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Impeachment via Learned Treatise

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by: Ryan • July 11, 2012 • no comments

While today's COA opinions included one that was personally disappointing for me, nevertheless it was -- collectively -- a very good day for the defense. Two opinions were especially good, and credit goes to Daniel Bennett and Morgen Daniels (both at OPDS) for two very nice wins.

Summaries and links to all of today's opinions can be found here .

Anyway, the win in St v Bertsch has an excellent discussion of reasonable suspicion. And though it involves the driver of a vehicle, I suspect it will be frequently cited in cases involving passengers who, perhaps, find themselves within the ambit of the driver's suspicious behavior.

But I also want to highlight St v Morgan, which dealt with the (attempted) impeachment of two officers via quotes from the NHTSA manual. It was a DUII. I am unable to look up the name of the trial attorney at the moment, but it appears he or she did really excellent work (and for a very deserving client, too). (Peter Carini, Esq. Medford)

The opinion overall appears to loosen up the reins in terms of allowing impeachment of expert witnesses, although those of you who can quote Kirkpatrick backwards and forwards may say it simply reaffirms what was already known. I won't repeat here all the ways the opinion is good, because you really should read it yourself.

The analysis in Morgan is not going to be restricted to DUIIs. The defense in sex cases will benefit as well, or any case with expert testimony.

As you know, sometimes getting our own expert can be difficult, and calling an expert will often involve not a small amount of risk. (We've all had expert witnesses who -- after providing some useful information -- will then add something like, "but here's probably why you don't want to call me as a witness.")

But the opinion makes clear that you can impeach the state's expert even if the expert is unaware of the "learned treatise" from which the impeachment originates, as long you can lay the foundation for it being an authoratative resource in some other way. And furthermore impeachment with a "treatise, pamphlet or periodical" is not hearsay.

So let's step back a little bit. As you probably know, I think police officers get a lot of undeserved leeway in expressing their opinions to the jury, particularly in drug cases. I have written previously that we should move to exclude the officer's opinion that the money and baggies and quantity proved that the defendant was going to deal the drugs found on his person. But assuming you lose that argument, both because of the state's theory that the officer is an expert and the court's conclusion that there isn't a Southard-type infringement on the jury's deliberative process, you may be able enjoy a great deal of quality impeachment, as long as you've anticipated and found ahead of time the authorative and helpful materials you need.