One of my most embarrassing losses
by: Ryan • December 26, 2011 • no comments
Long time ago, but this case still pains me. I lost a DRE DUII. The DRE claimed in her report that client was under the influence of a depressant, even though he had meth on his person. But the urine test came back for . . . meth. So the DRE gave an opinion at trial how the observations of my client were consistent with a stimulant.
There are a lot of things I could have done differently, and I won't belabor them all now. But I was reminded of this when I read this quote from a petition for cert.
"In General Electric Co. v. Joiner, 522 U.S. 136, 146 (1997), this Court reaffirmed the responsibility of district courts to determine whether expert testimony meets these standards, emphasizing that a district court has discretion to exclude 'opinion evidence that is connected to existing data only by the ipse dixit of the expert' and that '[a] court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.'"
I don't know that I would have convinced the judge to exercise his discretion to exclude the DRE's opinion, but it does seem that if the opinion proffered can jump from one conclusion to its opposite, we weren't getting the benefit of "reliable scientific conclusions."
The question presented in the petition is:
"Whether a district court abuses its discretion in excluding expert testimony that draws an inference of potential causation from inconclusive data, merely because the expert asserts that, in his judgment, the weight of the evidence supports his opinion."
The petition for cert is here. It's a civil case, but it has a lot of useful stuff that can help shape our arguments.
And incidentally, that wasn't my most humiliating courtroom experience. Not even close.
