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
Tag Archives: expert witnesses
There seem to be fewer and fewer reported decisions about criminal discovery in North Carolina. A recent North Carolina Supreme Court decision finding a discovery violation by the prosecution, State v. Davis (Apr. 15, 2016), made me wonder why. This post reviews the evolution of North Carolina’s criminal discovery laws, which has brought relative calm to this area of law, along with the decision in Davis, which deals with a recurring issue about disclosure of expert opinion. Continue reading →
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.
Legal Expert Witnesses
The jury in the John Edwards case is still deliberating. Although I haven’t followed the case closely, I found very interesting one evidentiary ruling that took place during the trial. Recall that the case concerns almost a million dollars that two of Edwards’ friends provided to pay the expenses of, and to hide, Edwards’ pregnant mistress during Edwards’ presidential campaign. The issue is whether the money was a campaign contribution under federal law. If so, Edwards failed to report it. Edwards contends that the money was a personal gift, and that he would have wanted to hide his mistress from, for example, his wife whether or not he was running for president.
During the defense case, Edwards sought to call Scott Thomas, a former Federal Elections Commissioner. According to this news story, Thomas was expected to testify “that the payment of medical and other expenses of a candidate’s mistress isn’t a campaign-related expense.” And according to this piece, he testified during voir dire that the donations “did not qualify as federal campaign contributions under existing federal law.” United States District Judge Catherine Eagles – a former North Carolina superior court judge – excluded the testimony, apparently on the grounds that federal election law was not so complicated that the jury needed Thomas’s assistance to understand it, and that the testimony was an improper opinion akin to a closing argument.
The federal cases that I was able to find quickly suggest that Judge Eagles’ ruling was proper. See, e.g., United States v. Lupton, 620 F.3d 790 (7th Cir. 2010) (trial judge properly excluded testimony of legal expert about lawfulness of defendant real estate broker’s conduct in negotiating kickbacks for himself in connection with the sale of a building; the only legal expert in a federal courtroom is a judge); United States v. Stewart, 433 F.3d 273 (2nd Cir. 2006) (trial judge properly “prevented a securities law expert from testifying about the legality of [the defendant’s] trade” because “an opinion that purports to explain the law to the jury trespasses on the trial judge’s exclusive territory”). There may be contrary cases out there; if you know of them, please let me know or post a comment.
What does state law say about the subject of expert legal testimony? Here are a few North Carolina cases that bear to varying degrees on the issue:
- State v. Linney, 138 N.C. App. 169 (2000). Prejudicial error to allow clerk of court to testify that the defendant, an attorney, committed a breach of fiduciary duty in connection with his handling of an estate. An expert may not testify that a legal standard has or has not been met. That is a determination to be made by a properly instructed jury.
- Norris v. Zambito, 135 N.C. App. 288 (1999). Trial court properly declined to consider an affidavit concluding that officers were negligent in their pursuit of a suspect. It is the province of the court to determine the law and to instruct the jury on it.
- Smith v. Childs, 112 N.C. App. 672 (1993). Even in a legal malpractice action, a legal expert witness “is not allowed to either interpret the law or to testify as to the legal effect of particular facts,” as “[a]llowing expert testimony on these matters would amount to a jury instruction on the applicable law, thereby improperly invading the province of the court.”
- HAJMM Co. v. House of Raeford Farms, Inc., 328 N.C. 578 (1991). Expert witness testified that there was a fiduciary duty between two parties and that one party breached that duty. The testimony was improper because it concerned a legal conclusion rather than a fact.
Of course, none of the foregoing completely precludes the use of legal expert witnesses. There may be circumstances, such as in connection with ineffective assistance of counsel claims, in which testimony from a legal expert witness is essential to establish a standard of care. And, footnote 12 of Connick v. Thompson, __ U.S. __, 131 S.Ct. 1350 (2011), refers with apparent approval to the testimony of a criminal law expert on a Brady issue. But it does seem that testimony to the effect that the defendant’s conduct was lawful or did not violate a particular statute is generally improper.
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 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.
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.
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 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.”
The Budget and Court-Appointed Experts
A Chicago Tribune article, available here, states that an Illinois public defender recently moved to prohibit the state from seeking the death penalty against her client because the state does not have enough money to pay for the expert witnesses that she believes she will need at the penalty phase of the trial. Apparently, Illinois has a fund specifically for expert fees in capital cases, and the fund for the fiscal year has run dry with several months left to go. The public defender says that the experts she needs are “fed up” and refuse to accept more capital cases. The prosecution opposes the motion, and there’s been no ruling yet. I’ve blogged previously about the financial crisis and the death penalty — here — but the impact of the financial crisis on expert witnesses is a new angle, one with implications beyond the capital context. Could defense lawyers in North Carolina make a similar argument?
The short answer is, I doubt that such an argument would be viable now, but depending on what happens with the state budget, it could become so in the next few years. The Office of Indigent Defense Services pays for experts in cases involving indigent defendants, which is a huge proportion of all defendants in serious cases, including virtually all capital defendants. IDS doesn’t have a separate fund for experts, or even for capital cases — it has a single pot of money that it uses to pay experts, investigators, and court-appointed lawyers, in capital and non-capital cases alike. (IDS has a separate pot of money that it uses to pay public defenders.) To give a sense of scale, for the fiscal year ending in 2009, that fund contained about $85,000,000.
