I’m pleased to announce a new collaboration between the Public Defense Education team at the School of Government and Indigent Defense Services. I frequently get questions from defense lawyers about expert witnesses. Where do you find experts? How do you know which expert is right for your case? How do you go about getting funding for one in your case? How much information should I give the expert? Sarah Olson is of course the guru in this area, and she constantly provides defense attorneys with assistance on expert witness issues. As Forensic Resource Counsel for IDS, she teaches, writes, and advises on all things forensic. Her website is a wealth of information on experts, including a database of expert witnesses, sample motions for expert funds, and the latest news and developments in forensic disciplines. Together with Paul Bonner in the IT department of the SOG, we have put together a short video discussing the basic mechanics of getting and working effectively with an expert witness (Well, Paul put it together. Thanks again for his techno-wizardry!). If you are already comfortable with the process of working with experts, you may not learn much new. But for readers who are new to working with experts or just need a refresher, it provides a succinct discussion on best practices. Check it out on Vimeo here. Email us with any feedback at firstname.lastname@example.org and email@example.com.
Tag Archives: experts
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 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 →
I previously posted (here) about impeaching a witness with a prior inconsistent statement. In this blog post I’ll address impeaching with evidence of bias. As our blog readers know, a witness may be impeached with evidence that he or she is biased because of, for example, affection for or dislike of a party or self-interest in the case. The case law is filled with examples. See, e.g., State v. Perkins, 345 N.C. 254, 280-82 (1997) (proper to cross-examine a defense forensic psychologist about whether he was biased against the State); State v. Wilson, 335 N.C. 220, 226 (1993) (proper for the prosecutor to ask whether the defendant had paid the witness to testify); State v. Bullock, 154 N.C. App. 234, 240-41 (2002) (proper to cross-examine a defense witness about whether she previously had an altercation with the victim); State v. Clark, 128 N.C. App. 722, 725-26 (1998) (new trial; the trial court excluded testimony of a defense witness, Mary, who would have testified in part that a State’s witness, Leowana, told her that Leowana’s family was attempting to frame the defendant); State v. Frazier, 121 N.C. App. 1, 14 (1995) (prosecutor properly asked a defense witness if she would “do anything” to get a not guilty verdict).
With other impeachment methods, figuring out whether extrinsic evidence may be used can be tricky. Not so with bias. The rule is simple: Extrinsic evidence may be used to impeach regarding bias. Robert P. Mosteller et al., North Carolina Evidentiary Foundations 6-35 (2nd ed. 2006); see, e.g., State v. Whitley, 311 N.C. 656, 663 (1984) (dicta); State v. Lytch, 142 N.C. App. 576, 586 (2001) (proper to use extrinsic evidence to show defense witness’s bias), aff’d, 355 N.C. 270 (2002) (per curiam); State v. Rankins, 133 N.C. App. 607, 610 (1999) (reversible error to preclude the defendant’s witness who would testify that the defendant’s accomplice, a prosecution witness, said he had made a deal with the State). However, before offering extrinsic evidence of bias, a party must, on cross-examination, bring the impeaching evidence to the attention of the witness. Evidentiary Foundations at 6-35; Whitley, 311 N.C. at 663. If the witness admits the relevant facts, the judge may exercise his or her discretion under Rule 403 to exclude or limit the use of extrinsic evidence. Evidentiary Foundations at 6-35. However, if the witness denies the impeaching facts, the opponent may impeach with extrinsic evidence. Id.
When a State’s witness has pending charges this line of impeachment can be a goldmine. The defendant may be able to impeach with evidence that the witness has discussed, has been offered, or has accepted a deal with the State for a reduction of charges, reduced punishment, etc. in exchange for his or her testimony. This is a proper basis for impeachment and the defendant should not be limited in exploring it. State v. Rankins, 133 N.C. App. 607, 610-11 (1999) (reversible error to so limit the defendant). This rule applies to any State’s witness, and denial of the right to impeach on these grounds implicates constitutional confrontation rights. State v. Prevatte, 346 N.C. 162, 163 (1997) (following Davis v. Alaska, 415 U.S. 308 (1974), and ordering a new trial where the State’s principal witness was under indictment and the court refused to allow the defense to cross-examine the witness about the charges and whether he had been promised or expected anything in exchange for his testimony); State v. Hoffman, 349 N.C. 167, 179-81 (1998) (following Davis and holding that the defendant should have been allowed to cross-examine the State’s witness about his pending criminal charges; noting the constitutional dimension of this error but concluding that it was harmless beyond a reasonable doubt).
