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
Tag Archives: expert testimony
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?
More and more criminal cases involve electronic tracking. Sometimes the defendant is tracked using GPS, other times using cell site location information. Either way, interesting evidentiary questions arise. May an officer who knows how to use a tracking device testify about tracking, even if she doesn’t know much about how the underlying technology works? Who can testify about cellular towers and how cellular telephones connect to them? Is such testimony lay witness testimony or expert testimony?
GPS tracking. The recent case of State v. Jackson, __ N.C. App. __, 748 S.E.2d 50 (2013), provides helpful guidance regarding GPS tracking. The defendant in that case sexually assaulted a woman on the street. He was wearing an ankle bracelet, apparently as a condition of pretrial release on other charges. At trial, the supervisor of the Charlotte-Mecklenburg Police Department’s electronic monitoring unit testified about the ankle bracelet and introduced a video tracking the defendant’s movements during the time period in question. On appeal, the defendant contended that “the State failed to establish a proper foundation to verify the authenticity and trustworthiness of the data” and needed to verify the accuracy of the data before it could be admitted, but the court ruled that the officer’s “testimony established a sufficient foundation of trustworthiness.” The court also stated that the officer’s testimony was admissible as lay witness testimony based on his review of the tracking data, rather than as expert testimony. Both the fact that the court approved of testimony from an officer – rather than a scientist or an engineer – and the fact that the court deemed the testimony lay testimony are significant.
As an aside, Jackson makes an interesting contrast to State v. Meadows, 201 N.C. App. 707 (2010), where the court of appeals ruled that an officer could not testify as an expert regarding the use of the NarTest machine to identify controlled substances, because there was insufficient evidence of the machine’s reliability and the officer had no training in chemistry to allow him to assess the functioning of the machine.
Cell site tracking. I’m not aware of a North Carolina appellate case addressing the evidence issues surrounding cell site tracking testimony. However, there are some relevant cases from appellate courts around the country. Some cases involve officer witnesses, while others involve witness from telecommunications service providers. Let’s look at those cases separately.
Testimony by officers. Several courts have allowed officers to testify as lay witnesses regarding at least basic cell site tracking procedures. See, e.g., United States v. Feliciano, 300 Fed. Appx. 795 (11th Cir. 2008) (unpublished) (holding that a trial judge did not abuse his discretion in allowing an officer to testify “about cell tower sites”; the officer “simply reviewed the cellular telephone records . . . which identified cellular towers for each call, and based on his personal knowledge concerning the locations of certain cellular towers, testified that, at the time of the call [a specific phone was not near a specific location]”); United States v. Evans, 892 F.Supp.2d 949 (N.D. Ill. 2012) (holding that an officer would be allowed to testify as a lay witness regarding the location of cell towers and regarding which towers the defendant’s cell phone used at what time, and that the officer would be allowed to plot the towers on a map without qualifying as an expert; however, any testimony about how cellular networks work and “granulization theory” would require qualification as an expert). On the other hand, Wilder v. State, 991 A.2d 172 (Md. Ct. App. 2010), ruled that “the use of cell phone site location evidence and the accompanying testimony of a law enforcement officer who explain[s] its use require the qualification of the sponsoring witness as an expert.” It seems to me that the more technical and complicated the tracking procedure is, the more likely a court would be to require an officer to qualify as an expert in order to testify about it.
Testimony by employees of telecommunications service providers. Courts have also considered testimony from employees of cellular service providers. Most courts seem to have allowed relatively low-level employees to testify as lay witnesses about cell site tracking. See, e.g., Gosciminski v. State, __ So.3d __, 2013 WL 5313183 (Fla. Sept. 12, 2013) (a Nextel engineer testified during a murder case regarding “maps of the cell towers, the coverage areas of the towers, propagation information, and specific cell phone calls made or received by [the defendant]” and introduced diagrams regarding tower locations and sector information; this was properly admitted and did not require that the engineer be qualified as an expert because “such information is understood by the average juror who owns a cell phone”); Woodward v. State, __ So.3d __, 2011 WL 6278294 (Ala. Ct. Crim. App. Dec. 16, 2011) (lay witnesses employed by cell phone company were properly allowed to testify that cell phone records “indicated the locations of the callers at certain times”; the testimony did not require specialized knowledge and was limited to information regarding “cell towers used during certain phone calls”); Malone v. State, 73 So.3d 1197 (Miss. Ct. App. 2011) (cell phone company employees properly testified as lay witnesses regarding cell phone records, tower locations, tower coverage information, and tower usage; none of this was “so complex or technical as to render it expert testimony”). Again, the more complex the testimony is, the stronger the argument for requiring the witness to qualify as an expert.
