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? Continue reading
Tag Archives: expert testimony
Like most of the rest of the country, I followed the recent confirmation hearings for Judge (now Justice) Kavanaugh with great interest.
As the readers of this blog already know, Dr. Christine Blasey Ford testified before the Senate Judiciary Committee that Judge Kavanaugh sexually assaulted her in high school. Much of her testimony recounted her recollection of that event, but some of her testimony was of a different nature. In addition to telling the Committee what she recalled, Dr. Ford also described the biological and chemical processes of memory itself, such as the way that neurotransmitters encode memories into the hippocampus.
Most of us will never participate in a Supreme Court confirmation hearing, but a similar type of dual testimony can arise in criminal trials in state court, and it raises some interesting issues.
The State of North Carolina goes to trial against Donnie Defendant, who is alleged to be the infamous “Tarheel State Killer” and charged with committing a series of brutal assaults and murders several decades ago. The state’s case depends heavily on matching DNA evidence from the crime scene to a sample of DNA taken off a cigarette butt discarded by Donnie. At trial, Special Agent Wanda Witness testifies as an expert in forensic DNA analysis for the state. After explaining the science behind PCR, STR, loci, and markers, Wanda opines that Donnie’s DNA is indeed a match to the DNA recovered from the crime scene.
Sounds like good news for the state, but what exactly does a “match” mean? And how may the significance or statistical probability of that “match” be expressed to the jury? It’s an important question, because what might sound like two similar ways of expressing the same probability can have dramatically different meanings – and possibly even be considered error on appeal.
It’s not Thursday, but I’m going to throw it back a few years to 2014. Like the rest of the nerds I know, I became obsessed that year with the podcast Serial. The first season of that podcast chronicled the prosecution of Adnan Syed for the 1999 murder of his ex-girlfriend, Hae Min Lee. Host Sarah Koenig meticulously sifted through the evidence and conducted goodness-knows-how-many interviews with everyone connected to the case, including numerous recorded interviews with Syed, who is serving a life sentence in a Maryland prison. Syed claims that he did not kill Lee, whose body was discovered six weeks after she disappeared buried in a Baltimore park. Koenig spends the first several episodes of the podcast describing inconsistencies in witness’s accounts of the day Lee disappeared—inconsistencies that raise doubts about Syed’s guilt. But in episode five, Koenig, with the help of her producer, analyzes the evidence that the State offered regarding which cell towers serviced calls to Syed’s phone during the time that one of Syed’s friends claimed Syed was burying Lee’s body. The producer concludes:
“I think they were probably in [the park] . . . Because . . . the amount of luck that you would have to have to make up a story like that and then have the cell phone records corroborate those key points, I just don’t think that that’s possible.”
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? Continue reading →
In Moore v. Texas, which I discussed here, the Supreme Court of the United States held that courts must rely on current clinical standards when determining whether a defendant is intellectually disabled and so exempt from the death penalty. Must courts also defer to clinical standards when determining whether a defendant is insane and so exempt from criminal culpability? I don’t think so, for the reasons below. Continue reading →
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?
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. Continue reading →
The rules of thumb about expert testimony in child sexual abuse cases are (1) that an expert can’t testify that a child was, in fact, abused absent physical evidence, and (2) that an expert can testify to common characteristics or “profiles” of sexual abuse victims. A recent court of appeals case holds that even if the State doesn’t give notice of an expert’s opinion regarding victims’ characteristics, the expert has the leeway to discuss his or her own experiences with survivors of sexual abuse. Continue reading →
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) (interpreting the role of the judge under Rule 702 of the Federal Rules of Evidence, which is substantially similar to amended N.C. Evid. R. 702). The judge must determine, at the outset, whether the expert is purporting to testify to scientific, specialized or technical knowledge that will assist the trier of fact to understand or determine a fact in issue. Kumho Tire v. Carmichael, 526 U.S. 137 (1999) (recognizing applicability of Daubert principles to all types of expert testimony admitted under Rule 702). This requires the court to preliminarily assess whether the reasoning or methodology underlying the testimony is scientifically valid and whether that reasoning or methodology can be applied to the facts in issue. Factors that may be relevant to that consideration are whether the theory or technique upon which the expert relies has been tested, whether it has been subject to peer review or publication, the known or potential rate of error, and whether the theory or technique enjoys general acceptance within the relevant scientific community.
She blinded me with science. The purpose of these requirements is to ensure that expert testimony is reliable and relevant. The gatekeeper “make[s] certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Kumho Tire, 526 U.S. at 152 (1999). One federal magistrate judge explained the rationale in a way any child of 1980s is sure to appreciate: “[Such evidence] must not be cloaked in an aura of false reliability, lest the fact finder, like the protagonist in the Thomas Dolby song, be ‘blinded by science’ or ‘hit by technology.’” United States v. Horn, 185 F. Supp. 2d 530, 551 (D. Md. 2002).
