What is Scientific Evidence?
by: Ksali • March 30, 2011 • no comments
As promised, this series of articles will deal with strategies and tactics for dealing with "scientific evidence" in Oregon criminal cases. But before we dive into that, there's a threshold question. What counts as "scientific evidence"? In other words, what types of evidence are subject to the legal challenges and attacks we'll be discussing?
Contents |
OEC 702, Brown and O'Key
The analysis starts with OEC 702: "If 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 or otherwise." One thing that jumps out is that "scientific evidence" is not synonymous with "expert testimony." As we'll discuss in later articles, "scientific" evidence is subject to defined foundational requirements set forth in cases such as State v. Brown, 297 Or 404 (1984), and State v. O'Key, 321 Or 285 (1995). Other expert testimony is not necessarily subject to those requirements, although other foundational requirements (not as well-developed to date) may apply. See, e.g., State v. Stafford, 157 Or App 445, 455 & n 7 (1998) (discussing this distinction).
The "official" definition of scientific evidence, from Brown, is "evidence that draws its convincing force from some principle of science, mathematics and the like." 297 Or at 407. But that definition isn't always easy to apply, as recognized by then-Judge Landau in his dissent in Stafford. See 157 Or App at 473 (Landau, J., dissenting) ("I can only imagine the difficulty the bench and practicing bar will have in applying the holding of [the] lead opinion [distinguishing "scientific" evidence from other types of expert evidence] in future cases."). Types of evidence that may seem similar may be deemed different for this purpose, based on the grounding that supposedly underlies the testimony. Compare, e.g., State v. Marrington, 335 Or 555, 560-64 (2003) (testimony regarding delayed reporting by child abuse victims deemed scientific where witness referred to research and literature in the field), and State v. Perry, 347 Or 110, 120-21 (2009) (similar), with State v. Clemens, 208 Or App 632 (2006) (reaching different conclusion regarding police officer's testimony on similar topic, where officer's testimony did not "involve the vocabulary of scientific research").
The bottom line is that, if the State wants to put on a witness who appears to be relying on some sort of specialized knowledge beyond what any average person has, you'll probably have at least a decent argument that this testimony is scientific evidence subject to the Brown/O'Key standard absent a directly on-point adverse appellate case. And where the outcome is uncertain, you have little to lose and potentially a lot to gain by arguing that the standard applies. For example, if the trial court rules that it's not "scientific evidence" and lets it in without a Brown/O'Key determination, and the appellate court decides that it was scientific evidence after all, you may have grounds for a reversal even if the evidence presented at trial would have satisfied the admissibility standard if presented in a Brown/O'Key hearing. See State v. Evans, 236 Or App 467, 470 (2010); see also State v. Evans, 238 Or App 466 (2010) (modifying the initial opinion in part but refusing the State's request to instruct the trial court to affirm the judgment after the Brown/O'Key hearing if the scientific evidence was deemed admissible).
Some Practical Tips
So how does this work in practice? First, as you consider the testimony that the State will be introducing, at every point ask whether this is something that any random person could testify to if that person observed, with his or her five senses, what the witness observed. If not-if there's any reference to or reliance on this witness's particular qualifications, training, experience, knowledge, etc.-your antennae should be up. If the "extra" bit that supports this witness's testimony is simple training or experience, it may be more difficult to argue that Brown/O'Key applies (although probably still worth trying; also, see below for an alternative argument to use in these situations). But if there's any hint that it involves some scientific principle (however broadly defined), emphasize this as much as possible. Where appropriate, argue that it's the type of evidence that jurors will perceive as being scientific and to which they will likely attach enhanced significance. See, e.g., Marrington, 335 Or at 562 ("[A] court must determine whether the expert's assertions 'possess significantly increased potential to influence the trier of fact as scientific assertions[.]'") (quoting O'Key, 321 Or at 292) (alteration in original).
