Testimony about Tracking

Tag Archives: expert testimony

Testimony about Tracking

Posted on October 22, 2013 by Jeff Welty

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 (11^th 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.

Category: Evidence, Uncategorized | Tags: cell site location information, expert testimony, gps, jackson, tracking

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

Posted on December 10, 2012 by Jessica Smith

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.

No Coaching

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?

Category: Evidence, Uncategorized | Tags: child sexual abuse, expert testimony, gutman, ryan

Expert Testimony: “The Child Was Sexually Abused”

Posted on October 18, 2012 by Jessica Smith

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.

Category: Evidence, Uncategorized | Tags: abuse, black, expert testimony, expert witnesses, stancil

Repressed Memory Evidence

Posted on July 16, 2012 by Jessica Smith

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.

Category: Evidence, Uncategorized | Tags: barrett, expert testimony, howerton, king, repressed memory, rule 403

Use of Force Experts

Posted on December 12, 2011 by Jeff Welty

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 (10^th 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 (2^nd 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.

Category: Evidence, Uncategorized | Tags: expert testimony, expert witnesses, experts, use of force

Expert Discovery

Posted on August 10, 2011 by Jeff Welty

For a variety of reasons, I’ve spent some time recently looking at expert discovery in criminal cases. I thought I’d put together a short summary of the law.

The discovery statutes impose identical obligations on the parties regarding their experts. Each side must give notice to the other of any expert witnesses that it “reasonably expects to call.” The witness must prepare, and the party must disclose, a “report of the results of any examinations or tests conducted by the expert.” The party must also disclose “the expert’s curriculum vitae, the expert’s opinion, and the underlying basis for that opinion.” This must be done “within a reasonable time prior to trial, as specified by the court.” G.S. 15A-903(a)(2) (state); G.S. 15A-905(c)(2) (defense).

Several issues may arise regarding expert discovery. The first concerns timing. Often, a judge will enter a scheduling order mandating the exchange of expert discovery by a certain date. Absent such an order, what is a “reasonable time prior to trial”? The leading case is State v. Cook, 362 N.C. 285 (2008), a second-degree murder case arising out of an impaired driving accident. The state retained an expert to perform a retrograde analysis of the defendant’s blood alcohol content. The witness completed his report five weeks prior to trial, but the state only identified the expert and provided his CV five days (three working days) before trial, and did not provide his report until three days (one working day) prior to trial. The defendant sought a continuance based on the late disclosure, but the trial court denied the motion. The state supreme court eventually reviewed the case, and held that the trial court had erred, though it found the error to have been harmless. The court found that the defendant was unfairly surprised by the timing of the disclosure, because he “had just a weekend to find his own expert in this field and to decide whether to call such a witness to counter the State’s evidence.” Thus, Cook suggests that disclosure just a few days before trial may be inadequate, and that the adequacy of discovery should be measured by whether the discovery provides sufficient notice to prevent surprise and to allow the opposing party to prepare to meet the evidence in question. See also generally State v. Greene, 2010 WL 3465328 (N.C. Ct. App. Sept. 7, 2010) (unpublished) (state’s disclosure of expert witnesses during jury selection was untimely, but two-day continuance to allow defendant to prepare was sufficient remedy).

The second issue that arises frequently with respect to experts is how much detail a party must provide when describing the expert’s opinion and its basis. Few, if any, North Carolina cases speak directly to this issue. (There’s an interesting body of federal cases on point, but the cases don’t all agree on the proper analysis, so I don’t think that they provide much guidance, in the end.) However, the courts’ emphasis on preventing unfair surprise suggests that the disclosure must provide enough detail to allow the opposing party to prepare to meet the expert’s testimony, whether by cross examination or by presenting an expert of its own.

Finally, issues may arise concerning the proper remedy for a violation of the expert discovery statutes. Several options are available under G.S. 15A-910, including granting a continuance to allow the surprised party additional time to prepare; prohibiting the introduction of the evidence in question; or granting a mistrial or even a dismissal. However, when the violation is due to the conduct of an expert – rather than a party – the court’s options are limited by State v. Gillespie, 362 N.C. 150 (2008). In Gillespie, the trial judge ordered the parties to exchange reports from their mental health experts two weeks before trial. The defendants’ experts failed to produce their reports in a timely fashion, so the trial judge sanctioned the defendant by prohibiting him from calling the experts. On review, the supreme court ordered a new trial, ruling that G.S. 15A-910 only allows the court to sanction parties for their own discovery violations, not for violations committed by third parties, which is how it viewed the defendants’ experts.

