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Editor:

I am grateful for Dr. Gutheil's trenchant summary¹ of a key ethics question arising from my original case²—namely, on what basis the judge decided not to sanction the deceitful expert. On reviewing the case documentation, I discovered that attorneys for the defendant had also submitted a second motion in limine with further argument to exclude the expert (anonymized transcript follows). Defendant's Second Motion In Limine or to Strike Motion In Limine to Preclude Testimony of XX, MDThe Defendant, by and through undersigned counsel, pursuant to State DD.R.Crim.P. 3.190(a), hereby moves the Court to enter its Order precluding the State from making reference in opening statement or closing argument to, or seeking admission in evidence of, any testimony by XX, M.D. In support thereof, the Defendant states:

1. The State has listed as a witness XX, M.D., to testify in response to one aspect of the defense of temporary insanity raised in this case.

2. In reviewing certain materials pertinent to Dr. XX's involvement in this case, his billing records include an entry stating that he had attended by telephone the telephonic deposition of David Menkes, M.D., Ph.D., taken by the State on October 23, 2003. See Exhibit “A,” attached hereto.

3. During Dr. Menkes' deposition, those present, either in person or by telephone, were asked to identify themselves. See Exhibit “B,” attached hereto, at 5‐7 (excerpt of portion 2 of Dr. Menkes' deposition). The individuals who identified themselves or otherwise were identified at that time were Mrs. AA and Mrs. BB, counsel for the State, Mr. CC, counsel for the Defendant, the court reporter and the witness. Dr. XX failed to state his presence at that time or at any other time during Dr. Menkes' deposition, and the fact that he was listening on the telephone was not in any other manner disclosed to all parties to the telephonic deposition, including by counsel for the State.

4. Dr. XX was not entitled to attend and be present during the deposition of another witness in this case under State DD.R.Crim.P. 3.220(h) and R.Civ.P. 1.310. See also, Palm Beach Newspapers, Inc. v. Burk, 504 So.2d 378, 381‐82 (State DD 1987) (criminal discovery depositions are not open to attendance by the public).

5. The surreptitious eavesdropping by Dr. XX on the deposition of Dr. Menkes violates §90.616, State DD. Stat. (2003), the rule of sequestration of witnesses, in that the rule provides for the exclusion of witnesses from hearing the testimony of other witnesses, on request of a party, except under circumstances not applicable to Dr. XX. Furthermore, the failure of the State and of Dr. XX to indicate his presence prevented counsel for the Defendant from invoking §90.616, State DD Stat. (2003), to exclude Dr. XX from applying to the Court for relief.

6. The surreptitious eavesdropping by Dr. XX during the deposition of Dr. Menkes was accomplished with his knowing involvement, the knowing involvement of the State and, as acknowledged by the State during proceedings before the Court on February 3, 2004, was affirmatively accomplished by the conduct of the State.

7. Such surreptitious, deceptive conduct and concealment further potentially implicates Rules 4‐8.4(c) and (d) and 4‐3.4 of the Rules Regulating the State DD Bar. The failure to disclose Dr. XX's eavesdropping served no purpose other than to deceive the Defendant, her counsel and the deponent.

8. By this motion, the Defendant further reasserts the grounds for the same relief asserted in Defendant's Motion in Limine to Preclude Testimony of XX, M.D., served on January 30, 2004.

• American Academy of Psychiatry and the Law