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Eagle-Picher Industries Inc. v. Balbos8/29/1990
of car accident to appear as witness against the wrongdoer because of victim's physical and nervous condition).
The use of discretion in excluding the testimony of a material witness is critical in the case sub judice. A leading case on the use and abuse of discretion is Taliaferro v. State, 295 Md. 376, 456 A.2d 29(1983). There the defense sought to introduce the testimony of an alibi witness on the last day of trial. Because the defense did not disclose the witness's identity to the State until that day, the trial court excluded the proffered alibi evidence based upon a precursor of current Md. Rule 4-263(d)(3). The
defendant appealed, alleging that the trial court abused its discretion in refusing to permit the witness to testify. The Court of Appeals noted that whether the exclusion of alibi witness testimony was an abuse of discretion turned on the facts of the particular case. The court applied the principal relevant factors used by most courts to determine abuse of discretion:
(1) whether the disclosure violation was technical or substantial;
(2) the timing of the ultimate disclosure;
(3) the reason, if any, for the violation;
(4) the degree of prejudice to the parties respectively offering and opposing the evidence; and
(5) whether any resulting prejudice might be cured by a postponement and, if so, the overall desirability of a continuance.
Id. at 390-91, 456 A.2d 29. After weighing all these factors, the court held that because the defendant knew the identity and address of the witness, knew the date of the trial, had been asked by counsel about witnesses, and provided no justifying excuse for not disclosing the witness until the close of the State's case, the trial court had acted well within its discretion. Id. at 398, 456 A.2d 29.
The Taliaferro factors are somewhat instructive in our analysis of the trial court's rejection of the Ayer testimony. As the Taliaferro court noted, "Frequently these factors overlap. They do not lend themselves to a compartmental analysis." Id. at 391, 456 A.2d 29.
(1) Was the violation technical or substantial?
In discussing the difference between a mere technical disclosure violation and a substantial disclosure violation, the Taliaferro court cited State v. Silva, 118 R.I. 408, 374 A.2d 106(1977). Taliaferro, 295 Md. at 391, 456 A.2d 29. In Silva, the trial court excluded alibi testimony for lack of compliance with the Rhode Island rule's specificity requirements. The defendant had provided the name but not the
address of the alibi witness and had not stated precisely at which of two given locations he had been at the time of the offense. The appellate court held that the trial court abused its discretion because, even though the address and precise location had not been provided, there was substantial compliance with the letter and spirit of the rule.
Here, although Professor Ayer's name was not listed in the final pre-trial order, it was listed in the master pre-trial order, the appellants' final list of experts submitted to appellees' counsel on May 26, 1988, a letter to appellees' counsel dated August 1, 1988, and the voir dire list. Appellees' counsel, therefore, knew about the witness for discovery purposes and was only unaware of the witness for purposes of "begin[ning] their detailed preparation for the trial." Because the error was inadvertent and a result of a typographical error, and the deficiency in preparation t
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