If there are other recurrent issues concerning expert discovery, I’d like to know about them. I’m writing something more formal on the subject, and your feedback would help me improve that product.

Category: Procedure, Uncategorized | Tags: discovery, expert testimony, expert witnesses

The Need for (Evidence of) Speed

Posted on February 9, 2010 by Shea Denning

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 of the crash was inadmissible because the officer had not seen the accident. The court likewise held inadmissible testimony about the defendant’s speed proffered by the plaintiff’s accident reconstruction expert on the basis that the expert had not seen the accident, which occurred in 2004. The date of the crash was significant with respect to the latter ruling as the court recognized that N.C. R. Evid. 702 was amended in 2006 to permit a witness qualified as an expert in accident reconstruction who has performed a reconstruction of a crash or who has reviewed the report of investigation, with proper foundation to give an opinion as to the speed of a vehicle—even if the witness did not observe the vehicle moving. See N.C. R. Evid. 702(i). Because the Blackwell accident occurred before the effective date of this provision (August 21, 2006), the court applied the rule from pre-amendment case law that permitted the admission of such evidence only if the expert witness saw the accident.

State v. Davis, ___ N.C. App. ___, 678 S.E.2d 385 (2009) demonstrates how Rule 702(i) applies in a criminal case involving a post-amendment crash. In Davis (discussed here), a state trooper who did not see the accident was qualified as an expert witness in accident reconstruction. Based upon his investigation, which included measurements and analysis of the weight of the vehicle in involved, the trooper testified as to his opinion of the speed the defendant’s vehicle was traveling just before the collision. See Defendant-Appellant’s Brief at 6; Brief for the State at 8, available here. The admissibility of this evidence was not challenged on appeal.

So, under current law, a witness qualified as an expert in accident reconstruction may, upon meeting other foundational requirements, give an opinion as to the speed a vehicle was moving, regardless of whether the expert saw the vehicle moving. Any other person may only testify as to his or her opinion of a vehicle’s speed if the witness saw the vehicle in motion.

What about lay witnesses? Can a person with no training in estimating speed testify about how fast a vehicle was moving? You betcha. The state supreme court has explained that “a person of ordinary intelligence and experience is competent to state his opinion as to the speed of a vehicle when he has had a reasonable opportunity to observe the vehicle and judge its speed.” Insurance Co. v. Chantos, 298 N.C. 246, 250, 258 S.E.2d 334, 336 (1979). Indeed, in Blackwell, the court held admissible testimony from two lay witnesses who saw the accident from across the street and estimated the defendant’s speed.

But wouldn’t evidence of speed based upon a radar reading be better? Not necessarily . G.S. 8-50.2 provides that the results of the use of “radio microwave, laser, or other speed-measuring instruments” are admissible as evidence of the speed of an object “for the purpose of corroborating the opinion of a person as to the speed of an object based on the visual observation of the object by such person.” Indeed, in State v. Jenkins, 80 N.C. App. 491, 342 S.E.2d 550 (1986), the court granted the defendant a new trial based upon the trial court’s intimation, in response to a question from the jury, that defendant could be convicted solely upon the radar measurement of his speed. The Jenkins court explained that “[t]he General Assembly has provided that the speed of a vehicle may not be proved by the results of radar measurement alone and that such evidence may be used only to corroborate the opinion of a witness as to speed, which opinion is based upon actual observation.”

Category: Evidence, Motor Vehicles, Uncategorized | Tags: expert testimony, expert witnesses, lay opinion, lay witnesses, radar, speed

Visual Identification of Drugs (Again)

Posted on August 20, 2009 by Jeff Welty

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 consistent with the general thrust of existing precedent concerning how controlled substances should be identified in criminal trials and . . . [was] not sufficiently reliable.”

