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.

Drug Recognition Experts – DREs and DWIs in North Carolina – Part II

In my previous post, I gave an overview of what Drug Recognition Experts are supposed to be able to detect. Let’s look at the history of the program.

The program was developed in 1979 in the Los Angeles Police Department by two sergeants, Dick Studdard, a traffic officer, and Len Leeds, a narcotics officer. According to the student manual, they undertook independent research by consulting with physicians, enrolling in relevant courses, studying textbooks and technical articles in order to identify a quick an easy way for officers to identify the drugs (other than alcohol) that may cause impairment in drivers.

Unfortunately, no actual experts were consulted in the actual construction of the program and the program has very little scientific rigor (more about that later).

The program received official recognition by the LAPD in 1979, and in the 1980s NHTSA, the National Highway Traffic Safety Administration, and the International Association of Chiefs of Police became involved.

NHTSA is the primary funding agency behind the DRE, also known as the DEC program. IACP, based in Alexandria, Virginia, is the organization that actual administers the program.

The student handbook on DREs claims that “[p]roof of the effectiveness of the DEC program began to be accumulated from the very outset of the program.” But that proof is circular – arrests and convictions are used to claim proof that impairment was proven, when in fact arrests and convictions were probably the consequence of other factors and not an accurate detection of impairment by DREs.

No peer-reviewed studies have ever been conducted in support of the DRE program. And few scientists have ever found the program to be effective. Support for the program has been mostly generated by the IACP and NHTSA, without regard to its scientific reliability, as we’ll explain in future posts.

Drug Recognition Experts – DREs and DWIs in North Carolina – Part I

If you’re arrested for a DWI in North Carolina, the State needs to prove that you were impaired by an impairing substance. Driving while impaired by a medical condition is not, in and of itself, illegal. But driving while impaired by an impairing substance is a violation of NCGS 20-138.1 or related implied consent offenses.

Proving a DWI is far simpler in North Carolina if the impairing substance is alcohol. The state may conduct a breath test or a blood test and produce a BAC or BrAC of .08 or above. This is offered to prove a defendant’s guilt. And while that is not always accurate – the Intox EC/IR II machines combine two technologies – fuel cells and Infrared technologies – which have been known to be flawed for decades – North Carolina’s General Assembly has, through a combination of laws, made it difficult for defense lawyers to attack the validity of the blow.

Proving a DWI that is a result of suspected drug use (either legally prescribed or illegally consumed) is usually more complicated for the State to prove, unless the drug is a Schedule I. If the drug is a schedule I, the State merely has to prove the existence of any amount of metabolites within the blood if the blood was taken at a relevant time after the driving such at the Schedule I substance was consumed before or during the driving.

Providing DWI that is the result of non-Schedule I suspected drug use is the most difficult for the State to prove. Medical professionals fully understand that evidence of drugs in blood is merely shows that, at some point in the past, the person consumed the drug. Medical professionals cannot pinpoint when the drug was consumed.

That’s where the Drug Recognition Expert (someone who is trained in the Drug Evaluation and Classification Program) comes in.

A DRE is a specially trained law enforcement officer – only the best and the brightest are sent to DRE courses – who, it is claimed, can identify:

  1. Whether someone is impaired
  2. Whether that impairment is from a physical defect or from drug consumption
  3. And the classification or identification of the particular drug.

Most states require that DREs be admitted as experts by showing in court that the officer is trained as a DRE and that DRE is a generally accepted field within in relevant the scientific community.

As we’ll explore in greater depth in future posts, Drug Recognition or DEC are not accepted within the relevant scientific community. Opthamalogists, toxicologists, and medical doctors are either unaware, or dismissive of DRE. No leading researcher or expert actually regards DRE as anything other than junk.

DRE is widely regarded within the scientific community as a joke.

Unfortunately, in North Carolina, Rule 702 codifies DRE as an accepted forensic science. That’s because the North Carolina General Assembly has chosen to embrace junk science.

Based on my experience and training…

This video is pretty funny. The vast majority of officers I deal with are good, honest people trying to do a difficult job. But occasionally you hear the phrase “based on my experience and training” one too many times.

Other phrases also crop up surprisingly frequently, driven by case law. For instance, the courts long ago decided that a “spontaneous utterance” was not protected by Arizona v. Miranda. Consequently, you frequently see in police reports the words “spontaneous utterance”. This isn’t to deny that spontaneous utterances have occurred, just to poke a little fun at the repetitious use of little phrases.

Also, a car is never simply a car. It’s almost always a “vehicle.”

Flawed Forensic Science under Review

The Washington Post has an extensive report on various forensic science.