Conclusion. The evidence issues surrounding tracking technology may prove difficult to settle. In part, this is because tracking technology itself changes so rapidly that decisional law struggles to keep up. But it is also because the line dividing lay and expert testimony is unstable. A witness must testify as an expert if the witness’s testimony involves “scientific, technical or other specialized knowledge,” N.C. R. Evid. 702, that is beyond the experience of a typical juror. But a typical juror today knows far more about GPS satellites and cellular towers than a typical juror a decade ago. And of course, tomorrow’s jurors likely will know even more.
The recent case, State v. Ryan, presents an issue that keeps our appellate courts busy: the proper scope of expert testimony in child sexual abuse cases. In Ryan, after the child victim reported that the defendant had sexually abused her some two years earlier, she was seen by Dr. Gutman, a pediatrician specializing in child maltreatment and sexual abuse. Following an interview, Gutman performed a physical exam on the child. She observed a deep notch in the child’s hymen but found the child’s anus to be normal. Tests for sexually transmitted diseases revealed the presence of bacterial vaginosis.
The defendant was charged with rape, sexual offense, and taking indecent liberties. At trial, Gutman testified that the child had been sexually abused, that she had no indication the child’s story was fictitious or that the child had been coached, and that defendant was the perpetrator. The defendant was found guilty and appealed, asserting that Gutman’s testimony was inadmissible.
Conclusions of Sexual Abuse
At trial Gutman testified that based upon her training, education, and experience, and her examination of the child, the history given by the child and her physical findings “were consistent with sexual abuse[.]” In her written report, however, she concluded that the child had been “sexually assaulted.” Evaluating this testimony, the court repeated what’s long been the law in North Carolina: An expert may testify that sexual abuse has in fact occurred only if that opinion is based on physical evidence consistent with sexual abuse. However, in the absence of physical evidence to support a diagnosis of sexual abuse, expert testimony that sexual abuse has in fact occurred is an impermissible opinion regarding the victim’s credibility. Applying these rules, the court concluded:
In both her testimony and . . . report, Dr. Gutman did not state which acts of alleged sexual abuse she concluded had occurred . . . . Had Dr. Gutman testified as to her specific conclusion that the child had been the victim of both vaginal and anal sexual abuse, we would hold the admission of such testimony to be error, as the State presented no physical evidence of anal sexual abuse . . . . However, Dr. Gutman did not give an opinion as to which specific assault she concluded had occurred. Rather, Dr. Gutman stated only her conclusions that the child’s history and physical findings were “consistent with sexual abuse” and that based on her medical evaluation of the child, the child had been “sexually assaulted.” Because the State introduced a proper foundation of physical evidence – the unusual deep hymenal notch and the presence of the child’s vaginosis – prior to Dr. Gutman’s stating her conclusion of sexual abuse, we cannot conclude it was error for Dr. Gutman to testify as to her general conclusions.
No Concerns About a “Fictitious Story”
The defendant’s assertion that it was improper for Gutman to testify that the child’s story was not fictitious centered on Gutman’s testimony on redirect. Gutman was asked whether anything about her examination of the child raised concerns for her that the child was not being truthful or that her story was fictitious. She responded: “Nothing. There was nothing about the evaluation which led me to have those concerns. And again, as I was getting into her history and considering this as a possibility, nothing came out.”
Citing longstanding rules, the court noted that an expert may not testify that a victim is believable, credible, or telling the truth. Applying these rules, the court held that Gutman’s testimony was “tantamount to her opinion that the child was not lying about the sexual abuse” and thus was inadmissible. The court rejected the argument that the defendant opened the door to this testimony by asserting that the child was coached into making the sexual abuse allegations.
Gutman testified regarding indications that a child has been “coached” and that, based upon her examination of the child in this case, there were no indications that she “had been coached in any way[.]” Citing State v. Baymon, 336 N.C. 748, 752 (1994) for the proposition that a statement that a child was not coached is distinguishable from a statement on the child’s truthfulness, the court found this testimony to be admissible.
Defendant as Perpetrator
At trial, Gutman concluded that based on her interview with the child, “there was no evidence that there was a different perpetrator” other than defendant. The court cited State v. Brigman, 178 N.C. App. 78, 85-86 (2006) (pediatrician’s testimony that victims had “suffered sexual abuse by [defendant]” was improper opinion testimony on credibility) and State v. Figured, 116 N.C. App. 1, 8-9 (1994) (expert’s opinion that “children were sexually abused by this defendant” was improper), and found “no discernible difference” between Gutman’s testimony and the testimony in those cases. It held that her testimony about the perpetrator was improper opinion testimony regarding the child’s credibility.
