Choosing Your Strategy
by: Ksali • April 13, 2011 • no comments
So you've learned that the State intends to introduce scientific evidence. And you know you want to challenge it. Good so far. But now what? How do you do it? It turns out you have a few options and your particular path will be determined by your objective.
Pretrial or mid-trial?
One way to challenge scientific evidence is through a pretrial motion. Under ORS 135.037, you have a right to a pretrial omnibus hearing to determine issues including "[s]uppression of evidence." "Suppression" has been interpreted quite broadly for purposes of another statute (ORS 138.060, governing the State's right to take interlocutory appeals); at least in that context, it's not limited to constitutionally based suppression motions. See State v. Hoare, 20 Or. App. 439 (1975); State v. Koennecke, 274 Or 169 (1976). In addition to that statutory language, Oregon case law approves the idea of a pretrial hearing on the admissibility of scientific evidence or other evidence with significant prejudicial potential. See State v. O'Key, 321 Or 285, 307 n 29 (1995) ("When proffered scientific evidence raises issues of scientific validity, those issues should be addressed by the trial court in a separate OEC 104(1) hearing, preferably in advance of trial."); see also, e.g., State v. Stanley, 30 Or App 33, 38 (1977) ("Evidence which carries an unusual potential for prejudice should be ruled upon preliminarily, prior to trial in the case of state's evidence . . . .").
Alternatively, you can just wait until the point in the trial where the State seeks to introduce the evidence, and at that point demand that a proper foundation be laid before that evidence comes in. You should be able to have the jury excluded for this portion-if they're present, they're exposed not only to proffered scientific evidence that may ultimately be deemed inadmissible, but also to the inadmissible portions of the foundational evidence. See OEC 103(3) ("In jury cases, proceedings should be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means . . . ."); OEC 104(3) (hearings on preliminary matters other than the admissibility of confessions should be conducted outside the jury's presence "when the interests of justice require").
There are advantages and disadvantages to both options. If you file a pretrial motion, you know going into trial whether you'll have to deal with that evidence or not (of course, the State knows this too, so depending on the circumstances the preparation factor may be a wash). Also, if you win such a motion, you don't have to worry about the jury hearing about the evidence in the early phases of the trial. Cf. Stanley, 30 Or App at 196 (affirming conviction although evidence referenced early in the trial was ultimately deemed inadmissible: "Where there was no pretrial motion, where both attorneys had mentioned breathalyzer evidence prior to the officer's testimony, and where the reason for the exclusion of the evidence reflects negatively upon the reliability of that evidence, we cannot say as a matter of law that the hearing of foundation evidence before the jury influenced the jury in their fact-finding . . . ").
However, if you file a pretrial motion and succeed in getting the evidence excluded, the State has an appeal right that it wouldn't have if the exclusion decision had been made mid-trial. See Hoare, 20 Or App at 444-45 ("When a defendant raises an objection to evidence in advance of trial, he takes the risk that the state may have an opportunity to obtain review of an adverse decision it would otherwise be deprived of if the objection were made during the course of the proceedings."). For this reason, the State may itself ask for a pretrial hearing on the admissibility of its evidence, especially if you've alerted them to the fact that you intend to challenge it.
In addition, a pretrial motion may more generally alert the prosecution and make them more prepared than they would otherwise be. This is particularly significant where the type of evidence at issue hasn't been approved by any Oregon appellate court, so that the prosecutors have to lay the entire Brown/O'Key foundation. As we'll be discussing later in this series of articles, that's a non-trivial task, and a prosecutor challenged mid-trial may not be ready with sufficient evidence of scientific validity, error rates, peer-reviewed literature, and all the other factors in the analysis.
How much to cross?
Another decision is how extensive and searching your cross-examination of the proffered expert should be during the admissibility hearing, whether pretrial or mid-trial. Prosecutors sometimes show up apparently thinking of the Brown/O'Key factors as a fairly perfunctory list of yes/no questions. ("Mr. Expert, has this method been confirmed through studies?" "Yes." "Is there peer-reviewed literature on this method?" "Yes." Etc.) Especially if the prosecutor is not well-versed in the law in this area, he or she may lay a bare-bones, possibly legally insufficient foundation.
What to do then? One option is to dive into a heavy, thorough cross-examination that exposes the lack of any legitimate basis for the witness's conclusory statements. For example, the State's witnesses may have given testimony on direct regarding error rates, but a good cross might reveal that those rates were not determined by any legitimate, quantitative process. Or the "studies" relied on to validate the State's method might have been done internally, by technicians, without the "studies" having been subjected to peer review or otherwise validated. Cf. State v. Perry , 347 Or 110, (2009) ("[The witness] also described a small, informal CARES study of children with abnormal physical examinations, which found that 90 percent of those children had delayed in disclosing sexual abuse. She acknowledged that the study was not peer reviewed and was not rigorous. We do not consider it as part of the state's portrayal of specialized literature at the OEC 104 hearing.").
Remember, at one of these admissibility hearings, it's not a "sufficiency of the evidence" standard-the evidence only comes in if the court actually decides by a preponderance of the evidence that it's valid. See O'Key, 321 Or at 307 n 29 ("Under OEC 104(1), the trial court is not to decide merely that the proponent has offered enough evidence of validity to enable a reasonable person to conclude that the evidence is valid, but the court is to decide the validity issue."). If you can demonstrate on cross that the witness's conclusory direct testimony was unfounded and should be given little weight, you might move the needle in your direction in the admissibility analysis.
It's also possible, though, that that sort of cross could produce testimony that would allow a trial or appellate court to fill the gaps and find the evidence admissible. For that reason, you may decide you're better off with little or no cross, just leaving the record as the State has created it. One thing to note if you're going to try the "minimalist" route: to be safe, you probably need to mention all of the Brown/O'Key factors in your argument before the trial court, or at least all of the ones that might give you some traction on appeal. Otherwise, even though it's the State's burden to lay the foundation for its evidence, you could be deemed to have effectively conceded the unmentioned factors. See Perry, 347 Or at 122 ("In general, we agree with the premise of the state's argument: In multifactor foundation cases like the present one, for example, the trial court reasonably might assume that some factors are not in dispute if no one mentioned them.").
How to decide?
As you can see, there's no universal answer to questions such as whether to make your challenge pretrial or mid-trial and how extensively to cross the State's witnesses. The decisions should be made in light of the various objectives of a Brown/O'Key hearing; these include winning the admissibility argument at the trial court level, developing and preserving a basis for an appeal, and previewing the State's evidence and potentially weakening it at trial. (As to this last objective, many of the issues affecting the admissibility analysis will also provide useful cross material at trial, and in the admissibility hearing without the jury present you can ask probing questions with comparatively little risk even if you don't know the answers.)
In the next set of articles, we'll talk about some of the specific Brown/O'Key factors and how they might play out in our cases.