The National Academy of Sciences in 2009 called for, among other things, removing labs and forensic science professionals from control of prosecutors and law enforcement.

In 2011, North Carolina renamed the state lab from the State Bureau of Investigation Crime Lab to the North Carolina Crime Lab, but kept the lab under the auspices of the chief prosecutor of the state in the North Carolina Department of Justice.

One of the problems is that, unlike DNA which was developed by scientists for medical applications and now is the most effective tool in forensic science, most fields of forensic science are not reliable – bite marks, hair or fiber analysis, fingerprints, and ballistics were developed by law enforcement for law enforcement – and the standards, methods, and approach are not about objectivity, but about how to find a perpetrator.

The problems, as Peter Neufeld of the Innocence Project explains, are systemic. Prosecutors have an incentive to dispose of cases expeditiously. Most criminal defense lawyers are not very well trained or conversant in scientific issues.

And, even in North Carolina, many lab technicians who perform the analysis are poorly trained or can’t even meet the basic standards by the certification agencies that oversee the field.

Fingerprint Analysis is Unreliable

Most people get their understanding of forensic science from crime shows, such as CSI, or movies.

The impression that’s given is that forensic science is incredibly accurate and reliable. For instance, most people believe that fingerprinting analysis is a reliable way to determine whether someone touched an item. Or they believe that shoe print analysis can help determine whether someone walked in a particular place.

Such beliefs are fine in a crime drama, where no real lives are at stake.

But in a criminal case – in a courtroom – the belief that fingerprints and shoe prints are reliable forensic tools can be catastrophic.

One of the reasons why such analysis is allowed into a courtroom is that judges are usually ill-equipped to determine whether a particular forensic science is reliable. So they defer to the people trained in that science.

And those people suffer from a separate problem. Having spent weeks, months, or years as a fingerprint analyst, a fingerprint analyst is unlikely to say that his field is unreliable.

Consequently, the very people who testify in a courtroom for the prosecution (and even people testifying for the defense) are same people who will say that their testimony is reliable. It’s a circular pattern that, unfortunately, permits juries – who usually know very little about these subjects – to hear about what is essentially unproven forensic science.

Take fingerprint analysis, which until the advent of DNA, was a major way (in addition to serology/blood typing) that investigators linked a defendant to a crime scene.

The National Academy of Sciences issued a report in 2009 pointing out that the evidence to support the reliability of many techniques, including most kinds of fingerprint analysis, is lacking.

As a result, there has been little rigorous research to investigate how accurately and reliably many forensic science disciplines can do what they purport to be able to do. In terms of a scientific basis, the disciplines based on biological or chemical analysis, such as toxicology and fiber analysis, generally hold an edge over fields based on subjective interpretation by experts, such as fingerprint and toolmark analysis. And there are variations within the latter group; for example, there is more available research and protocols for fingerprint analysis than for bitemarks.

adding that:

In addition to investigating the limits of the techniques themselves, studies should also examine sources and rates of human error, the report says. As part of this effort, more research should be done on “contextual bias,” which occurs when the results of forensic analysis are influenced by an examiner’s knowledge about the suspect’s background or an investigator’s knowledge of a case. One study found that fingerprint examiners did not always agree even with their own past conclusions when the same evidence was presented in a different context.

So the next time you hear about fingerprint analysis, be very skeptical about whether the analysis shows what it purports to show.

City County Bureau of Identification vs. the State Bureau of Investigation

In criminal case in Wake County a jury might hear from agents from at least two state agencies (in addition to other local or national law enforcement agencies). Those two agencies are called the City-County Bureau of Identification (CCBI) and the State Bureau of Investigation (SBI).

Both organizations were created in 1937 by the North Carolina General Assembly. The State Bureau of investigation (SBI) is sort of like a state version of the Federal Bureau of Investigation (FBI) although more limited in scope. The SBI, administratively under the North Carolina Department of Justice, has both field agents who conduct investigations and can make arrests, and a crime lab.

In recent years, the crime lab has come under intense scrutiny after it was reveled that a number of agents had either mischaracterized results or failed to disclose negative results that led to the conviction of people who were otherwise innocent.

(At least one of those people wrongfully convicted – Greg Taylor – on the basis of SBI agents’ misconduct has decided to sue those agents.)

In response to the misconduct by SBI agents, a panel was established to provide recommendations to North Carolina Attorney General Roy Cooper to lead to the improvement of SBI practices and procedures. The Ombudsman released a report designed to provide guidance to the Attorney General with respect to improvements.

The State Bureau of Investigation has published various manuals and procedures for each of the areas that the crime lab performs analysis.

The City-County Bureau of Identification is a different organization, focused solely on Wake County. It provides crime scene assistance to agencies throughout the county, and is housed in the Public Safety Center (also known as the Wake County Jail) on Salisbury Street.

