Daubert and Expert Testimony of Impairment

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

Testimony about Tracking

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 … Read more


Experts in Child Sex Cases: Reversible Error in a Recent Case

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 … Read more


Expert Testimony: “The Child Was Sexually Abused”

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 … Read more


Repressed Memory Evidence

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 … Read more

Use of Force Experts

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 … Read more


The Need for (Evidence of) Speed

A civil case decided by the court of appeals last week, Blackwell v. Hatley, addresses when a witness may testify as to his or her opinion of how fast a vehicle was traveling.  In Blackwell, the court held that an accident report prepared by a town police officer estimating the defendant’s speed at the time … Read more

Visual Identification of Drugs (Again)

The longest opinion issued by the court of appeals this week was Judge Ervin’s 45-page treatise in State v. Ward, __ N.C. App. __ (2009). Although the opinion contains other important material, I want to focus on the court’s holding that the method used by an SBI agent to identify certain prescription drugs was “not … Read more