Does the State Have the Wrong Expert?
by: Ksali • May 11, 2011 • no comments
Throughout this series of articles on scientific evidence, we'll be discussing various elements in the Brown/O'Key framework. But before you go too far down that road, one threshold question is: just who, exactly, is this supposed "expert" the State is putting on the stand? And if this particular type of scientific evidence requires a full Brown/O'Key foundation, is this witness qualified to lay it?
Two levels of "experts"
Recall that when you're challenging the State's scientific evidence, you'll find yourself in one of two basic situations. If the evidence is of a type that's been previously approved by an Oregon appellate court (for example, HGN evidence in a DUII case), the admissibility requirements are relatively limited; the State basically has to show that the witness is qualified to apply the method or technique and did so correctly in your case. See, e.g., State v. O'Key, 321 Or 285, 293 n 8 (1995). However, absent such appellate approval, the State needs to lay a much more comprehensive foundation.
Oregon courts have drawn a distinction between the types of qualifications required of witnesses in these two settings. In briefing and arguing these issues, I sometimes use the terms "foundation-level" and "application-level" to illustrate this distinction.
Those terms aren't found in any judicial opinion that I'm aware of, but the concepts are. Perhaps the best example is from O'Key itself-or, perhaps more accurately, the long judicial history through which HGN evidence finally became admissible.
In State v. Reed, 83 Or App 451 (1987), the trial court had admitted HGN evidence-which, remember, had not been approved by any Oregon appellate court at that time-based on the foundational testimony of a police officer who had been trained to administer the test and interpret the results. The Court of Appeals held that the officer was not sufficiently qualified to give that foundational testimony, noting that "[a]lthough [the officer] may [have been] qualified as an expert in giving the test, she was not qualified as an expert on the reliability of the relationship, if any, between alcohol consumption and nystagmus." Id. at 456.
It wasn't until years later, when the State finally came forward with experts with substantial expertise in the relevant fields-including a "professor of optometry," a "research psychologist," and a "consulting pathologist"-that the Oregon Supreme Court concluded that an adequate foundation had been laid for HGN evidence. O'Key, 321 Or at 309 & n 34. This distinction between the two types of experts has continued to be applied following O'Key. See, e.g., State v. Sampson, 167 Or App 489, 501 (2000) (considering admissibility of drug recognition expert ("DRE") protocol):
Police officers are normally competent to testify concerning matters within the province of their own training and experience, including observational techniques that are part and parcel of the DRE protocol; they may not, however, validate its underlying scientific basis. Accord People v. Kelly, [549 P2d 1240] ([Cal] 1976) (prospective police witness not competent to testify with respect to validity of voiceprint analysis, because his "qualifications are those of a technician and law enforcement officer, not a scientist," and he thus was not qualified to express an informed opinion on the views of the scientific community).
Watch for the "technician" expert
This distinction is an important one to keep in mind whenever the State has to lay a full Brown/O'Key foundation. Pay close attention to the qualifications of the witness the State puts forward at the admissibility hearing. Is that witness a true "foundation-level" expert? Is she qualified to explain the scientific principles underlying the test, how it works, what the potential sources of error are, etc.? (Note that "qualified" means more than being able to read those things out of a book or manual and regurgitate them to the court.) Or is she just someone who knows how to do the test-like the officer whose testimony was deemed insufficient in Reed?
If past experience is any indication, you may find that the State's purported "foundation-level" witness is really just a technician-i.e., someone who knows how to do the test and interpret the results, but not much more. If so, argue that she's no different than the officer in Reed-and certainly not equivalent to any of the scientists in O'Key. (I regularly make that specific comparison-I think it's a helpful way to illustrate the qualifications required of a foundation-level expert.) Remember that what matters isn't whether the witness gives foundation-level testimony-the officer in Reed tried to do so, see 83 Or App at 453-but whether she's qualified to do so.
Finally, when you're arguing that a witness is insufficiently qualified to lay an initial Brown/O'Key foundation, don't let the judge get sidetracked by superficial things that look significant but ultimately don't convey foundation-level expertise. For example, perhaps the witness is a crime lab employee with a degree in chemistry. So what? Did anything in her undergraduate experience relate to the test she's trying to validate (beyond, perhaps, ordinary principles of general chemistry)? If not, how is she any different than the Reed officer? Similarly, perhaps your witness is not just a technician but a supervisor or lab manager. Again, so what? If she's in that position because she's done some underlying research in relevant fields, that may make a difference. But if she's there because she learned the test, did it a bunch of times, and now can teach others to do it, that shouldn't qualify her as a foundation-level expert. By comparison, the result in Reed probably wouldn't have been any different if the officer had been an SFST instructor.
As always, your thoughts and questions are most welcome. Best wishes!
