, the trial court did not err by accepting Dr. Hayne as an expert in the field of forensic pathology. See Edmonds, 955 So. 2d at 792.

The opinion twice says that Edmonds had held that Dr. Hane is qualified in Mississippi as a forensic pathologist.  What this seems to be saying is that, thanks to the statement (not holding– the holding is that Dr. Hayne should not have been allowed to express the opinion he expressed) in Edmonds that Hayne was qualified as a pathologist, Mississippi courts forever more were bound to accept him as such!

Fortunately, Justice Kitchens, in a concurrence joined by Waller, Carlson, Dickinson, Randolph, Lamar and Pierce, straightened this out:

Given the equivocal and inarticulate manner in which defense counsel sought, outside the jury’s presence, to prevent Dr. Steven Hayne’s testifying as an expert witness, it cannot be said that the trial judge was in error for not having sustained the extremely inartful objection, even though the judge apparently based his ruling on an understanding that this Court, in an entirely different and unrelated case, “. . . has ruled that Dr. Hayne is perfectly qualified to testify as a pathologist.” While it is true that this Court did make such an observation in one case, that should not be taken as eternal, nonexpiring judicial anointment of Dr. Hayne as an expert pathologist for all of time and in every case in which he might thereafter be tendered to offer expert testimony in accordance with Mississippi Rule of Evidence 702. “[I]t would be absurd to conclude that one can become an expert simply by accumulating experience in testifying.” Thomas J. Kline, Inc. v. Lorillard, Inc., 878 F.2d 791, 800 (4th Cir. 1989). See also Tokio Marine & Fire Ins. Co. v. Grove Mfg. Co., 958 F.2d 1169, 1175 n.3 (1st Cir. 1992) (extensive experience as an expert witness “is not an automatic qualification guaranteeing admission of expert testimony”).

¶36. Notwithstanding this Court’s recognition of Dr. Hayne’s qualifications as an expert as they appeared in the record before this Court in Edmonds v. State, 955 So. 2d 787 (Miss. 2007), this witness was not thereby awarded lifetime certification as an expert in the field of pathology, or in the subspecialty of forensic pathology. Rather, each and every time that he is tendered as an expert, his credentials must be proven anew, if not stipulated by all parties, and the party or parties adverse to the litigant sponsoring Dr. Hayne, and any other proposed expert tendered by a litigant, must be given the opportunity to voir dire (in this context, cross-examine) him on his proffered qualifications as presented through the direct examination by the sponsoring party. This in-court process must have been completed before the trial judge renders a decision, in the presence of the jury, on the question of whether the witness may testify as an expert.

With seven votes clearly stating that Hayne– like any other expert– has to qualify in each case in which he is tendered, one would hope that will stop the state from arguing in the future his qualifications are established for all time.  But one’s hopes are often dashed.

Oh, and this isn’t entirely an academic question– Dr. Hayne is still testifying as an expert, and did so in a case tried as recently as last week, and his testimony plays an important part in another case decided  on this week’s list.





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