* * *
The court went on to conclude that Dr. Gutman’s inadmissible testimony that the child’s story was not fictitious and that the defendant was the perpetrator was plain error and warranted a new trial.
I find the most interesting aspect of this case to be the holding regarding Gutman’s opinion that the child had been sexually abused. While the child’s statements indicated that both vaginal and anal sexual abuse occurred, Gutman found physical evidence only as to vaginal penetration. Nevertheless, her report stated that the child had been sexually assaulted, without specifying anal or vaginal abuse. Noting that an expert opinion that anal abuse had occurred would have been improper, the court found Gutman’s “general conclusion” permissible, given the physical evidence supporting the allegation of vaginal sex. I wonder however what impact this “general” opinion had on the jury. Interestingly, the jury came back not guilty on rape but guilty on sexual offense. We’ll never know what weight the jury gave to Gutman’s opinion, but I can’t help but wonder whether the jurors took it to mean that anal sex occurred. What do you think?
Child sexual abuse cases raise a bevy of evidence issues. One recurring issue is this: Is it permissible for the State’s expert to testify that sexual abuse in fact occurred? The answer is yes, in certain circumstances. Here are the rules:
1. In a case involving a child victim, an expert may testify that sexual abuse in fact occurred if a proper foundation is laid.
2. To lay a foundation, the State must establish physical evidence consistent with abuse.
3. If there are no physical findings supporting a diagnosis of sexual abuse, the testimony is an impermissible opinion regarding the child’s credibility.
State v. Stancil, 355 N.C. 266 (2002).
This very issue came up in a recent case, State v. Black. In Black, the defendant was charged with sexual assaults on the child victim, Deborah. After the alleged incidents, the child began seeing Nadia Antoszyk, a licensed clinical social worker. At trial, Antoszyk testified as an expert for the State. When asked about Deborah’s treatment, Antoszyk replied in part: “For a child, that means . . . being able to, um, come to terms with all the issues that are consistent with someone that has been sexually abused.” Antoszyk also testified on multiple occasions to the conclusion that the sexual abuse experienced by Deborah started at a young age, perhaps age seven, and continued until she was removed from the home. When asked why Deborah lashed out at a family member, Antoszyk explained that the behavior was “part of a history of a child that goes through sexual abuse.” With respect to her concerns about the adequacy of that same family member’s caregiving, Antoszyk testified: “She had every opportunity to get the education and the information to become an informed parent about a child that is sexually abused.” Finally, when asked if it was reasonable for that family member to have some doubt as to Deborah’s story given that Deborah had recanted on multiple occasions, Antoszyk responded: “With me, there was no uncertainty.” In its case in chief, the State presented no physical evidence indicating that Deborah was abused. The defendant was convicted. He appealed, arguing, among other things, that Antoszyk’s testimony improperly vouched for Deborah’s credibility.
The court of appeals agreed that Antoszyk’s testimony was improper. Referencing the rules noted above, the court concluded: “Each time, Ms. Antoszyk effectively asserted that Deborah was a sexually abused child even though the State had presented no physical evidence of abuse. The testimony was, therefore, improperly admitted.” The court went on to conclude that the error did not rise to the level of plain error.
In Black the problem was that there was no physical evidence to support the expert’s testimony. State v. Streater, 197 N.C. App. 632 (2009), provides a good example of the type of physical evidence that’s needed to lay an adequate foundation for this type of testimony. In Streater, the court held that a pediatrician properly was allowed to testify that his findings were consistent with the victim’s history of vaginal penetration because an adequate foundation was laid. Specifically, the expert testified that he examined the child and found that her vaginal opening was “abnormal in several ways,” including its size and the presence of notches and a scar. The court went on to hold that the same expert improperly testified that his findings were consistent with the child’s history of anal penetration. In this respect, his examination of the victim’s anal opening showed no abnormal findings. As in Black, no physical evidence supported the statement that anal penetration occurred.
The black letter rules that apply to these cases can be easily stated. However, their application is often a bit trickier than Black and Streater suggest. As the Streater court noted: “There is a fine line between permissible and impermissible expert testimony . . . .” Streater, 197 N.C. App. at 640. Further complicating the issue is the fact that different rules apply to profile and related evidence. If there is interest, I’ll take those issues up in another post.