At the end of each fiscal year that ended in calendar years 2002 through 2006, the fund was millions of dollars in debt — often in the $5,000,000 to $10,000,000 range — meaning that all the money was spent and there were still unpaid bills outstanding from lawyers and experts. The result was that bills submitted by lawyers or experts in the last month or two of the fiscal year weren’t paid until the beginning of the next fiscal year. In the most recent two fiscal years, those ending in 2007 and 2008, the fund ended the year with about a half-million dollars in debt, which was small enough relative to the overall size of the fund that there were no appreciable delays.
IDS says that there will be a shortfall of about $7,000,000 at the end of this fiscal year — the agency’s talking points are here — meaning about six weeks’ worth of delays. That’s comparable to what we saw from 2002 through 2006, and still far short of what the Illinois public defender claims is happening there, where it sounds like delays for experts have reached four months. I doubt that many North Carolina courts would be receptive to the argument that it’s impossible to find an expert who will work in the face of a possible six week delay in payment.
But given the budget crisis, could we see longer delays in the next year or two? Absolutely. I have no special expertise at reading budget documents, but I’ve looked at both the governor’s recommended budget and at the budget passed by the Senate. Both seem to recommend about $10,000,000 more for IDS in the next fiscal year, which IDS projects will leave about a $7,000,000 shortfall. If that translates into six weeks of delay, that’s not likely to be a constitutional crisis. (Which isn’t to say that lawyers or experts will, or should be, happy about it.) But it looks like the governor recommends basically flat spending for the following fiscal year, while the Senate budget actually recommends a substantial reduction in spending. If the demand for IDS payments continues to grow — as it has in every prior year — and the agency receives a budget reduction, the situation might be much more serious. Payments could be delayed by several months, as they apparently are in Illinois, and that really might start to give experts — and thus the courts — pause. Alternatively, IDS could reduce hourly rates for lawyers and/or limit experts’ fees, steps that carry their own legal and political risks.
Further Update: The court has reissued an opinion in this case. On the issue discussed below, it is very similar — at a minimum — to the original opinion.
Update: As of April 1, 2009, the Court of Appeals has withdrawn this opinion. I’ll post again when the new opinion comes out.
The Court of Appeals decided four published cases yesterday, and all of them are interesting. (You can read them all here.) But I want to call particular attention to State v. Streater, in which the defendant was convicted of first-degree rape and first-degree sex offense against his girlfriend’s young daughter. The state alleged that the defendant engaged in vaginal and anal intercourse with the victim while her mother was at work. The defendant denied the charges.
Apparently, the victim told her aunt what happened, the aunt took the victim to DSS to make a report, and DSS, among other things, had a pediatrician examine the girl. The doctor found several vaginal abnormalities suggestive of abuse, but found that the girl’s anal opening was normal. At trial, the prosecutor and the doctor had the following exchange:
Q: Based on the history that you received from [the victim], potentially repeated penetration of the defendant’s penis into the anal area, would you find that inconsistent with your medical findings of no trauma or would you find that consistent with it?
A: I think it was consistent with the findings. She may not, despite having been anally penetrated, she may not have had any physical findings. In many cases it is common to have a normal exam even after an allegation of physical sexual abuse in that area.
After he was convicted, the defendant appealed, arguing that the above-quoted testimony was inconsistent with the North Carolina Supreme Court’s holding in State v. Stancil, 355 N.C. 266 (2002), that “[i]n a sexual offense prosecution involving a child victim, the trial court should not admit expert opinion that sexual abuse has in fact occurred because, absent physical evidence supporting a diagnosis of sexual abuse, such testimony is an impermissible opinion regarding the victim’s credibility.” The Court of Appeals agreed, and reversed the defendant’s conviction for first-degree sex offense.
This strikes me as a very close case, though the court didn’t seem to think so. The doctor didn’t testify that abuse had, in fact, occurred. He just said that the girl’s allegations were “consistent” with his findings. Imagine that he had said, instead, “well, my findings are not inconsistent with abuse, although they certainly don’t prove abuse. Children heal quickly and it is not uncommon for children who have been abused to have no physical manifestations of the abuse after a week or two.” That would be unquestionably relevant and admissible — and I think that’s the essence of his testimony. As I read the case, I suspect that the Court of Appeals was at least as concerned about the question, which needlessly referred to “the history you received from the [the victim],” as it was about the answer, although the answer certainly could have been phrased more carefully, too.
The defendant’s first-degree rape conviction was affirmed, so from the state’s perspective, this may be a no-harm-no-foul reversal, but it’s certainly a cautionary tale about framing your questions carefully and about preparing your experts to testify carefully in areas where there are a lot of legal pitfalls.
To read more about evidence issues in child victim cases, take a look at SOG faculty member Jessica Smith’s excellent publication here.