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Criminal Practice – Discovery – State’s Late-Noticed Expert – Defendant’s Expert Report Change

Holding: Just before jury selection, defendant provided the state with his expert’s final report, which differed significantly from his original report; therefore, the state could call a new expert to rebut the defense expert’s final report.

We find no error in defendant’s conviction of first-degree murder.

The state’s new expert was originally called only to testify at the voir dire examination of the defense expert. Then, the trial court denied the state’s motion in limine to exclude the defense expert’s testimony concerning the use of qualitative electroencephalograph data to create topographical “brain maps” reflecting the comparative cortical activity, which the defense argued can provide diagnostic value in identifying relative brain functioning impairment.

At that point, the state moved to admit its new expert as a rebuttal witness at trial. Since defendant did not move to continue the trial or request more time to prepare, and since defendant had eight days to prepare – including four when no court was held – the trial court did not abuse its discretion in allowing the state’s new expert’s limited rebuttal testimony.

State v. Jackson (Lawyers Weekly No. 011-070-18, 20 pp.) (Rick Elmore, J.) Appealed from Lee County Superior Court (Charles Gilchrist, J.) Derrick Mertz for the state; Jarvis John Edgerton IV for defendant. N.C. App.


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