In State v. King, the N.C. Supreme Court recently clarified the rules regarding the admissibility of repressed memory evidence. In King the defendant was charged with sexually assaulting his daughter, a minor. When she was approximately 17 years old, the victim began suffering panic attacks and pseudoseizures, acting like a young child, speaking of a “mean man” who might hurt her, and identifying her father as the “mean man.” The victim was diagnosed with conversion disorder and referred to therapy. During therapy the victim recounted an event that occurred when she was seven years old. Specifically, she recalled getting out of the bathtub and hurting her “private area.” She did not remember how the injury occurred, but remembered that her father said she had fallen. She also remembered bleeding and going to the hospital where she was treated for a vaginal laceration. When the therapist asked the victim what she would think if a friend related this incident to her, the victim said that she would “wonder about abuse,” but added that she did not believe her father would do that. The therapist stated that the mind can protect itself by “going somewhere else when something very difficult or painful might be happening.” About three weeks later, the victim experienced her first “flashback.” When her boyfriend’s arm brushed against her, the memory “hit” that as she had been getting out of the bathtub, her father came in, lifted her against the wall, threw her on the floor, held her down, and raped her. The victim recalled that her father had threatened to hurt her if she told anyone. After reporting this memory to her therapist, the victim was referred to social services. An investigation resulted in the charges against the defendant.
The defendant made a pretrial motion to exclude expert testimony about “repressed memory” and synonymous terms. The defendant argued that the evidence did not satisfy Rule 702 and Howerton (as noted by the King court, the recent legislative changes to Rule 702 did not apply in this case). A hearing on the motion resulted in a battle of crimson experts. The State called James A. Chu, M.D., associate clinical professor of psychiatry at Harvard Medical School, as an expert in repressed memory. The defendant offered Harrison G. Pope, Jr., M.D., professor of psychiatry at Harvard Medical School, also as an expert in repressed memory. Pope testified that the theory of repressed memory is not generally accepted in the scientific community. Chu disagreed. The trial court granted the motion to suppress. Although it found Howerton satisfied, it excluded the evidence under Rule 403.
The State appealed, believing that it could not proceed to trial under the rule of Barrett v. Hyldburg, 127 N.C. App. 95, 100 (1997). Barrett was a civil action for assault and battery and other claims, all based on the plaintiff’s repressed memories. Barrett held that “testimony regarding recovered memories of abuse may not be received at trial absent accompanying expert testimony on the phenomenon of memory repression.” It reasoned that expert testimony is needed “to afford the jury a basis upon which to understand the phenomenon and evaluate the reliability of testimony derived from such memories.” The State believed that once the trial court refused to admit expert testimony of repressed memory, Barrett prevented the victim from testifying. Agreeing with the State’s characterization of Barrett, the court of appeals affirmed. The State sought further review.
The N.C. Supreme Court began by holding that the trial court did not abuse its discretion by excluding the expert testimony under Rule 403. It concluded that even if expert evidence is both relevant and admissible under Rule 702, the trial court still may exclude it under Rule 403. Here, there was no abuse of discretion in the trial court’s conclusion that because recovered memories are of “uncertain authenticity” and susceptible to alternative possible explanations, the probative value of the testimony was outweighed by its potential to confuse or mislead the jury. The court was careful to note that it was not promulgating a general rule as to the admissibility of repressed memory evidence. It stated:
[W]e stress that we are reviewing the evidence presented and the order entered in this case only. We promulgate here no general rule regarding the admissibility or reliability of repressed memory evidence under either Rule 403 or Rule 702. As the trial judge himself noted, scientific progress is “rapid and fluid.” Advances in the area of repressed memory are possible, if not likely, and even Dr. Pope, defendant’s expert, acknowledged that the theory of repressed memory could become established and that he would consider changing his position if confronted with a study conducted using reliable methodology that yielded evidence supporting the theory. Trial courts are fully capable of handling cases involving claims of repressed memory should new or different scientific evidence be presented.
The court then considered the impact of Barrett. It agreed that a witness may not express the opinion that he or she has experienced repressed memory, stating that such testimony required expert opinion. However, it found that Barrett went too far when it indicated that a witness’s testimony that he or she suddenly remembered traumatic incidents from childhood must be accompanied by expert testimony. It stated: “if a witness is tendered to present lay evidence of sexual abuse, expert testimony is not an automatic prerequisite to admission.” The court then remanded for proceedings consistent with its opinion.
So what does this mean with respect to repressed memory evidence? It means this:
- A victim may testify to his or her recollections of past events, including testimony that for some time period he or she did not recall, had no memory of, or had forgotten the incident.
- A victim may not express the opinion that these recollections are the result of repressed memory.
- To introduce evidence regarding the psychiatric theory of repressed memory, expert testimony is required.
- Such expert testimony must satisfy Rule 702.