Its field agents go to scenes, collect evidence, and either turn it over to the police agency (Raleigh Police Department, Cary Police Department, and so forth) or send it off to the State Bureau of Investigation for further analysis. Occasionally its evidence is analyzed by other CCBI agents – for instance, computer data may be analyzed by CCBI agents or fingerprint analysis might be completed in-house at the CCBI rather than be sent off to the SBI or FBI for further analysis.)

In addition, until recently, most DWI investigations involved a CCBI agent who operated the Intox EC/IR II device – the breathalyzer – that is used to take breath samples from suspected drunk drivers and spit out a number such as a .08 that can be used at court.

Now, most Intox EC/IR II device operators are the police officers themselves who now have certificates.

Proving a Drug is a Drug

Let’s assume that a police officer spots someone with a bag full of pills. The pills are of different shapes, colors, and sizes. But, based on various information – maybe a confidential tip – the police officer concludes they are controlled substances (drugs) and that the person ought to be arrested for drug possession.

A police officer can arrest on relatively thin evidence – tips, observations, smells, sounds. The police officer’s burden is called “probable cause” which is basically enough evidence – specific observations and facts – to conclude that it’s more probable than not that a crime has occurred.

But in order to convict the person, the prosecutor who gets the case must prove the case beyond a reasonable doubt – so that a jury is entirely convinced and full satisfied that every element has been proven.

How can the police officer, therefore, prove that the pills were in fact controlled substances, and not entirely legal medicines.

Until recently in North Carolina, a police officer would send the pills off to an agency such as the State Bureau of Investigation for examination. Perhaps the SBI agent would test some of the pills to find out whether they were in fact illegal drugs. But in many cases, the SBI agent would use something called the Micromedex, a database containing information about the look, size, and markings on pills.

By matching up the shape of the pills with the identifiers in the Micromedex, the agent could then testify in court as to his “expert” opinion with respect to the kinds of the drugs found on the defendant.

Until recently…

In 2010, the North Carolina Supreme Court rejected this type of expert testimony in State v. Ward. The NC Supreme Court majority opinion stated:

Because the method of proof at issue is not sufficiently reliable for criminal prosecutions, we cannot conclude, as the State argues, that the deficiencies of Special Agent Allcox’s visual identification process only affect the amount of weight the jury assigns to his testimony. Adopting that view would circumvent the fundamental issue at stake, that is, the reliability of the evidence, and would risk a greater number of false positive identifications.

and concluded that:

For the foregoing reasons we conclude that, as the proponent of Special Agent Allcox’s expert witness testimony, the State has not carried its burden of demonstrating the sufficient reliability of his visual inspection methodology. Therefore, the trial court abused its discretion by permitting Special 748*748 Agent Allcox to identify certain evidence as controlled substances based merely on visual inspection as a method of proof. We affirm the Court of Appeals as to the issue before us and remand to that court for further remand to the trial court for additional proceedings not inconsistent with this opinion.

What does this mean in drug cases? It means that the state must show a proper analysis – which in many cases will be a chemical analysis – of the alleged drugs to prove, in fact, that they are drugs. However, North Carolina courts have carved out an exception with regard to marijuana. With regard to marijuana, the distinctive smell and look permits an agent or even a police officer to identify the substance as marijuana to a jury.

Recent Developments in Confrontation Clause Law

The confrontation clause of the United States Constitution provides every defendant to question – in court – his accusers. Accusers is a broad term, including not just the victim, but also anyone who may have said something incriminating about the defendant outside of court.

The confrontation clause is a protection for the defendant, allowing the defendant or his attorney to vigorously question the witness. In 2002, in Crawford v. Washington the Supreme Court invoked the Confrontation Clause to prevent an out-of-court statement from being admitted in court because the out-of-court statement had never been confronted by the defendant.

The Supreme Court said that there are two types of statements. Testimonial statements are those statements made in contemplation of prosecution. For instance, when police are interviewing witness following a crime, that would ordinarily be a testimonial statement. Testimonial statements are not admissible on their own without the opportunity of the defendant to confront the witness.

Non-testimonial statements are other statements – statements not made in contemplation of prosecution. These statements are admissible without violating the confrontation clause. The rationale is that because these statements were not made in contemplation of prosecution, they are more reliable because the person making them wasn’t thinking about how they might appear to a jury. In other words, the person making those statements was probably being truthful because he was making the statement.

The Supreme Court has had to, in subsequent decisions, define whether a statement is testimonial or non-testimonial. The State would like most statements to be ruled non-testimonial so that they can admit them against the defendant without having to bring the witness to court.

