Expert Testimony in North Carolina – Goode, Howerton, Ward

Whether an expert can testify as an expert in a criminal trial is a decision normally made by the judge. In the United States there are generally two tests – some states use the Daubert test. Others use the Frye test. North Carolina has its own approach.

Daubert requires the judge to be a gatekeeper, and asks the judge to evaluate a number of factors before admitting expert testimony:

  • Has the scientific theory or technique been empirically tested?
  • Has the scientific theory or technique been subjected to peer review and publication?
  • What is the known or potential error rate?
  • What is the expert’s qualifications and stature in the scientific community?
  • Can the technique and its results be explained with sufficient clarity and simplicity so that the court and the jury can understand its plain meaning?

The Frye test asks whether the scientific principle at issue is generally accepted in the scientific community:

Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while the courts will go a long way in admitting experimental testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.

In North Carolina, we use a balancing test that is less rigorous than the Daubert method used in federal courts. In State v. Goode, 4341 NC 513 (1995), the North Carolina Supreme Court, in citing Daubert, announced a standard different from Daubert that asks whether the expert testimony is sufficiently reliable to be admitted in court. Once the trial court has determined whether the method of proof is sufficiently reliable as an area for expert testimony, the court then must ask whether the witness testifying at trial is qualified as an expert to apply this method to the specific facts.

Finally, the court must be satisfied that the person testifying as an expert is “better qualified than the jury” to draw expert conclusions from the facts that were observed.

The test in Goode was elaborated upon in Howerton v. Arai Helmet, Ltd., 358 NC 440, (2003), which expanded upon the importance of the expert’s testimony being relevant to the issue at hand and, importantly, assisting the trier of fact (jury or judge in a bench trial) in drawing conclusions from the facts.

The Court concluded in Howerton that:

Based on our review of these well-settled principles of North Carolina law governing the admissibility of expert testimony under North Carolina Rule of Evidence 702, we are satisfied that our own approach is distinct from that adopted by the federal courts. Contrary to the conclusion of the Court of Appeals, it is not “eminently clear” that North Carolina adopted the Daubert standard.

In State v. Ward, 694 SE 2d 738 (2010), the Supreme Court again looked at the admissibility of expert testimony, this time in a drug case involving the identification of certain pills via a Micromedex publication used by doctors to identify pills based on the shape, color, and markings.

In Ward, the Court noted that “a diverse committee of forensic experts, scientists, and members of the legal community, conducted several years of research and concluded that the pervasive sentiment was that “[t]he forensic science system, encompassing both research and practice, has serious problems that can only be addressed by a national commitment to overhaul the current structure that supports the forensic science community in this country.”

The Court also cited the landmark “Strengthening Forensic Science in the United States,” published by the National Academy of Sciences in 2009 (pdf).

The Court reiterated the three-part test, including the third part of the test requiring that the “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.”

In a subsequent post, we will look at how expert testimony relates to the HGN and DRE testimony that is common in may Raleigh DWI cases.

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Damon Chetson

Damon Chetson is a Board Certified Specialist in State and Federal Criminal Law. He represents people charged with serious and minor offenses in Raleigh, Wake County, and the Eastern District of North Carolina. Call (919) 352-9411.