My recent criminal justice class involved forensics so, being in London, it seemed only fitting to take a look at Sherlock Holmes and his methods. What was the impact of Arthur Conan Doyle’s fictional character on the development of forensics? What can we learn from Holmes more than 130 years after his first appearance in the classic A Study in Scarlet?
Here’s a question that arose during a recent class: Suppose that a party in a criminal case seeks to introduce forensic evidence from a discipline of questionable validity, such as bite mark analysis. The lawyer on the other side isn’t aware that the technique has been the subject of scientific criticism and doesn’t object. Must the trial judge nonetheless assess the reliability of the proposed testimony before admitting it?
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.
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.
The North Carolina Supreme Court held in State v. McGrady, __ N.C.___ (June 10, 2016), that Rule 702(a) of the North Carolina Rules of Evidence incorporates the standard set forth in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). That’s what the court of appeals had already said, so it isn’t a big surprise. In McGrady, the application of Daubert led the state supreme court to conclude that the trial court did not err in excluding testimony from an expert in law enforcement training about the defendant’s conscious and unconscious responses to a perceived threat from the victim. McGrady’s analysis opens the door for reconsidering the admissibility of many types of expert testimony previously admitted as a matter of course, including expert testimony from law enforcement experts involving scientific and medical principles.
With the amendment of Rule 702 of the North Carolina Rules of Evidence in 2011, North Carolina became a Daubert state. That change means that trial judges in this state, like their federal counterparts, serve as gatekeepers when faced with a proffer of expert testimony. See Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993) … Read more