Testimony of a Non-Expert

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In presenting evidence in court, sufficient to establish the prima facie elements of the alleged criminal charges, the State carries both the Burden of Production and the Burden of Proof.

“It’s human nature to seek to tie things together and wrap everything up with a conclusory statement as to the evidence – David Teddy, Criminal Defense Lawyer Shelby NC

At the same time, while understandable the State may ask the officer and other “lay witnesses” to surmise what they observed on the scene, that may step into the province of the trier of fact.

Opinion testimony in court is subject to consideration by the presiding judge in determining what is admissible as evidence on technical, relevancy grounds.

There are substantive and substantial differences between providing a true, accurate recitation of the facts and crossing the line to answer the ultimate question: Did the accused do what is alleged?

What Is Expert Testimony?

Testimony by experts in North Carolina was for years considered in light of the seminal case of North Carolina v. Howerton.

For issues not ordinarily known by “lay” or ordinary people, an “expert” was anyone who, due to their training, experience, or education, knew more than the common man or woman.

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Then, as now, the admission of Expert Testimony was deemed in the discretion of the Court.

But for an abuse of discretion, together with balanced with consideration of whether an error in admitting evidence affected the proceedings/verdict, such rulings by the Judge are rarely overturned by the Court of Appeals.

The resulting ignominious, at least as defined by criminal defense lawyers in North Carolina, rulings are all too easily and neatly characterized as Harmless Error.

Unfortunately, despite adopting in large measure the Federal Expert Testimony Rule 702 as discussed by Daubert Tire, some more long-in-the-tooth prosecutors continue to argue the admissibility of Expert Testimony is centered on whether the proponent “knows more than the average juror” standard.

That simply is not the law, anymore, in NC.

“Like it or not, North Carolina is most decidedly a Daubert state. That comes with good and bad, both for the prosecutor and defense attorney – Daniel Talbert, Criminal Defense Lawyer Rutherfordton NC

North Carolina v. Delau

Occasionally, the North Carolina appellate courts have been called on to address Expert Testimony – Rule 702 issues.

In an interesting, albeit unpublished decision by the NC Court of Appeals in North Carolina v. Delau, (No. COA19-1030) the Court again reminds legal professionals:

The jury is just as well qualified as the witnesses to determine what inferences the facts will permit or require – Shaw v. Sylvester (253 NC 176 – 1960)

Evidence in the form of an opinion, by a non-expert, is not admissible.

“It does not ‘tend’ to subvert the work of the jury as trier of fact, as opined in State v. Fulton. It does, most decidedly, clearly invade the province of the jury – David Teddy, Cleveland County Defense Attorney

The trier of fact, the jury in many if not most instances in Superior Court, is charged with the responsibility of drawing conclusions from the evidence as it sees fit.

Is DWI a felony in North Carolina?

Expert WitnessIt’s improper for the jury to be influenced by the conclusions and opinions of a police officer not qualified as an expert.

Put simply, the Officer’s opinions as to what took place or how things developed are no more reliable than an average layperson, a “non-expert.”

Did it Affect the Finding of Guilt?

Although seemingly a bright-line rule for counsel, the State gets a second bite at the apple.

Even if improvidently admitted into the evidence, the appellate Court is called to make a big-picture conclusion, to wit: Did that piece of evidence affect the verdict?

Was there prejudice?

Board Certified Criminal Law Specialist

Evidence admitted contrary to the Rules of Evidence in North Carolina does not in every instance result in a new trial.

The “erroneous” admission of evidence must also be prejudicial.

Was the accused found guilty as a result? Did the wrongfully admitted evidence play a “pivotal role” in determining the verdict of the trier of fact?

“The mountain for defense counsel to climb is both arduous and steep. There is an abuse of discretion analysis, followed by Harmless Error – Daniel Talbert, Criminal Defense Rutherfordton NC

Shelby Criminal Defense Lawyers – Teddy, Meekins, & Talbert Law Firm

The nuances and complexities of a trial can be overwhelming at times.

Real-time admissibility issues deserve some level of anticipation and therefore case law in hand to present to the Court.

“It’s helpful to remember that while not binding, unpublished decisions like Delau are instructional. All too often 701 witnesses are treated like 702 experts – David Teddy, Shelby DWI Lawyer

If you have questions about State v. Delau or would like to discuss complex evidentiary issues with Cleveland County Defense Attorney David Teddy, please email him at: dTeddy@tmtlawyers.com

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