Spotting the Science
I sometimes find it helpful to focus on O'Key's distinction between the HGN (horizontal gaze nystagmus) test, which was deemed to be scientific evidence, and the walk-and-turn/one-leg-stand tests, which weren't. See 321 Or at 296-97 (noting that the balance-related tests "obtain their legitimacy from effects of intoxication based on propositions of common knowledge," while "[t]he HGN test provides evidence that purports to draw its convincing force from a principle of science, namely, the asserted scientific proposition that there is a causal relationship between consumption of alcohol and [HGN]"; noting that "[t]he value of HGN testing depends critically on the demonstrated scientific validity of that proposition"). In other words, everyone knows (or so the court stated) that drunk people have a hard time balancing, but it's not similarly common knowledge that alcohol impairment causes certain types of eye movements. Think about arguing your issue this way-is the State's evidence something that most people understand as a matter of course, like the fact that drunk people tend to have balance problems? Or is it something as to which the typical person would need some additional explanation, as with HGN?
In our Hood River Juice case, a water pollution case, these issues came up in the course of the State's proffered evidence relating to algae and odors allegedly observed downstream of the place where our client's water was allegedly discharging. The State's theory was that these observations were evidence that the downstream water was polluted, and that our client was the source. There was a significant disagreement at the outset of the Brown/O'Key hearing as to whether this was scientific evidence. (Full disclosure-although I'll be referencing the HRJ case a lot in these articles, we lost on most of these issues at the trial court level, and the case settled before trial so there was no appellate determination.)
As to the algae issue, we argued that that was absolutely scientific evidence. After doing some research, we learned that the process of identifying algae or other microorganism growth and connecting it to potential water pollution is highly complex, with detailed classification keys to identify particular types of algae and determine whether they are in classes associated with water pollution. That's not the sort of thing the average person knows. As a result, the algae evidence was subjected to the Brown/O'Key analysis. (The court ended up finding it admissible, but by the end of the Brown/O'Key hearing the probative weight of that evidence was largely eviscerated-the State's witness essentially admitted he had no way of knowing whether the algae that had allegedly been observed was or was not a sign of water pollution.)
We made the same argument regarding the State's evidence of alleged odors downstream of our client's apple juice-processing facility. The key here was that the alleged odors we were fighting over here didn't match anything attributable to our client's property (for example, at least as to the evidence at issue, the witnesses didn't testify that it smelled like apple juice). Instead, they were supposedly "septic" odors. But while the average person might know what apple juice smells like and be able to tie that odor to a nearby apple juice business, the average person doesn't necessarily know that apple juice (or something else that typically discharges from a juice facility) undergoes chemical reactions that produce something smelling septic. Again, we argued that this evidence was scientific, and it was made part of the Brown/O'Key hearing.
Inferences
These examples help to illustrate another point. Often, the inferences from observed evidence are what really constitute scientific evidence. For example, the average person might be able to observe that someone's eyes aren't moving smoothly, or that there's some red algae in a body of water. But the State's desired inferences from those observations-that the person is intoxicated, or that there's pollution in the water-rest on scientific knowledge. Don't let anyone testify to those inferences without running them through the Brown/O'Key process. And if the State doesn't have anyone to testify regarding such inferences, argue that the underlying observations are inadmissible under OEC 401-403 without valid scientific evidence to fill the gaps. For example, in HRJ, if the court had concluded that the State's algae expert was not qualified, we would have asked for the exclusion of all algae-related evidence.
Non-Scientific Foundation
Finally, one last point. If the evidence is not determined to be "scientific," that's not the end of the inquiry. If the witness is testifying based on non-scientific specialized knowledge, the State should still have to meet an OEC 702 foundation, even if not the specific Brown/O'Key foundation. This area of the law isn't as fleshed-out as the scientific evidence area, but you should still insist on a foundation under those evidence rules. What is that supposedly makes this witness's specialized testimony helpful? For example, what is about the witness's "training" or "experience" that enables him or her to enlighten the jury beyond what they'd be able to figure out based on factual testimony? Similarly, if the State argues that it's not expert testimony at all and thus not subject to OEC 702, if it's anything other than straight factual testimony it should at least need to satisfy OEC 701 (lay opinion testimony must be "[r]ationally based on the perception of the witness" and "[h]elpful to a clear understanding of testimony of the witness or the determination of a fact in issue"). Cf. Clemens, 208 Or App at 639 n 4 (implying that an OEC 701 challenge may be available where a Brown/O'Key challenge is not).
Anyway, those are some thoughts on the question of whether evidence is "scientific" in the first place. Next up: some thoughts on how to deal with it if it is "scientific."
