JAMES WESLEY ROSS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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James Wesley Ross challenged his criminal conviction on appeal, arguing that expert psychiatric testimony was erroneously excluded at trial because the psychiatrist's opinion was based partly on Ross's own statements. The Florida Supreme Court's decision in Jones v. State resolved this precise issue, requiring reversal and a new trial.
The court reversed and remanded for a new trial, holding that the Supreme Court's decision in Jones v. State directly governs this case and requires a new trial. The court rejected the State's retroactivity argument, finding that Jones did not alter existing law but merely clarified constitutional requirements applicable to this direct appeal.
[1] A psychiatrist's testimony is not erroneously excluded when the opinion is based in part on personal history related by the defendant.
[2] A court considering a matter as if on direct appeal is not bound by the state's argument that a new precedent should not apply retroactively.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“a physician cannot diagnose his patient's ills without communicating with him. The best available mechanism for testing whether the defendant has misled the psychiatrist is intensive cross examination.”
Establishes that psychiatrist testimony based on defendant's statements is admissible and the proper way to test reliability is through cross-examination, not exclusion.
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Join FLexlaw to unlock all legal intelligenceRoss was convicted at trial. During the trial, testimony from a psychiatrist was excluded because the psychiatrist had based his opinion in part on pe…
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MANN, Chief Judge.
Earlier1 we determined that Ross was denied due process in his appeal to this court in that his appointed counsel had failed to argue a question, as Anders v. California2 requires. We asked the parties to brief the question whether testimony of a psychiatrist was erroneously excluded at Ross’s trial because he acknowledged having based his opinion in part on personal history related by Ross. Since our earlier opinion the Supreme Court of Florida has decided this precise question in Jones v. State.3 We asked counsel to explain why Jones did not govern this case. No reason is shown, and accordingly we reverse and remand for a new trial.
The State responds that Jones was not intended to apply retroactively. This reasoning is fallacious. We have the matter before us now as if it were on direct appeal. We are considering the question as we would have considered it if the constitutional duty of appointed counsel had been respected in the beginning. In deciding Jones the Supreme Court did not alter any existing pattern of the law and certainly did not presume to act in a legislative capacity. Therefore everything that the State’s memorandum says is irrelevant to the question before us. That question having been answered by our Supreme Court we are obligated to mandate a new trial for Ross.
On reflection, it is obvious, as Wigmore long ago pointed out, in sections of his treatise cited in our earlier opinion, that a physician cannot diagnose his patient’s ills without communicating with him. The best available mechanism for testing whether the defendant has misled the psychiatrist is intensive cross examination. To require the defendant himself to take the stand and testify to facts which were told to the psychiatrist raises obvious problems with the Fifth Amendment, not to mention questions of admissibility on general principles of the law of evidence.
Reversed and remanded for a new trial.
HOBSON and GRIMES, JJ., concur. . Ross v. State, Fla.App.2d 1973, 287 So. 2d 372.
. 1967, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493.
.Fla.1974, 289 So. 2d 725.
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Simonds v. State, 304 So. 2d 525 (Fla. 2d DCA 1974)…admissible in evidence on an issue of sanity or insanity. . . . (289 So. 2d 725, 729). Here the appellant was denied the opportunity of presenting expert testimony as to the defense of insanity. As this court noted in Ross v. State, Fla.App. 1974, 294 So. 2d 663, the best available mechanism for testing whether defendant misled the psychiatrist is intensive cross-examination. We have considered the several other points raised by appellant, including the contention that he should have been discharged under…
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Hungerford v. Delmar C. Mathews, 511 So. 2d 1127 (Fla. 4th DCA 1987)…rida Evidence, § 704.1, at 411-412 (2d ed. 1984) See Gomez v. Couvertier, 409 So. 2d 1174 (Fla. 3d DCA 1982). An expert can base his opinion on a patient’s medical history record. United States v. Harper, 460 F. 2d 705 (5th Cir.1972); Ross v. State, 294 So. 2d 663 (Fla. 2d DCA), cert. denied, 303 So. 2d 645 (Fla.1974). Furthermore, an expert can testify about information offered by a third party as to the patient. Bender v. State, 472 So. 2d 1370 (Fla. 3d DCA 1985). We, therefore, hold, under all the facts a…
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In re Adoption OF Minor Child. Petition of Nancy M. Church, 313 So. 2d 774 (Fla. 4th DCA 1975)…ely and improperly excluded.1 1 Fla.Jur., Adoption, sec. 20; Marine Exploration Company, Inc. v. McCoy, Fla.App. [*775] 1975, 308 So. 2d 43; Steiger v. Massachusetts Casualty Insurance Co., Fla.App.1971, 253 So. 2d 882; Ross v. State, Fla.App. 1974, 294 So. 2d 663; Jones v. State, Fla.1974, 289 So. 2d 725. The. appellant having failed to clearly demonstrate reversible error the final judgment of adoption is affirmed.2 CROSS, MAGER, and DOWNEY, JJ., concur. . On motion for rehearing from the final judgment,…
Authorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- Jones v. State, 289 So. 2d 725 (Fla. 1974)
- Ross v. State, 287 So. 2d 372 (Fla. 2d DCA 1973)