Lawyers often try to impeach the other side’s experts with evidence of bias. One common tactic is to ask the expert about compensation for his or her testimony. This is permissible, State v. Lawrence, 352 N.C. 1, 22 (2000); State v. Atkins, 349 N.C. 62, 83 (1998), even if the expert is court appointed and paid with state funds. Lawrence, 352 N.C. at 22-23. However, a party may not abuse, insult, or degrade an expert or attempt to distort the expert’s testimony under the guise of impeachment. State v. Sanderson, 336 N.C. 1, 11-15 (1994) (such conduct constituted prejudicial error). It is proper to impeach an expert with the fact that his or her license has been revoked, State v. Page, 346 N.C. 689, 697-98 (1997), and by probing the basis of the expert’s opinion. State v. Morganherring, 350 N.C. 701, 729 (1999) (prosecutor properly cross-examined the defendant’s expert about his familiarity with the sources upon which he based his opinion); State v. Gregory, 340 N.C. 365, 409-10 (1995) (prosecutor properly questioned a defense expert about his reasons discounting accomplices’ statements that were inconsistent with the defendant’s statement where expert had previously stated that when performing a psychiatric evaluation “you rely on as many records as you can get”). Such impeachment however is not without limitation. See, e.g., State v. Lovin, 339 N.C. 695, 713-714 (1995) (error to allow the State to cross-examine defendant’s mental health expert by reading portions of an article that denigrated clinical psychologists; the witness had not read the article and there was no showing of its validity).
In terms of trial practice, there are several criminal pattern jury instructions on point including:
- N.C.P.I. Crim—104.20 (testimony of interested witness);
- N.C.P.I Crim—104.21 (testimony of witness with immunity or quasi-immunity); and
- N.C.P.I Crim—104.30 (informer or undercover agent).
Upon request and in appropriate circumstances the trial judge should give these instructions.
Tucked into the 2013 North Carolina budget bill is a provision imposing new court costs for expert witnesses who testify about chemical or forensic analyses at trial. Specifically, the new law (sec. 18B.19 of the budget bill) provides that upon conviction the trial judge must require a convicted defendant to pay $600 in costs if a state or local government crime lab employee testified at trial as an expert witness about a specified chemical or forensic analysis. The costs support the state crime lab or go to the local government unit that operates the lab to be used for law enforcement. There’s really no question about why this provision is in the budget bill. In the wake of Melendez-Diaz, crime labs have been stretched to produce forensic analysts in court while keeping up with the testing work. This provision is a legislative response to that pressure. But is it constitutional?
Citing United States v. Jackson, 390 U.S. 570 (1968), defense lawyers may argue that the statute impermissibly chills a defendant’s confrontation rights. See generally Richard Friedman, Potential Responses to the Melendez-Diaz Line of Cases at 10 (suggesting that cost recoupment for laboratory analysts raises constitutional issues). In Jackson, the Court held unconstitutional a provision of the Federal Kidnapping Act that authorized the death penalty if a jury recommended it, but contained no procedure for imposing death on a defendant who waived the right to a jury trial or pleaded guilty. The Supreme Court found that the death penalty provision impermissibly chilled the defendant’s Fifth Amendment right not to plead guilty and Sixth Amendment right to demand a jury trial. It stated: If a “provision ha[s] no other purpose or effect than to chill the assertion of constitutional rights by penalizing those who choose to exercise them, then it would be patently unconstitutional.” 390 U.S. at 581. The Court continued, explaining that if, however, the statute has a legitimate government objective, that objective cannot be pursued “by means that needlessly chill the exercise of basic constitutional rights.” Id at 582. In the latter context, the question is whether the chilling effect is “unnecessary and therefore excessive.” Id. The Court found that the provision at issue was unconstitutional because although the government had a legitimate purpose—mitigating the severity of capital punishment—that goal could have been achieved without penalizing defendants who plead not guilty and demand a jury trial.
In later decisions, the Court has declined to adopt a broad reading of Jackson. In Chaffin v. Stynchcombe, 412 U.S. 17 (1973), for example, it noted that “Jackson did not hold . . . that the Constitution forbids every government-imposed choice in the criminal process that has the effect of discouraging the exercise of constitutional rights.” Id. at 30-31 (rejecting a claim by a defendant who received a harsher sentence on retrial than in his original trial; the defendant’s rights were not impermissibly chilled because the threat of a harsher sentence was speculative and simply another of the difficult choices which were an “inevitable attribute” of our judicial system). And in Fuller v. Oregon, 417 U.S. 40 (1974), the Court rejected a defendant’s argument that Jackson mandated invalidation of an Oregon recoupment statute requiring indigent defendants who subsequently acquired financial resources to repay their legal defense costs. The defendant had argued that knowing he may later be required to repay his legal costs could have impelled him to decline the services of an appointed attorney, and thus chilled his constitutional right to counsel. Rejecting this argument, the Court reasoned that since the statute was tailored to impose an obligation on only those who were able to repay costs, assessing costs on these defendants was not unnecessary to achieve its governmental purposes nor was it likely to substantially chill a defendant’s rights. Other decisions have declined to extend Jackson. See, e.g., Corbitt v. New Jersey, 439 U.S. 212, 218 (1978) (“cases . . . since Jackson have clearly established that not every burden on the exercise of a constitutional right, and not every pressure or encouragement to waive such a right, is invalid”).
