NC Rule of Evidence 702 and the Daubert standard govern the admissibility of expert testimony in North Carolina. For attorneys wanting a quick primer on Rule 702, Andrew DeSimone of the Appellate Defender’s Office has recorded Daubert in 12 Minutes.
The UNC School of Government’s NC Superior Court Judge’s Benchbook has a chapter on Expert Testimony (Aug. 2017) that attorneys should be familiar with when considering the admissibility of expert testimony. A significant portion of the chapter looks at each type of forensic evidence and summarizes the existing case law and mentions additional relevant considerations. Other sections of the chapter that defenders will want to take note of are the section on statements and terminology that the PCAST Report says are not scientifically valid (p. 54), the section on whether judges declaring a witness to be an expert in the presence of the jury inadvertently puts the court’s stamp of authority on a witness’s opinion (p. 22), and the discussion on best practices regarding the procedure for holding a 702/Daubert hearing (p. 21-22).
Guide to Working with Experts
- Review your case, client’s records (medical, educational, etc.), and discovery prior to contacting experts. This will help you determine exactly what type of expert assistance is needed and have a more productive conversation with an expert.
- Do not engage a mental health expert before obtaining substantial social history records (click here for a list of potential records to collect), unless the client is floridly psychotic upon you entry into the case. See IDS Policy on the Effective Use of Mental Health Experts in Potentially Capital Cases.
- Click here for IDS Expert Fee and Expense Policies. Please note that funding requests for out-of-state experts requires special justification for the additional costs.
- Educate yourself on the issues. Consult the Forensic Disciplines pages of this website. Scholarly articles are available such as Google Scholar and PubMed.
- Do you need an expert?
- Is the forensic evidence adverse to the defense theory of the case?
- Do you need evidence re-tested?
- Are you critiquing the state’s testing of the evidence?
- Even if the State is not using an expert, consider whether there are affirmative uses of experts that would support your theory of the case, such as crime scene experts, use of force experts, or mental health experts.
Finding an Expert:
- Don’t wait until the last minute – your desired expert may not be available. Any expert will need time to review your case prior to forming an opinion.
- Consider consulting with Sarah Rackley Olson, Forensic Resource Counsel for additional ideas about what type of expert to use.
- Know what particular expertise you need before you start making phone calls: i.e., rather than looking for a “DNA expert,” consider whether you need an expert on DNA mixtures, an expert who can challenge contamination, or an expert who can challenge the statistical computation.
- Consider the role of the expert: Do you need an expert to assist in evaluating the quality of the evidence? To explain the science to you or to the jury? Do you need an expert to develop mitigation evidence or to establish a defense such as self-defense or diminished capacity? Will assistance require access to a laboratory? Can a professor or academic fulfill the role or do you need a practicing analyst or scientist? Is the expert willing to testify?
Research the Expert:
- You should research your potential expert as thoroughly as you would research a State’s witness that you are preparing to cross-examine.
- Review his/her CV. Do not assume that just because the expert has been used frequently that he/she has been properly vetted.
- Utilize disciplinary boards if available. If an expert lists a particular license or certification, see if that organization posts disciplinary information online.
- Ask the expert about any certifications or professional qualifications attempted – has the expert taken any certification exams or other professional exams that he/she has not passed? This website can be used to check to see whether an MD is certified in a particular specialty.
- Attorneys can search the NC Psychology Board to see whether a psychologist has an active license and whether they have any disciplinary issues currently or recently impacting their licensure.
- Attorneys can check the NC Medical Board to ensure that a medical doctor, physician assistant, or resident is licensed and to see whether he or she has any license limitations, adverse actions, or malpractice claims.
- Digging up Dirt on Experts contains materials prepared by Carol Henderson, Director of the National Clearinghouse for Science, Technology, and the Law. This website contains a wealth of useful information about researching experts.
- Seek references on listserves, with the IDS Forensic Resource Counsel, NACDL Resource Center, American Academy of Forensic Sciences (AAFS), other lawyers, other experts and competitors, universities, and publicly-funded laboratories.
- Search LexisNexis and/or Westlaw for cases in which the expert testified.
- Click here for additional information on how to research an expert online.
Guide to your first conversation with the expert:
- Be able to explain to the expert what work you need performed, including specific referral questions you would like addressed if working with a mental health expert. Never ask a mental health expert simply to “evaluate” your client without providing specific guidance. Do not assume that the expert already knows what constitutes a potential defense or mitigating factor. Sometimes an expert who has not received proper guidance will tell an attorney that his or her evaluation has turned up nothing useful, when in fact the expert simply does not have the legal expertise to know what is useful and what is not.
- Get the expert to provide you with a copy of his/her CV.
- Discuss with the expert anticipated hours of work needed, any re-testing needed, any travel required in order to prepare a request for adequate funding. Discuss AOC’s rate schedule (see p. 2), and prepare justification if the expert requires a deviation from the rate schedule.
- Discuss any potential conflicts with the expert due to co-defendants, scheduling, or any other professional or personal matter that would adversely affect the expert’s work/testimony in the case.
- Verify that your expert will be able to testify. Do not assume that testimony will not be needed or promise your expert that testimony will not be needed.
- Your expert will need lab reports and the underlying data in order to analyze the evidence.
- Can your expert explain his/her conclusions clearly and understandably?
- Consider non-verbal communication: arrogance, bias, appearing defensive, organized, prepared, etc.
- Considerations to discuss with expert
- Position currently held.
- Description of the subject matter of the expert’s specialty.
- Specializations within that field.
- What academic degrees are held and from where and when obtained.
