State v. Crabtree
In State v. Crabtree, 198 W. Va. 620, 482 S.E.2d 605 (1996), the Court discussed at length the right of a criminal defendant to inspect tangible objects that are material to the preparation of his defense.
The Court indicated that a criminal defendant clearly has the right to make such inspections and also has the right to have his own expert conduct such examination.
However, in Syllabus Point 8 of State v. Crabtree, id., the Court stated:
A criminal defendant who desires to analyze an article or substance in the possession or control of the State under Rule 16 of the West Virginia Rules of Criminal Procedure should file a motion setting forth the circumstances of the proposed analysis, the identity of the expert who will conduct such analysis, and the expert's qualifications and scientific background. The trial court may then, in its discretion, provide for appropriate safeguards, including, where necessary, the performance of such tests at the State laboratory under the supervision of the State's analyst.
In the body of State v. Crabtree, id., the Court indicated that while a criminal defendant has the right to have his expert examine an article in the State's possession which might advance his defense, the Court also recognized that the trial court has the right to control the examination process.
The trial court's right to control the process is necessary to safeguard the integrity of the article examined as evidence, and this Court believes that a trial court must have some knowledge of who a proposed expert is, what his scientific background is, and what tests he expects to perform in order to frame controls over the examination process to insure that the integrity of the evidence is maintained.
The Court addressed hearsay evidence inadvertently introduced during testimony.
The defendant had argued that the trial court erred in admitting the testimony of one individual regarding another individual's corroborating statement to a third individual regarding the time of the defendant's arrival at a home on the night of the alleged crime. 198 W.Va. at 626, 482 S.E.2d at 611.
The Court explained:
While the defendant is correct in his assertion that neither Rule 805 nor Rule 806 allows inadmissible hearsay within hearsay for impeachment purposes, see State v. Sutphin, 195 W.Va. 551, 466 S.E.2d 402 (1995), we hold that in this instance the error was forfeited under the "invited error" doctrine. In other words, we find the hearsay evidence was either invited by or in response to questions by defense counsel. Where inadmissible evidence is introduced solely as a result of the rigorous examination of the complaining party, the error is deemed invited error. State v. Hanson, 181 W.Va. 353, 363, 382 S.E.2d 547, 557 (1989); Fluharty v. Wimbush, 172 W.Va. 134, 137, 304 S.E.2d 39, 42 (1983).
(198 W.Va. at 626-27, 482 S.E.2d at 611-12.)
The Court discussed "waiver" in the criminal context and indicated that a waiver occurs where there is an intentional relinquishment or abandonment of a known right.
The Court has also indicated that a waiver may be presumed in a criminal context where a defendant intelligently and knowingly waives, or, in effect, abandons and relinquishes, any contention or ground for relief which he could have advanced on direct appeal.
The Court made the following observations:
"Invited error" is a cardinal rule of appellate review applied to a wide range of conduct. It is a branch of the doctrine of waiver which prevents a party from inducing an inappropriate or erroneous response and then later seeking to profit from that error. The idea of invited error is not to legitimize the error but to protect principles underlying notions of judicial economy and integrity by allocating appropriate responsibility for the inducement of error. Having induced an error, a party in a normal case may not at a later stage of the trial use the error to set aside its immediate and adverse consequences.