On December 13, 2008, Christine Novak's body was found severely
charred after a fire at her home in Narrowsburg, New
York. There was no identifiable forensic evidence due to the
intensity of the fire. Paul Novak, her husband, was a likely
suspect. He was working as an EMT in New York City and
was recently separated from Christine. But without forensic
evidence, there was no way to connect Paul to the crime. During
the investigation, Paul's girlfriend, Michelle LaFrance, provided
him with an alibi.
In April 2012, Michelle, now estranged from Paul,
called New York State Police and recanted her alibi and described
details of Paul's murder of Christine, including her
role. Michelle also informed police of another participant in
the murder, Scott Sherwood, also a New York City EMT employee.
On October 24, 2012, Paul was indicted for murder in
the first and second degree of his wife, arson, burglary, larceny
and insurance fraud. Scott was also indicted and charged with
murder in the second degree, arson and burglary, arising out
of the same events. Without Scott's testimony, it would be difficult
to persuade a jury to convict Paul. In exchange for his
testimony against Paul, the prosecutor offered Scott to plead
guilty to conspiracy to commit murder with a sentence of
three to twelve years and a favorable letter to the Department
of Corrections in support of early release. The day before
Paul's trial, Scott pled. Obtaining Scott's testimony was not the
only obstacle for the prosecutors. Scott was a licensed, working
paramedic. He also had a long history of mental illness
including depression, anxiety and bipolar disorder. Scott was
taking psychotropic medications to treat his mental illness.
Paul's best defense was to discredit Scott's testimony. Paul's
counsel requested the Court to allow an expert psychiatrist
to observe Scott's testimony and assist the defense in crossexamination
of Scott and to testify as to Scott's veracity and
vulnerability in light of his mental illness and medication regime.
The defense argued that the jury had a right to know
and understand Scott's mental illnesses and the effect it might
have on his testimony and recorded confession.
The Law of Evidence
As will be discussed, the concept of excluding one witness
during the testimony of another witness, often referred
to as sequestration, has a long history dating back to biblical
times. Its purpose is to prevent a witness from shaping his or
her own testimony around the testimony of other witnesses,
which would taint the truth-seeking process. The Book of
Daniel tells the story of Susanna, a beautiful woman who was
falsely accused of adultery by two elders who desired her. The
elders agreed to recant their accusations if Susanna would
have sex with them. She refused. Daniel proposed that the
elders be questioned separately. Each one provided a different
description of the tree where the event occurred. Susanna
was found innocent and the two elders with the inconsistent
stories were put to death.
Before turning to the Novak case, it is useful to see how
the issue of witness sequestration is addressed in federal court.
Rule 615, Fed. R. Civ. P., provides that a Court "must" exclude
witnesses at a party's request. The exceptions to the Rule cover
a party or a corporate representative and the broad category of
other persons "whose presence a party shows to be essential to
presenting the party's claim or defense. . . ." Rule 615(c). Federal
courts have held that it may be reversible error for a trial
court to exclude one side's expert while the other side's expert
is testifying where the expert's assistance is need to develop
In New York, a jury found a mother's boyfriend guilty
of brutally murdering her twenty month old child,. On appeal,
the boyfriend claimed inter alia that the trial court violated
his Sixth Amendment right to a public trial by excluding
his new [i.e. not the mother of the murdered child] girlfriend
from the courtroom where there was no certainty that she
would be called as a witness. Both New York's intermediate
appellate court and the highest court unanimously affirmed
the trial court's decision. The boyfriend brought a federal
habeas petition attacking the conviction on the ground that
the exclusion of the new girlfriend violated the Sixth Amendment's
promise of a public trial. Federal habeas relief requires
a showing that the state court's decision was "contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court". The
federal court found the New York's exclusion of the girlfriend
who was a potential witness did not contravene Sixth Amendment
One could argue that in criminal cases a defendant's
testimony could be tailored by observing the testimony of the prosecution witnesses but no court has sanctioned the exclusion
of the accused from his own trial.
But, if the defendant elects to take the witness stand,
may a prosecutor comment in summation on the defendant's
ability to shape his testimony by hearing the testimony of others?
In a 7-2 decision authored by Justice Scalia, the U.S.
Supreme Court, held that it was not a denial of the defendant's
Constitutional rights for the prosecutor to allude, during summation,
to the possibility that the defendant's testimony was
tainted after hearing the prosecutor's witness.
"In sum, we see no reason to depart from the practice
of treating testifying defendants the same as other witnesses.
A witness's ability to hear prior testimony and to tailor his account
accordingly, and the threat that ability presents to the
integrity of the trial, are no different when it is the defendant
doing the listening. Allowing comment upon the fact that a
defendant's presence in the courtroom provides him a unique
opportunity to tailor his testimony is appropriate and indeed,
given the inability to sequester the defendant, sometimes essential
to the central function of the trial, which is to discover
New York has not adopted the Federal Rules of Evidence,
nor the principles embodied in Rule 615. However,
New York's highest court agrees with the Federal Rules of Evidence
that exclusion of expert witnesses is generally not appropriate
and reversed a conviction where a defense counsel was
not permitted to talk to his own witness about possible lines of
cross-examination of the prosecutor's expert unless he agreed
not to call his own expert in rebuttal.
The New York Court of Appeals has held that excluding
a witness from the courtroom during the examination and testimony
of other witnesses is at the discretion of the court but
suggested that in a criminal case, particularly a capital case, the
exclusion of fact witnesses ought to be as a matter of course
. There is, however, a possibility of abuse where, for example,
a prosecutor or defense counsel loads up the names of
potential witnesses with no intention of calling the individuals
as witnesses but, instead, for the purpose of keeping them out
of the courtroom.
In Paul Novak's case the question before Judge Rank
J. LaBuda was whether the court should allow an expert psychiatrist
to observe the testimony of a lay witness, Scott Sherwood,
in order to assist counsel in cross-examination and then
to testify discrediting Scott due to mental illness and the effects
of his medication. The defense argued that the psychiatrist's
testimony could make the difference between a jury finding
the defendant guilty or not guilty.
In the trial of alleged cold war double agent Alger Hiss,
the Court allowed a Harvard psychiatrist Carl Binger to testify
as to the mental status and credibility of the government's
principal witness based only on trial observations and writings
. Defense attorney Claude Cross asked "What is your opinion,
Dr. Binger, of the mental condition of Mr. Chambers?"
He replied "I think Mr. Chambers is suffering from a condition
known as psychopathic personality, which is a disorder
of character, of which the outstanding features are behavior of
what we call an amoral or an asocial and delinquent nature."
The Court in Paul Novak's case allowed the psychiatrist
to observe Scott's testimony for the purpose of assisting
defense counsel with cross-examination and allowed the psychiatrist
to testify as to generalities of the mental illnesses but
not to determine Scott's mental status. Unlike the Alger Hiss
trial, no testimony would be allowed as to Scott's mental condition
or credibility. The Court in the Novak case stated that
all credibility determinations would be solely for the jury to
decide. While this author declines to weigh in on the outcome
of any appeal in the Novak case, allowing an expert to be present
during the testimony of another expert seems to be well
within the mainstream. Because the credibility of witnesses
is uniquely within the province of a jury, it is no surprise that
a court would not allow an expert to opine on the subject.
Further, a mental diagnosis from observations solely on a witnesses
stand would appear to have a low probative value and a
high danger of unfair prejudice.