The defendant in Ward sold what appeared to be prescription drugs to a police informant. A subsequent search of the defendant, his car, and his house turned up enough additional drugs to stock a pharmacy. He was charged with, and convicted of, a variety of drug offenses. Part of the state’s evidence at trial was the testimony of an SBI agent who testified as an expert in the fields of chemical analysis of drugs and forensic chemistry. He testified that “that he performed a chemical analysis or visual examination of the evidence seized from Defendant . . . [and that] these substances included Cocaine, Dihydrocodeinone (an opium derivative), Hydrocodone (an opium derivative), Oxycodone (an opium derivative), [and various other controlled substances].” He indicated that he identified some of the drugs based upon a chemical analysis, but that he “identified certain other substances on the basis of a visual examination of the size, shape, color of and markings on the tablets in question.” Specifically, the agent compared the appearance of the pills, including their pharmaceutical markings, to a reference work called Micromedics Literature, which he testified is “used by the doctors in hospitals and pharmacies to identify prescription medicine[s].”

On appeal, the defendant argued that the trial court erred in allowing this testimony, claiming that the method used by the agent to identify the drugs was not sufficiently reliable to satisfy the requirements of Rule 702 and State v. Goode, 341 N.C. 513 (1995). The court of appeals agreed. First, it addressed State v. Fletcher, 92 N.C. App. 50 (1988) (allowing a police officer to testify as an expert and to identify marijuana based on its appearance), discounting it as a pre-Goode case that was not focused on the reliability of the testimony at issue. The court then noted without comment that Fletcher was applied (post-Goode) to crack cocaine in State v. Freeman, 185 N.C. App. 408 (2007) (allowing a police officer to give his lay opinion that a particular substance was crack cocaine), before focussing on State v. Llamas-Hernandez, 363 N.C. 8 (2009), reversing for reasons stated in dissenting opinion, 189 N.C. App. 640 (2008), a case discussed at length in this prior blog post.

Llamas-Hernandez held that two police officers should not have been allowed to give lay opinion testimony to the effect that a white powder seized during an investigation was cocaine. The court noted that powder cocaine does not possess unique visual characteristics; that the General Assembly adopted “a technical, scientific definition of cocaine,” suggesting the need for scientific testimony to identify it; and that the General Assembly provided a statutory procedure for the admission of lab reports regarding controlled substances, perhaps suggesting that laboratory analysis is required. Because Llamas-Hernandez did not overrule Freeman and Fletcher, the scope of the ruling was somewhat unclear: was it limited to powder cocaine, or did its reasoning sweep more broadly?

Ward applied Llamas-Hernandez to prescription drugs, stating that “existing precedent suggests that controlled substances defined in terms of their chemical composition can only be identified through the use of a chemical analysis rather than through the use of lay testimony based on visual inspection.” It also noted that the agent had received no special training in identifying prescription drugs, and that there was little reason to believe that the agent could reliably distinguish between genuine and counterfeit prescription drugs, which the court, based on World Health Organization data, believed to be widespread. Thus, it concluded that the agent’s testimony was insufficiently reliable to be admissible.

A few minutes’ worth of research suggests that most other jurisdictions have come out on the other side of this issue. See, e.g., State v. Clark, 198 P.3d 809 (Mont. 2008) (allowing pharmacist to testify to the identity of prescription medications “by comparing the unique imprint code on each pill, along with the color, make, and shape of the pills, with two national peer-reviewed computer databases”); State v. Carter, 981 So.2d 734 (La. Ct. App. 2008) (finding sufficient evidence to support a conviction where “an expert in forensic chemistry . . . testified that the green pills found by police contained hydrocodone. The pills were identified via visual inspection and comparison with pictures in a book.”); State v. Ohlin, 2007 WL 4106274 (Minn. Ct. App. Nov. 20, 2007) (unpublished) (“[A] forensic scientist . . . inspected the pills and identified them from their markings as containing a controlled substance. There is nothing in the record to contradict this expert testimony or to support a plausible inference that the pills contained anything different from what their markings showed. Nor has [the defendant] shown why it would be improper for an expert witness to rely on pill markings, in lieu of testing, to determine the presence of a controlled substance in a pill found in a prescription bottle and not packaged for sale.”). Of course, that doesn’t show that Ward was wrongly decided, but it does suggest that this area remains controversial. Perhaps the state supreme court will weigh in and clarify the reach of Llamas-Hernandez. Stay tuned for further developments.

Category: Evidence, Uncategorized | Tags: controlled substances, drugs, expert testimony, identification

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