In Michigan v. Bryant the Supreme Court ruled two weeks ago that statements by a victim (who later died) to 5 different police officers during their investigation of the shooting that led to his death were non-testimonial. In a blistering dissent, Antonin Scalia accused the majority of misreading and misapplying the facts of the case to permit the admission of the testimony when in fact it should’ve been barred.

How forensic DNA is collected, extracted, and profiled

DNA forensic analysis has come a long way since it was first developed in the early 1980s and commercially available in the late 1980s.  Improvements in collection, quantification, and amplification techniques have meant that forensic technicians – the men and women employed by places like the State Bureau of Investigation – are now able to develop DNA profiles from relatively small amounts of biological evidence collected from a crime scene.

While in the past, a forensic technician might need a quarter-sized droplet of blood from a crime scene in order to produce a DNA profile, these days, forensic technicians can develop DNA profiles from blood left at a crime scene that may be as small as the head of a needle.  In addition, modern forensic DNA techniques allow forensic technicians to develop DNA profiles from touch DNA – biological residue from a person touching or handling something left behind at a crime scene.

What is DNA? DNA is the genetic code that makes us biologically unique.  And none of us shares a DNA profile with anyone else, unless we are identical twins.  (Identical twins have the same DNA.)  Because developing a DNA profile of each person would take years and cost incredible amounts of money, forensic techniques take a very small portion of our DNA – far less than 1 percent – and then compare those DNA markers against the DNA markers found in DNA left behind at a crime scene.

How is DNA from a crime scene collected?  DNA from a crime scene is typically collected as part of a very straightforward process.  A police officer, following a crime, might put an item thought to have been touched by a suspect into a plastic bag to be sent to the crime lab.  Or a forensic technician from the crime lab might come to a crime scene to “swab” (collect DNA) from the walls, furniture, floor, and so forth.  Those swabs are wet with purified water, rubbed over the area of the crime scene, dried, and then placed into bags and labled with information about who collected the DNA or item, and where it was collected.  DNA may be collected from a Defendant by swabbing the inside of the defendant’s mouth or cheek with a sterilized q-tip.

Once the swabs or items are received at the lab, the swabs are wet with purified water (or the items are swabbed at the lab) and then placed into small test tubes.

The first technique used in the forensic analysis is called “quantification.”  The idea behind quantification is to find out whether enough DNA has been collected so that it can be tested.  If not enough DNA has been collected, then no further tests are typically run, and no results are reported.  “Quantification” is used in order to cheaply and efficiently find out whether enough DNA was collected before going forward with the more expensive and time-consuming parts of the forensic analysis.

If enough DNA has been collected, then the sample is “amplified” through a process called polymerase chain reaction (PCR).  PCR uses a primer which essentially causes the rapid and dramatic reproduction of specific parts of the DNA collected.  Think of this process as the equivalent of taking one copy and xeroxing it 100,000 or 1 million times.

Amplification is required because the DNA originally collected is so tiny that analyzing it through scientific instruments is impossible.  Amplification reproduces specific segments called loci (plural of “locus”) of the DNA so that it can be further analyzed to determine its profile.

The next step in the process is called “capillary gel electrophresis”.  The purpose of this process is to make the amplified parts of the DNA (the “loci”) visible to human beings through computerized techniques. The various molecules are stained in the amplified DNA so that each locus has a different color that can be distinguished from other loci.

A forensic analyst uses a syringe (needle) to insert some of the amplified DNA from the test tubes into a gel.  An electric current is run through the gel, which causes various molecules from different loci to move at different speeds.  These molecules move at different speeds because some are larger, and others are smaller.  The smaller molecules will move more quickly.

At the same time, a computer is used to identify the Short Tandem Repeats (STR) at each locus. Most forensic laboratories test 15 separate loci.  For each individual, the result is a STR for each of two alleles at each of the 15 loci.

At any given locus of the 15 tested, you and I might share the same STR for both of our alleles.  Maybe we even share the same STR for our alleles at two loci.  However, as we look at 3, 4, 5, 6 and up to 15 loci, differences will appear so that my DNA profile will be different from yours.

In a common criminal situation, evidence left behind at a crime scene may produce a partial profile.  Perhaps forensic analysts aren’t able to develop a full 15-loci profile because not enough DNA is left behind.  That may reduce the scientific certainty of the conclusions the forensic analyst can give.

However, forensic analysts can frequently give a very conclusive result with as little as 6 loci reporting from a DNA profile. If a defendant’s profile matches 7 loci of a partial DNA profile produced from a piece of evidence at a crime scene, a forensic analyst may be able to say there is 1 in 10,000,000,000 (or greater) chance that the person is not the defendant.

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