I wrote in September 2015 that the court of appeals’ view of the admissibility of retrograde extrapolation under Daubert did not look much different from its take on the admissibility of that evidence under old Rule 702. As of yesterday, it does. The court of appeals in State v. Babich, __ N.C. App. __ (2017), changed the green light for retrograde extrapolation testimony in DWI cases to yellow.
Evidence

Evidence Rule 803(8) and the Admissibility of Police Reports
Suppose that a law enforcement officer testifies for the State in a criminal case and is unable to remember some aspects of his investigation. The prosecutor shows the officer his report, which the officer prepared in the ordinary course of his work around the time of the events, but it does not refresh his memory. The prosecutor offers the report as evidence. The defendant’s attorney objects, relying on North Carolina Rule of Evidence 803(8). That rule creates an exception to the hearsay rule for official records and reports, but it specifically excludes “in criminal cases matters observed by police officers and other law-enforcement personnel.” The prosecutor argues that notwithstanding this prohibition, the report is admissible under other hearsay exceptions. Who’s right?

Rule 404 and Evidence of Prior Incarceration
In a recent decision, the Court of Appeals granted a new trial on the ground that improper and prejudicial character evidence regarding a prior incarceration of the defendant was admitted at trial. The case presents a reminder about the distinction between North Carolina Rules of Evidence 404(a) and 404(b) and sheds light on the admissibility of evidence of a defendant’s incarceration.
Facts. In State v. Rios, ___ N.C. App. ___ (Dec. 20, 2016), law enforcement obtained a warrant to search the residence of the defendant, where he lived with the homeowner and another roommate. The search revealed nearly sixty pounds of marijuana and a host of other evidence of drug distribution activity. The police found about seven pounds of marijuana in the defendant’s bedroom, most of which was in a large box. Fifty more pounds were found in the garage. A latent fingerprint found on drug-packaging material in the homeowner’s room was matched to the defendant.
Expert Testimony about Eyewitness Identification
This post addresses three recurrent issues concerning eyewitness identification:
- When, if at all, is expert testimony about eyewitness identification admissible?
- When, if at all, is an indigent defendant entitled to funds with which to hire an expert on eyewitness identification?
- May jury instructions, rather than expert testimony, be used to inform the jury about factors relevant to the accuracy of an eyewitness identification?
Sexual Activity as a Confidential Marital Communication
Is having sex with your spouse “communication”? The court of appeals addressed this issue in State v. Godbey, a child sexual abuse case. The victim alleged that the defendant engaged in specific, unusual sexual acts with her. The court considered whether the defendant’s wife could be compelled to testify that the defendant engaged in similar acts with her, or whether those acts were covered by the confidential marital communication privilege.

Caught on Camera
Surveillance camera footage of crime scenes often helps law enforcement officers identify an unknown perpetrator. This kind of footage can be equally powerful at trial, convincing jurors that the person depicted in the video is the defendant in the courtroom. There are foundational requirements that the State must satisfy for the display or admission of such evidence, and the state’s appellate courts have reviewed them in a handful of recent cases.

State v. Lindsey: Another Close Call on Probable Cause for DWI
Do the following facts provide probable cause to arrest for impaired driving?
An officer pulls behind a vehicle at a stoplight around 3 a.m. and sees that its registration is expired. He activates his blue lights, and the defendant turns into a nearby parking lot. When the officer approaches the car, the defendant tells him that his license is revoked for DWI. The officer smells a medium odor of alcohol coming from the defendant’s breath and sees that the defendant’s eyes are red and glassy. The officer performs an HGN test, noting 5 of 6 indicators of impairment. The defendant tells the officer that he had three beers at 6 p.m. the previous evening.
The court of appeals answered this question earlier this week in State v. Lindsey, ___ N.C. App. ___ (2016). Its answer, and the outcome of the case, may surprise you.

HGN, the Rules of Evidence and Suppression Hearings
True or False: An officer does not have to be qualified as an expert to testify about horizontal gaze nystagmus in a hearing on a motion to suppress in an impaired driving case.
Going “Beyond the Bounds” of Rule 404(b) in a Case Involving the Death of a Child
About a year ago, I wrote about State v. Hembree, 368 N.C. 2 (2015), a case in which the state supreme court reversed a murder conviction based on the State’s excessive use of Rule 404(b) evidence. This month, a divided court of appeals decided a case in the same vein. The case is State v. Reed.

When May Evidence of HGN Come on Down . . . or In?
The question I am most frequently asked these days is some version of the following:
May a law enforcement officer trained in administering the HGN test testify at trial about a defendant’s performance on the test if no other expert testifies about the relationship between nystagmus and impairment by alcohol?
While the answer obviously is either yes or no, there is more than one way to analyze the issue. Since today is Thursday, I’m going to throw it back to Bob Barker and the Price is Right and give you two showcases to consider.