My research hasn’t turned up any case law addressing the Jackson argument in relation to a statute similar to the new NC provision. However, many jurisdictions have general cost recoupment statutes. These statutes provide for recoupment of the “costs of prosecution” or “reasonable costs of prosecution,” and have been interpreted to allow for, among other things, the cost of testimony by government witnesses. See, e.g., People v. Palomo, 272 P.3d 1106, 1111 (Colo. Ct. App. 2011) (costs awarded for state technicians who testified as experts in ballistics, gunshot residue, and fingerprints). Jackson “chilling” arguments have not succeeded as to these statutes. United States v. Palmer, 809 F.2d 1504, 1506 (11th Cir. 1987); United States v. Wyman, 724 F.2d 684, 688 (8th Cir. 1984); United States v. Chavez, 627 F.2d 953, 955 (9th Cir. 1980); United States v. Fowler, 794 F.2d 1446, 1449 (9th Cir. 1986); United States v. Escobar, 1987 WL 31141, *5-6 (S.D. Cal. Sept. 30, 1987) (unpublished); Com. v. Coder, 415 A.2d 406, 408 (Pa. 1980); People v. Estate of Scott, 363 N.E.2d 823, 824 (Ill. 1977); King v. State, 780 P.2d 943, 958 (Wyo. 1989); State v. Marinucci, 321 N.W.2d 462, 467 (N.D. 1982). But see United States v. Glover, 588 F.2d 876, 878-79 (2d Cir. 1978) (per curiam) (although upholding a discretionary “costs of prosecution” provision in 28 U.S.C. § 1918(b), the court suggested that a mandatory provision might be unconstitutional in that it might chill constitutional rights).
However, the new NC law isn’t a general cost recoupment statute. Central to the courts’ analyses in the cases rejecting Jackson chilling arguments as to general cost recoupment statutes is their legitimate purpose: recovering a portion of prosecution expenses. Because the NC statute applies only to the prosecution’s forensic experts, defense lawyers might argue that the statute has no legitimate purpose other than to chill the assertion of newly recognized confrontation rights. That, of course, is categorically unconstitutional under Jackson. Assuming that it can be credibly argued that the statute has another valid objective (such as cost recoupment, an assertion that finds support in the statute’s provision regarding allocation of funds), the analysis shifts to whether the undeniable chilling effect on confrontation rights is—in the words of Jackson—“unnecessary.” Defense lawyers may argue that as in Jackson, the legitimate objective of supporting the crime labs can be achieved in ways that do not penalize defendants for exercising their constitutional confrontation rights. The State might respond by arguing, among other things, that the $600 cost is too low to rise to the level of a constitutional impediment and that more neutral general cost recoupment statutes have been held constitutional even though they impose a greater burden on the defendant’s rights.
Those are my musings for now. I’m still thinking about the issue and I’d appreciate any wisdom you have.
In State v. Cooper, issued last week, the Court of Appeals reversed the defendant’s conviction for first-degree murder of his wife and ordered a new trial. The case has drawn considerable media attention; recent news reports indicate that the State intends to petition the state Supreme Court for review. This blog post focuses on one aspect of the decision by the Court of Appeals—the constitutional limits on discovery sanctions against the defendant, which previous North Carolina decisions had not closely examined.
In Taylor v. Illinois, 484 U.S. 400 (1988), the U.S. Supreme Court considered the appropriateness of sanctions against the defendant for discovery violations. The Court recognized that the Compulsory Process Clause of the Sixth Amendment gives defendants the right to present a defense. The Court then found that preclusion of a defense witness’s testimony as a sanction for a discovery violation may violate this right (rejecting the State’s argument that a discovery sanction would never violate the right to present a defense) but that preclusion is not automatically a violation (rejecting the defendant’s argument that preclusion would never be an appropriate sanction). The Court declined to announce a “comprehensive set of standards to guide the exercise of discretion in every possible case” (id. at 414), but it provided some direction about when preclusion, perhaps the most drastic sanction against the defense, may be permissible. In upholding the sanction imposed by the trial court, the Court stated that this “case fits into the category of willful misconduct in which the severest sanction is appropriate.” Id., 484 U.S. at 417.
