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NC Supreme Court Clarifies Expert Opinion Testimony Standards

Howard Kurtz - 9/13/2016

NC Supreme Court Clarifies Expert Opinion Testimony Standards of Admissability: Impact on Criminal and DWI Defense

This past June, the North Carolina Supreme Court settled controversy in North Carolina courts as to what is classified as “expert” testimony in State v. McGrady, __ N.C.___ (June 10, 2016). A little history lesson for folks who may not know, back in 2011, the state legislature amended our North Carolina Rules of Evidence, specifically Rule 702(a), which dealt with expert opinion testimony. Even though it was amended to line up with the federal rules of evidence, there was still an open question as to how strictly the courts need to interpret and evaluate expert witness testimony. Before this June, the term “expert” was rather loosely interpreted, and courts would allow in a wide variety of testimony from “experts” because it could be deemed helpful to the trier of facts. All that changed with State v. McGrady, and North Carolina is now known as a Daubert state. (While some of our fancier counterparts in other states pronounce it “Dow-behr,” here in North Carolina, you’ll get a funny look if you don’t pronounce it like “Daw-bert”). Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), is the case that created a three-part test for judges to consider when contemplating letting in certain expert testimony.

You may be thinking, “Why should I even care whether North Carolina is a Daubert state or not?” The short answer is that criminal defendants can benefit from a higher level of scrutiny being applied to admissibility of expert testimony. Evidence that might have been allowed into trial testimony before this change may no longer hold up to the requirements laid out by the court. A great example of this scenario leads us to the realm of Driving While Impaired (DWI) cases. Officers testifying in court typically have a high school diploma, and may have taken classes at a local community college to become a police officer. In order to perform Standardized Field Sobriety Tests (SFSTs), they go through an additional training program that is only 32 hours in length. Further, officers might not have taken any upper level college coursework on chemistry, and yet, seek to be admitted to testify as an expert in the Horizontal Gaze Nystagmus (HGN) test (a test officers use to determine a person’s level of intoxication) without fully understanding the science behind it or even being able to cite the studies that were performed to validate this method. Basically, all they can testify about is how the results in any given subject differed from what they were taught in SFST School. Daubert challenges to expert testimony can help a DWI defendant if the officer can’t testify as to the scientific background or importance of how many clues were exhibited…preventing the trier of fact from gaining a clearer understanding of the significance of the tests a defendant was asked to perform on the side of the road. The trial judge now has a much larger role in serving as a screener or “gatekeeper” to determine which testimony can come in, and more importantly, which testimony doesn’t pass muster of the requirements set out by the McGrady court.

So, what are these requirements?  Rule 702(a) reads that:

(a)        If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion, or otherwise, if all of the following apply:

(1)        The testimony is based upon sufficient facts or data.

(2)        The testimony is the product of reliable principles and methods.

(3)        The witness has applied the principles and methods reliably to the facts of the case.

What this means is that there is a higher degree of skepticism placed on the trial testimony to be offered by the potential expert witness, and the trial court now has to screen testimony for reliability and methodology used, educational background and experience of potential experts, and most importantly, application of all those things to the case at hand. Gone are the days of allowing testimony to come in if it is deemed potentially relevant, and erring on the side of admissibility. Now, trial judges have to make sure that the testimony to be given lines up with this clarification of the rules.

However, in spite of the positives for criminal defendants, especially DWI defendants, McGrady does cut both ways. In McGrady, the DEFENSE was prevented from entering testimony into evidence from an expert that he sought to include on the grounds that he lacked a more specialized knowledge that is typically garnered through education and professional work. The court noted that the expert might or could have been qualified in different law-enforcement techniques or investigations, but ultimately, he was not qualified to provide expert testimony as to the functions of the sympathetic nerve system within the body, even though he may have practical knowledge or have read up on the subject. It also appears from McGrady that the trial court’s determination is going to be given quite a bit of deference as to their opinion on the admissibility of evidence, and a review of their rulings will be evaluated by appellate courts on the “abuse of discretion” standard, which is a very high standard to overcome.

The end result is that criminal defendants can potentially benefit from an attorney objecting to certain testimony at trial offered by the State on the grounds that the officer testifying to the subject matter lacked a sufficient foundation from which he can provide a helpful “expert” opinion to the court. If you are charged with a crime, it is important to have a competent, knowledge attorney with you to help you navigate these difficult evidentiary issues. Call Kurtz & Blum today for a free consultation!



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