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‘Side-switching’ doctrine tested in criminal case

A man who took his family hostage in a four-hour standoff with police could not prevent a court-appointed psychologist from “switching sides” and testifying for the commonwealth at his trial for abduction. Initially, the psychologist said the defendant was insane at the time of the standoff, but she later revised her findings and said he suffered from depression.

Over the defendant’s objection, the trial court let the prosecution call the psychologist as an expert witness.

The Court of Appeals assumed, but did not decide, that the doctrine to disqualify a flip-flopping expert could apply to criminal cases.

After two interviews, Dr. Alana Hollings said defendant Vernon Ray Chappelle was paranoid and delusional when he held his wife, their two children and a grandchild at gunpoint inside their home. She affirmed her findings in a written report, which was disclosed to the commonwealth, pursuant to statute.

Nearly two years later, after receiving Chappelle’s medical and psychiatric reports, Dr. Hollings decided the defendant was depressed but he had not been insane at the time of the incident. The prosecution asked her to testify at Chappelle’s trial on abduction and firearm charges.

Chappelle argued the “side-switching doctrine” barred the psychologist from being a prosecution witness. Under this doctrine, an expert can’t switch sides if it was “objectively reasonable” to believe the defendant had a confidential relationship with the expert and had disclosed privileged information.

Judge Rossie D. Alston said the defense lawyer’s simple assertion that Chappelle had disclosed non-specific confidential information did not meet his burden of proof. The panel recognized that a showing based on oral, not written, communications, might be tough. But Chappelle had a chance to cross-examine Dr. Hollings about their talks.

Under Va. Code § 19.2-169.5(E), information Chappelle disclosed to Dr. Hollings was protected by the lawyer-client privilege at least until he chose to pursue an insanity defense, but he still had to be specific about what confidences he had shared, Alston said in the court’s Aug. 20 opinion.

Finding no error, the appellate court affirmed Chappelle’s convictions in Chappelle v. Commonwealth.

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