In Cooper, the appropriateness of discovery sanctions against the defendant arose in connection with evidence obtained from the defendant’s laptop computer. Forensic examiners for the State testified that they had recovered temporary internet files from the defendant’s laptop, which showed that the day before his wife’s death someone had conducted a Google map search from the defendant’s home to the place where his wife’s body was later found. In response, the defendant attempted to call an expert to testify that the internet files had been planted, but the State objected that the expert did not have sufficient training and experience to give this opinion and the trial court allowed the expert to give only general testimony about the ease with which computer files could be altered or planted. The defendant immediately located a second computer expert, who reviewed the first expert’s work and was prepared to give a similar opinion. The State objected to the second expert, however, arguing that the defendant had violated the discovery statutes by failing to list the second expert on his witness list and failing to provide a copy of the second expert’s report and qualifications to the State before trial. The trial court agreed and precluded the second expert from testifying as a sanction for the discovery violation. As a result, the defendant was unable to present any expert testimony that the Google map files were corrupted or tampered with. The Court of Appeals reversed, finding among other things that the trial court erred by precluding the second expert from testifying as a discovery sanction. (The Court of Appeals also found merit in the defendant’s arguments that the trial court erred by limiting the first expert’s testimony and by denying the defendant’s motion to compel information about FBI computer protocols used in analyzing the defendant’s computer.)
Relying on Taylor v. Illinois and other decisions, the Court of Appeals in Cooper recognized that the sanction of preclusion against the defendant should be reserved for the most serious discovery violations. The Court found that the defendant sought out a second expert only after the State objected, for the first time at trial, to the qualifications of the defendant’s first expert. The defendant was not seeking a tactical advantage, and the record showed no willful misconduct. In finding the preclusion sanction disproportionate to the alleged discovery violation, the Court considered the fundamental nature of the right to present a defense, the importance of the excluded testimony to the issues in the case, and the minimal prejudice to the State by a lesser sanction, such as a continuance or recess. The Court concluded that the trial court abused its discretion in imposing the “harsh sanction” of preclusion. The Court found in the alternative that the sanction violated the defendant’s rights under the United States and North Carolina constitutions.
Some North Carolina decisions, without discussing constitutional considerations, have taken a similar approach in assessing the appropriateness of sanctions, examining the seriousness of the violation and weighing it against other interests. For example, in State v. Lane, 365 N.C. 7 (2011), in which the court upheld the trial court’s exclusion of the defendant’s expert testimony, the defendant failed to provide a report of his expert to the State despite repeated requests, orders by the court, and extensions of time to produce the report. The trial judge also found that the expert’s testimony was irrelevant. In State v. McDonald, 191 N.C. App. 782 (2008), the court upheld the trial court’s exclusion of two of four defenses for the defendant’s failure to give any notice of defenses despite repeated motions by the State. The defendant’s counsel, who had substituted into the case, professed not to have been served with any of the motions, but the State produced four or five motions, some of which had been served on counsel. The court found that the two excluded defenses would have required substantial, unanticipated preparation by the State. In State v. Gillespie, 180 N.C. App. 514 (2006), aff’d as modified, 362 N.C. 150 (2008), the Court of Appeals found that the preclusion sanction imposed against the defendant exceeded constitutional limits, but on appeal the Supreme Court reversed the sanction on statutory grounds and found that it was unnecessary for the Court of Appeals to have reached the constitutional issues.
Some North Carolina decisions have upheld preclusion sanctions for what appear to be lesser violations, but the results may be explainable by other aspects of those cases. See State v. Pender, ___ N.C. App. ___, 720 S.E.2d 836 (2012) (defendant not entitled to jury instruction on involuntary manslaughter based on imperfect self-defense where defendant did not provide State with notice of intent to assert self-defense; appellate court concluded in alternative that evidence was insufficient to support an instruction so any error in precluding defense was harmless); see also State v Leyva, 181 N.C. App. 491 (2007) (trial court did not abuse discretion in denying defendant’s request to allow him to call expert on reliability of confidential informants whom defendant failed to include on witness list; appellate court rejected defendant’s claim that he needed expert because of officers’ testimony about reliability of informant, finding that potential testimony was not required by interest of justice).
Ultimately, the best protection against discovery sanctions for both the defendant and the State is to use their best efforts to comply with discovery requirements. The cases suggest an additional caution for defense counsel. If the trial court is considering discovery sanctions against the defendant, defense counsel should raise any constitutional issues with the trial court; otherwise, the appellate court may decline to consider those issues on appeal. See State v. McDonald, 191 N.C. App. at 785 (so ruling).
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.