More than tort reform. While the changes to Rule 702 were enacted as a component of tort reform, the changes impact criminal as well as civil cases. Experts in criminal court are proffered to testify to items ranging from firearm toolmark identification, see State v. Britt, 217 N.C. App. 309, 314 (2011), to the “science” of the use of force, see State v. McGrady, 753 S.E.2d 361, 365 (N.C. Ct. App. 2014) review allowed, 2014 WL 2652419 (N.C. June 11, 2014). Such testimony frequently is offered in impaired driving cases to establish a defendant’s alcohol concentration or the fact of a defendant’s impairment by alcohol or other drugs.
Rule 702(a1). Before the 2011 amendments to Rule 702, which incorporated the Daubert gatekeeper requirements, the Rule was amended in 2006 to allow certain expert testimony regarding a defendant’s impairment. That portion of Rule 702 remains, and provides:
(a1) A witness, qualified under subsection (a) of this section and with proper foundation, may give expert testimony solely on the issue of impairment and not on the issue of specific alcohol concentration level relating to the following:
(1) The results of a Horizontal Gaze Nystagmus (HGN) Test when the test is administered by a person who has successfully completed training in HGN.(2) Whether a person was under the influence of one or more impairing substances, and the category of such impairing substance or substances. A witness who has received training and holds a current certification as a Drug Recognition Expert, issued by the State Department of Health and Human Services, shall be qualified to give the testimony under this subdivision.
A few years after the enactment of Rule 702(a1), and before the Daubert amendments, the state court of appeals interpreted the new subsection “as obviating the need for the State to prove that the HGN testing method is sufficiently reliable” as a condition of admitting the result. State v. Smart, 195 N.C. App. 752, 756 (2009). The Smart court rejected the defendant’s argument that a person testifying about HGN results must be an expert in the methodology underlying the test, explaining that such an interpretation “would make the subsection nothing more than an example of the requirements of subsection (a), which . . . states that “ ‘a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion.’ ” Id. (quoting former Rule 702(a)). The state’s appellate courts have not considered the requirements of Rule 701(a1)(2), pertaining to DRE testimony, but given that the subsection is similarly worded, one might have expected the same reasoning to apply – at least before the 2011 amendments.
Daubert vs. Smart. It is unclear whether the Smart analysis controls under current Rule 702. If the trial court cannot consider the reliability of the HGN test or the DRE protocol, then it arguably cannot fulfill its gatekeeper role under Rule 702(a). On the other hand, one might interpret Rule 702(a1) as expressing the legislature’s intent that the trial court not exercise this gatekeeper function with respect to these categories of expert testimony. If that interpretation controls, and the legislature’s imprimatur of this methodology does not violate a defendant’s right to due process, then one can expect the State to have a relatively easy time introducing expert testimony on the results of HGN analysis and conclusions based upon a DRE examination. Indeed, before the supreme court in Kumho Tire clarified that Daubert applied to all types of expert testimony under Rule 702, not just to scientific testimony, some courts concluded that HGN and DRE testimony was not subject to Daubert because it was not scientific. See United States v. Everett, 972 F. Supp. 1313, 1321 (D. Nev. 1997) (finding that DRE testimony was not governed by Daubert “on the basis that the DRE’s testimony is not ‘scientific’ in nature, but based upon observation, training and experience” and permitting DRE to testify “to the probabilities, based upon his or her observations and clinical findings, but cannot testify, by way of scientific opinion, that the conclusion is an established fact by any reasonable scientific standard”); State v. O’Key, 899 P.2d 663, 670 (Or. 1995) (holding that admissibility of HGN “is subject to a foundational showing that the officer who administered the test was properly qualified, that the test was administered properly, and that the test results were recorded accurately”).
If, however, the amendments to Rule 702(a) call for the trial judge to assess the reliability of all expert testimony, including HGN and DRE testimony, the State will have to satisfy a higher, though likely surmountable, threshold. Cf. State v. Aleman, 194 P.3d 110, 120 (“[W]hether the [DRE] Protocol is deemed non-scientific or scientific, every case called to our attention that has considered the issue [has] held the DREs’ testimony to be generally admissible.”) This may require, however, that the State establish the reliability of the scientific principles underlying such testing, which may involve the testimony of a witness other than the arresting officer or evaluating DRE. One state appellate court has concluded, for example, that evidence of DRE procedures and results are admissible as scientific evidence only when corroborated by a toxicology report. The Court of Appeals of Oregon explained in State v. Aman, 95 P.3d 244 (Or. App. 2004) that “the omission of the corroborating toxicology report deprives the test of a major element of its scientific basis, and there is no evidence that an examiner’s reputation for accuracy constitutes an adequate substitute.” Id. at 472-73. The same court concluded in a subsequent case that a police officer was properly allowed to testify as to his “nonscientific expert opinion” that the defendant was under the influence of a narcotic analgesic where that opinion was based on a foundation that included evidence encompassed in a DRE test. See State v. Rambo, 279 P.3d 361, 365 (2012) review denied, 296 P.3d 1275 (Or. 2013).
A fine line? I’d say. What’s happening in your trials? Is the gate swinging wide open for DRE and HGN testimony or is it guarded by a skeptical judge?