This post addresses questions that I get from defenders who are seeking to challenge the admissibility of expert testimony under NC Rule of Evidence 702. I’ll address the nuts and bolts of how and when to make a 702 challenge for attorneys who haven’t yet challenged expert testimony. All defenders should read the NC Superior Court Judges’ Benchbook, Criminal Evidence: Expert Testimony prior to challenging expert testimony for an in-depth analysis of this topic with cites to the relevant caselaw.
Defenders should keep in mind that a 702 challenge is a flexible inquiry. It does not require a written motion or pre-trial hearing, but those are permissible. The trial court has the discretion to determine the procedure for hearing a 702 challenge, so long as the hearing will “secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.” State v. McGrady, 368 N.C. 880, 893 (2016) (citing N.C. Gen. Stat. § 8C-1, Rule 102(a)(2015).
Should I file a written motion?
It is not necessary to file a written motion to challenge the admission of expert testimony under Rule 702, but filing a written motion may result in the motion being taken more seriously and is the better practice where practicable. In more complex litigation or if you are citing to sources like scientific articles, you might choose also to file a memorandum of law or affidavits, as needed.
Should I make a pretrial motion?
It depends on the complexity of the issues and strategic considerations, but most often the motion is not made pretrial. Filing a pretrial motion may result in the State being able to correct the deficiency in the evidence they are attempting to offer, either by performing additional testing or having a different expert testify. Also, it is unlikely that one Superior Court judge will want to decide admissibility of expert testimony of a case that another judge may try. However, where scientific evidence is central to the case, a defender may want to resolve questions of admissibility before opening statements. If admissibility were addressed prior to jury selection, jeopardy will not attach, and it is possible that the state could retry the case with new expert testimony. Typically, 702 challenges are addressed within the presentation of the State’s evidence.
When do I make an objection to a State’s witness being qualified as an expert and offering opinion testimony if making the challenge during the State’s presentation of evidence?
There are several ways to object and ask to be heard on a 702 challenge. When defense counsel knows that the State will be calling a potential expert witness, counsel can let the court know that they will need to voir dire the witness outside of the presence of the jury. The voir dire could then be conducted prior to the witness offering any testimony before the jury.
Alternatively, the voir dire can be conducted during the witness’s testimony. On direct, the State will attempt to qualify the witness as an expert in their field. They will elicit testimony about the witness’s training, education, experience, and methodology used. Prior asking the witness to testify about the testing done in your particular case, the State will offer the witness as an expert in a particular field.
When the State tenders the witness as an expert, defense counsel should object and state that they have some questions to ask the witness on voir dire, if they have questions about the witness’s qualifications. This voir dire will be conducted out of the presence of the jury. In many cases, defense counsel will have more questions about the analysis and conclusions than about the witness’s qualifications. In this situation, it may still make sense to raise the objection at this time and voir dire on some of the witness’s qualifications. Then, tell the court that those are all of the questions you have on qualifications, but that you have some questions about the expert’s methodology, the methods used in this particular case, or the expert’s conclusions. Ask if the court would like for you to address those now. The court will likely ask that those questions be addressed in the voir dire while the jury is out.
Next, question the witness on additional issues related to methodology and conclusions. Scientific articles and reports that support your challenge should be used to question the witness and be made part of the record. This will both preserve the record for appeal and facilitate the court’s access to these documents. Finally, move that the court not allow this witness to offer their opinion as expert testimony. Make your arguments citing the specific prongs of Rule 702 that would be violated if the testimony were allowed. Cite Rules of Evidence 401, 402, and 403 as appropriate. Raise any discovery violations as appropriate, such as where results have not been properly documented and disclosed through discovery. Constitutionalize any violations that would infringe on the defendant’s Fifth Amendment due process right to a fair trial or Sixth Amendment right to effective assistance of counsel. Make any motions to limit the testimony of the expert as appropriate.
If the Court allows the testimony, renew your objection to qualifications, if any, when the witness is offered as an expert before the jury. Each time the witness offers their opinion or testifies to the results of their testing, renew your objection to that testimony.
What if I need the State’s witness to refer to parts of their report, scientific articles or reports, or laboratory procedures during my voir dire of the witness?
Defenders can ask to admit these as voir dire exhibits or motions exhibits. This ensures that they are part of the record on appeal. This is not considered putting on evidence in the case in chief because this hearing should be occurring outside of the jury’s presence.
As a reminder, lab procedures and other relevant reports are accessible on the IDS Forensic Resources website (www.forensicresources.org). The current and archived procedures for the NC State Crime Laboratory are available on the Department of Justice website (https://ncdoj.gov/crime-lab/iso-procedures/). Once counsel makes a one-time request to access procedures on the DOJ website, they will have continuing access to current and archived procedures.
Can I offer testimony of my expert during the challenge to the State’s expert’s testimony?
If you intend to offer expert testimony during this hearing, I recommend raising this issue with the court with enough anticipation to allow for appropriate scheduling of witnesses as this will be a lengthier hearing. Rule 702(a) does not mandate any particular procedure for the court to follow to determine the admissibility of expert testimony. In complex cases, the trial court may opt for special briefings, submission of affidavits, voir dire testimony, or an in limine hearing. McGrady at 893. If the court does not allow your expert to testify before determining admissibility, make a proffer either by testimony or report that shows what the defense expert would have said so that the record is preserved for appeal.
As always, please reach out to me (firstname.lastname@example.org) if you need assistance preparing to challenge expert testimony.