In State v. Martin, an Aug. 3, 2021 unpublished opinion, the Court of Appeals found that it was error to admit the expert’s testimony, but that it was not plain error. At trial, a NC State Crime Lab drug chemistry expert testified to GCMS results without explaining methodology, the reliability of methodology, or the application of method to facts of the case as required by Rule of Evidence 702. While it was error to admit her testimony, the Court of Appeals found the testimony “does not amount to ‘baseless speculation,’ and therefore her testimony was not so prejudicial that justice could not have been done,” citing State v. Sasek, 271 N.C. App. 568, 574 (2020).
This outcome is an important reminder to preserve the issue of a violation of Rule of Evidence 702 by objecting at trial and stating the basis for the objection under Rule 702. In Martin, when asked if he wanted to voir dire the witness, stated that he objected but did not wish to be heard. When expert testimony is correctly challenged under Rule 702 at trial the standard of review on appeal is abuse of discretion. If the issue is not preserved at trial, as in Martin, the standard of review is plain error. The Court of Appeals in Martin found that the expert’s testimony did not meet the standard of plain error even though the testimony violated Rule 702. Therefore, the defendant had no opportunity for relief regarding that issue. To preserve the ability to appeal a violation of Rule 702 in a way that offers relief to your client, attorneys should object to the testimony at trial and stating the basis of the objection under Rule 702.
See the full opinion here.