- Even if such testimony satisfies Rule 702, the trial judge may exercise discretion to exclude it under Rule 403.
A couple of months ago, the court of appeals decided State v. McDowell, __ N.C. App. __, 715 S.E.2d 602 (2011). The defendant was convicted of first-degree murder notwithstanding his claim of self-defense. A passage from the court’s opinion caught my eye:
Dave Cloutier, an expert in use-of-force science and self-defense tactics, testified that, given Defendant’s account of the events that occurred at the time of the shooting, Defendant’s initial decision to use force against [the victim] was reasonable given the “pre-attack cues” that Defendant had received and applicable “use-of-force variables.” The factors that Mr. Cloutier deemed relevant included [the victim’s] decision to point a shotgun at Defendant, the fact that [the victim] threatened to kill Defendant, the fact that Defendant feared for his life, and the fact that Defendant needed to react quickly.
The expert’s testimony wasn’t an issue in the case, but I wasn’t very familiar with use of force experts and wondered whether the testimony described in the court’s opinion should have been admitted in the first place. After a bit of research, it appears that there are two basic concerns with testimony from use of force experts. (As an aside, if you’re wondering what makes a person an expert in the use of force, Cloutier’s CV is available on the IDS website here.) First, does the witness really possess “specialized knowledge [that] will assist the trier of fact,” as required by N.C. R. Evid. 702(a)? Second, does the witness’s testimony constitute an improper legal conclusion?
As to the first issue, some use of force testimony strikes me as neither specialized nor especially helpful to the jury. For example, I doubt that most jurors need an expert to tell them that if A points a gun at B and threatens to shoot, B’s life in in danger. So unless there was more to the expert’s testimony in McDowell than described in the appellate opinion – which there may well have been, since, again, the expert’s testimony wasn’t the focus of the appeal – the testimony in McDowell likely could have been excluded.
In other situations, though, an expert might well possess relevant specialized knowledge. For instance, in cases in which excessive force by an officer is alleged, “[c]ourts generally allow experts . . . to state an opinion on whether the conduct at issue fell below accepted standards in the field of law enforcement.” Zuchel v. City and County of Denver, 997 F.2d 730 (10th Cir. 1993). See also Jackson v. City of Pittsburgh, 2011 WL 3443951 (W.D. Pa. Aug. 8, 2011) (unpublished) (expert properly “explained the City of Pittsburgh’s Use of Force Policy and the Use of Force Continuum, among other applicable police procedures”). Another situation in which expert testimony might be admissible is exemplified by State v. Oakes, __ N.C. App. __, 703 S.E.2d 476 (2011). In Oakes, the defendant claimed that he shot the victim in self-defense, and sought to explain the fact that one of the bullets hit the victim in the back. He called a use of force expert who proposed to testify that “a person can turn his body 90 degrees faster than a person can pull a trigger once the decision has been made to pull the trigger.” That seems to be relevant and helpful information that most jurors might not know. (The trial court in Oakes excluded the testimony, and the reviewing court found any error not to be prejudicial in light of the fact that the defendant was also convicted of felony murder.)
As to the second issue – whether use of force testimony constitutes an improper legal conclusion – the leading case seems to be Hygh v. Jacobs, 961 F.2d 359 (2nd Cir. 1992). Hygh is a civil case in which an arrestee sued the officer who arrested him for excessive force. (The officer allegedly struck the arrestee with a flashlight, breaking the arrestee’s cheekbone.) The plaintiff called a professor as an “expert witness concerning law enforcement,” and the professor testified, inter alia, that the officer’s use of force was not “justified under the circumstances,” not “warranted,” and was “totally improper.” The Second Circuit found the admission of the testimony to be error, because the testimony stated legal conclusions, i.e., simply told the jury what result to reach. See also Haflich v. McLeod, 2011 WL 65877 (D. Mont. Jan. 10, 2011) (unpublished) (excluding expert’s testimony that the defendant’s conduct was “punitive,” and citing Hygh). The brief statement in McDowell that the expert testified that the defendant’s “decision to use force against [the victim] was reasonable” similarly strikes me as improperly stating a legal conclusion. Cf. State v. Pollard, 2005 WL 1669034 (N.C. Ct. App. July 19, 2005) (unpublished) (excluding expert’s testimony because the defendant presented no evidence of self-defense; the defendant sought to have the expert testify to “the proportionality of the force defendant used”).
So is expert use of force testimony admissible? I think it depends on the nature of the testimony, as discussed above. As always, if you think I’ve analyzed the issue incorrectly, or if you know of other significant cases in this area, feel free to weigh in.