The Rules of Evidence is one of those boring topics that causes non-lawyers (and some lawyers, unfortunately) to zone out and lose interest. However, the evidentiary rules – and changes to the rules – can drastically affect the outcomes of criminal cases. Bruckheim and Patel have been leading the charge to litigate one of the recent changes to the law that may have a drastic impact on the results of cases in the Superior Court of the District of Columbia – particularly for Driving Under the Influence charges.

This article will seek to quickly explain what has changed in the law and how Bruckheim & Patel is using this change to produce beneficial outcomes for our clients.

Lay Person Testimony vs. Expert Testimony

First, testimonial evidence can be characterized as either: (1) lay person testimony; or (2) expert testimony.

Layperson testimony (FRE 701) is when a witness testifies as to observations or opinions that do not require scientific knowledge or specialized training. For example, any witness can testify that someone’s eyes look red or that someone fell when they tried to get out of the car.

Expert testimony (FRE 702), on the other hand, is based on “scientific, technical, or other specialized knowledge” that is the product of the witness’s “knowledge, skill, and experience” (FRE 702). Examples of this type of testimony include a certified officer who testifies that a driver’s eyes moved involuntarily during the Horizontal Gaze Nystagmus field sobriety test or a psychologist who testifies how a certain mental illness can effect a person’s actions or thought processes.

Court As A Gatekeeper For Expert Testimony

The court has the duty to decide whether any evidence is allowed in trial – whether it be layperson testimony or expert testimony. As the DCCA explained, the court’s function is to be a “gatekeeper” who decides what comes in and what stays out.

Previously, the judges were permitted to allow expert testimony in a trial if the scientific community accepted the applied methodology or reasoning. This “general acceptance test” meant that the trial was based on the combined opinion of experts in the field. In practice, this means that this rule applied in the 16th century would have allowed experts to testify that the world is flat.

The DCCA acknowledged the problems with this “general acceptance test” in the case of Motorola Inc. v. Murray and got rid of it. In its place, the DCCA determined that expert testimony can only be admitted if the testimony is “the product of reliable principles and methods.” The objective is an honorable one: “to deny admission to expert testimony that is not reliable.”

As the District Court of Maryland in United States v. Horn stated this change means that “everything old is new again,” and that long-established evidentiary standards must be re-evaluated based on this new decision.

New Reliability Test Applied To Field Sobriety Test Testimony

One of the most important pieces of evidence that Bruckheim & Patel is demanding be reevaluated under this new standard is the officer’s testimony regarding standardized field sobriety tests in DC DUI or OWI trials.

There are generally three standardized field sobriety tests: the Horizontal Gaze Nystagmus Test, the Walk and Turn test, and the One Leg Stand Test. The Horizontal Gaze Nystagmus test – in which an officer uses a pen to test whether an individual’s eyes demonstrate nystagmus (involuntary movement) at a certain degree, is the only test that has constituted “expert testimony” in the past. The Walk and Turn and the One Leg Stand have both been determined to be only lay testimony.

So, there Bruckheim & Patel is currently tackling two issues: (1) whether the other two tests (walk and turn and one leg stand) should also be considered expert testimony; and (2) whether any of the tests pass the new “reliability” test.

All Standardized Field Sobriety Tests Require Expert Testimony

First, testimony regarding any of the tests should constitute expert testimony and be required to pass the “reliability” test pursuant to the new rule.

The reason for this is simple: only specially trained officers who undergo 40 hours of training and a certification process are allowed to administer, interpret, or testify to the results of the tests. The ability to give the instructions, the clues to look for, and the interpretation of the results are all the product of “specialized knowledge” that even the average police officer does not have. Therefore, any argument that testimony regarding any of the tests constitutes merely “lay person” testimony that does not require specialized training is a fabricated falsehood.

None of the Field Sobriety Tests Are Reliable Indicators of Intoxication

As all of the tests require expert testimony, all of the tests must pass the new “reliability” test to be admitted into evidence as evidence that the driver was intoxicated. However, none of the tests constitute reliable indicators of intoxication.

The organization that creates the tests and trains the officers in administering and interpreting the tests is the National Highway Traffic Safety Administration (NHTSA). This organization conducted studies in 1977 and 1981 to test the reliability of these field sobriety tests. In these studies, subjects consumed alcohol at different amounts and officers had to “arrest” those who they thought had a Blood Alcohol Content of 0.10% based on their performance on the field sobriety tests. The results showed that the officers wrongfully arrested 47% and 32%, respectively. These results would never be found to be reliable in a scientific setting, and therefore should not be found reliable in court.

Further, a large number of studies have shown that poor performance on the field sobriety tests can be due to some different causes other than intoxication, such as illness, neurological deficiencies, reactions to medication, and many other factors. Therefore, the driver’s performance on a field sobriety test is not a reliable indicator of intoxication.

Fighting for Change

Bruckheim & Patel is fighting to ensure that this change mandated by the DCCA is properly implemented in D.C. Superior Court by tirelessly filing motions, requesting hearings, and zealously arguing the proper application of these new rules to the field sobriety tests. It is likely that success with this argument can mean big changes for those accused of Driving Under the Influence in the District of Columbia.