August 20, 2013:
The Virginia Court of Appeals upheld a conviction of the Circuit Court of the City of Portsmouth on multiple counts of abduction and use of a firearm in the commission of a felony. On appeal, appellant argued that the trial court erred in allowing Dr. Alana Hollings to testify as an expert witness for the Commonwealth. Appellant posited that the side-witching doctrine barred her testimony, as he had prior confidential relationship with the doctor and disclosed privileged information. Without reaching the issue of side-switching, the Court of Appeals held that appellant has failed to prove he disclosed any confidential or privileged information to Dr. Hollings.
On the date of the incident, appellant parked his car in front of his driveway, blocking his wife’s car from getting out. He then produced a gun and forced his wife, their two children and one grandchild back into the house. A four hour stand-off with police ensued. The wife and children were able to escape and appellant was subsequently arrested. Dr. Nelson was appointed by the court to assess the competency of appellant to stand trial and evaluate his sanity at the time of the offense. He found appellant competent to stand trial and depressed, but not insane, at the time of the crime. Dr. Hollings was appointed for a second opinion. After several meetings with appellant, she concluded that appellant was insane at the time of the incident.
Two years later, Dr. Hollings was given additional information regarding appellant’s medical and psychiatric evaluations around the time of the incident. Dr. Hollings, of her own volition, alerted the court that she had changed her opinion, and believed that appellant was not insane at the time of the crime. Appellant filed a motion in limine to bar her testimony based on side-switching. Dr. Hollings testified that she had explained the limits of confidentiality to appellant prior to their discussions, as she had been appointed by the court. The trial court rejected appellant’s motion.
The Virginia Court of Appeals noted that the side-switching doctrine has never been applied to a criminal case. Nevertheless, without deciding the issue, the court turned to the two-part test adopted by the Virginia Supreme Court in Turner v. Thiel regarding disqualification of expert witnesses. The court must examine whether it was objectively reasonable for the party seeking disqualification to believe that a confidential relationship existed, and was any confidential or privileged information disclosed to the expert? The party seeking disqualification bears the burden of proof.
Though appellant asserts that his attorney had discussions with Dr. Hollings that he might have had with his own expert, including trial approaches, appellant offers no specific evidence to support this claim. While the court recognized that this may at times be difficult to prove, appellant had the opportunity to question Dr. Hollings at trial regarding any confidential information she may have received, but declined to do so. Assuming, without deciding, that the side-switching doctrine was applicable to criminal cases, the court held that appellant failed to meet his burden that Dr. Hollings was provided with confidential or privileged information, thus disqualifying her as an expert witness for the Commonwealth.
 Turner v. Thiel, 262 Va. 597, 601, 553 S.E.2d 765, 768 (2001).