- Specialized degrees and training.
- Licensing in field, and in which state(s).
- Length of time licensed.
- Length of time practicing in this field.
- Board certified as a specialist in this field.
- Length of time certified as a specialist.
- If certifications/proficiency tests/etc have been attempted, history of results.
- Positions held since completion of formal education, and length of time in each position.
- Duties and function of current position.
- Length of time at current position.
- Specific employment, duties, and experiences.
- Teaching or lecturing in the relevant field, dates and location of teaching.
- Publications in this field and titles.
- Membership in professional societies/associations/organizations, and special positions in them.
- Requirements for membership and advancement within each of these organizations.
- Honors, acknowledgments, and awards received by expert in the field.
- Who is considered “the best” in the field?
- Number of times testimony has been given in court as an expert witness in this field. (Case names and transcripts, if available.)
- How has the expert’s testimony been treated in the past? Did the expert appear balanced, knowledgeable, and credible? Has the expert ever not been qualified as an expert? Why?
- Is there any personal or professional information that the attorney should be aware of that may be used as impeachment material or to disqualify this expert?
- Availability for consulting to any party, state agencies, law enforcement agencies, defense attorneys.
- Sample Expert Engagement Letter – This letter may be adapted to explain the scope of work needed and expectations regarding client confidentiality when retaining an expert.
The Mechanics of Getting Your Own Expert
The powerpoint and materials from Caitlyn Fenhagan and Sarah Rackley Olson’s May 2012 presentation at the School of Government’s Public Defender Conference are located here. The presentation and materials will walk you through the steps you should take to identify experts and obtain funding for the appointment of an expert in an indigent case. Included in the materials are the relevant NC General Statutes, IDS rules, AOC and IDS forms and policies, sample motions, cases and an excerpt from the NC Defender Manual on Experts and Other Assistance.
- Click here to access AOC-G-309 – Application and Order for Defense Expert Witness Funding in Non-Capital Criminal and Non-Criminal Cases at the Trial Level
- Click here to access the AOC-G310 – Defense Petition for Expert Hourly Rate Deviation in Non-Capital Criminal and Non-Criminal Cases at the Trial Level
- Click here to access Form IDS-028 – Ex Parte Request for Expert Funding Potentially Capital Cases at the Trial Level
- Click here to access Form IDS-029 – Ex Parte Request for Expert Funding in Capital Post-Conviction Cases
If a defendant initially retained counsel but has exhausted available funds during the course of representation such that the defendant is unable to pay for the assistance of experts, counsel can move for the court to declare the defendant indigent for purposes of attaining expert assistance. This sample motion can serve as a template for a stand-alone motion or it can be integrated into the ex parte motion for appointment of an expert.
If you are seeking the appointment of a Local Certified Forensic Evaluator to evaluate capacity to proceed rather than appointment of a Defense Expert Witness, use form AOC-CR-207B. If the Court appoints a Local Certified Forensic Evaluator using this form, use this link to identify which Local Management Entity (LME) covers the county where the charge originated and contact the LME and send the order to them to send to one of their certified forensic examiners. The examiner produces a report which is mailed to the defense, the prosecution, and the Clerk for the court file.
Articles and Publications
- Remote Testimony and Related Procedures Impacting a Criminal Defendant’s Confrontation Rights – This bulletin by Jessica Smith of UNC School of Government discusses the viability of remote two-way video testimony in light of Crawford v. Washington and Melendez-Diaz v. Massachusetts and examines other alternatives.
- Confrontation Clause Update: Williams v. Illinois and What It Means for Forensic Reports – This bulletin by Jessica Smith of UNC School of Government examines Williams v. Illinois, the U.S. Supreme Court’s latest case applying Crawford to forensic reports.
Motions for Appointment of Forensic Expert (Non-Capital Cases)
An indigent defendant’s right to expert assistance rests primarily on the due process guarantee of fundamental fairness. The leading case is Ake v. Oklahoma, 470 U.S. 68, 76 (1985), in which the Supreme Court held that the failure to provide an expert to an indigent defendant deprived him of a fair opportunity to present his defense and violated due process. North Carolina cases, both before and after Ake, recognize that fundamental fairness requires the appointment of an expert at state expense upon a proper showing of need. See, e.g., State v. Tatum, 291 N.C. 73 (1976).
G.S. 7A-450(b) provides that an indigent defendant is entitled to the assistance of counsel and other “necessary expenses of representation.” Necessary expenses include expert assistance. See State v. Tatum, 291 N.C. 73 (1976); G.S. 7A-454 (authorizing services in accordance with IDS Rules).
Courtesy of John Rubin and Alyson Grine, North Carolina Defender Manual, Vol. 1, Pretrial, Second Edition 2009. See Ch. 5: Experts and Other Assistance for further discussion.
- Ex Parte Motion for Appointment of Expert (Arson)
- Ex Parte Motion for Appointment of Expert (Forensic Neuropsychologist)
- Ex Parte Motion for Appointment of Private Investigator
Rules of Evidence – Opinions and Expert Testimony
- Rule 701 – Opinion testimony by lay witness NC Gen Stat 8C-701
- Rule 702 – Testimony by experts NC Gen Stat 8C-702
- Rule 703 – Bases of opinion testimony by experts NC Gen Stat 8C-703
- Rule 704 – Opinion on ultimate issue NC Gen Stat 8C-704
- Rule 705 – Disclosure of facts or data underlying expert opinion NC Gen Stat 8C-705
- Rule 706 – Court Appointed Experts NC Gen Stat 8C-706