Post on new fees for forensic expert testimony

School of Government Professor Jessica Smith authored an informative post entitled Imposing Fees for Forensic Expert Testimony — Is It Constitutional? on the North Carolina Criminal Law blog this morning. The post looks at a new $600 fee imposed on defendants when a State Crime Lab or a local crime lab analyst testifies at trial regarding forensic analysis. Jessica Smith discusses whether this new fee is constitutional as applied to defendants exercising their Sixth Amendment confrontation right that was newly declared in Melendez-Diaz v. Massachusetts. Anyone considering challenging the imposition of this fee should take a look at the arguments for and against its constitutionality in this post.

Accreditation of local crime labs

For those of you who have been tracking the provision in the Forensic Sciences Act of 2011 that requires local crime labs to become accredited, a bill has been introduced to extend the time for local crime labs to become accredited to July 1, 2020. Below are links to the relevant legislation:

Forensic Sciences Act – Signed into law by Governor Beverly Perdue on March 31, 2011. Sections 1-5 and 7-11 are effective when the act became law. Section 6 (Ombudsman position) is effective on July 1, 2011.

• Session Law 2011-307 – Section 9 of this law extends the time for local forensic science labs (other than the North Carolina State Crime Laboratory) to become accredited to October 1, 2012.
• Session Law 2012-168 – Section 6 of this law extends the time for local forensic science labs (other than the North Carolina State Crime Laboratory) to become accredited from October 1, 2012 to July 1, 2013. Section 6.1 clarifies which State Crime Laboratory employees are required to become certified.
• Senate Bill 200 – this bill extends the time for local forensic science labs (other than the North Carolina State Crime Laboratory) to become accredited from July 1, 2013 to July 1, 2020. Introduced March 5, 2013.

Lab accreditation is important because it requires labs to have and follow a set of written procedures. Accredited labs must have quality assurance procedures in place and a plan for addressing problems that may arise in a lab, including contamination, unexpected results, or analyst failure to comply with the written procedures. Though problems can still occur in an accredited lab, accreditation is an important step in ensuring valid results.

North Carolina is not the only state working to ensure that all forensic laboratories become accredited. This article describes a bill in Minnesota that would require all forensic laboratories to become accredited in the wake of a major lab scandal related to drug analysis in the unaccredited St. Paul police crime lab. Minnesota legislators are considering requiring that labs apply for accreditation by a certain deadline and complete the accreditation process by a later deadline. This change would address the backlog of labs waiting to be inspected and accredited by the limited number of accrediting bodies.

More information about the lab accreditation and analyst certification process is available in this 3-part series on accreditation and certification:

• Part 1: What’s the difference between accreditation and certification?
• Part 2: The Lab Accreditation Process
• Part 3: ISO and the NC Forensic Sciences Act of 2011

Changes to requirements for remitting lab fees

HB 950  (S.L. 2012-142) adds requirements for remitting costs in criminal cases where a defendant is found guilty or pleads guilty or nolo contendere, including the $600.00 lab fee that is assessed where there has been DNA analysis, toxicology, or drug analysis performed at the State Crime Lab or a local crime lab.

Previously, lab fees for services performed by the North Carolina State Crime or a local crime lab facility could be waived or reduced by the court making a finding of just cause to grant such a waiver or reduction. This law adds the following language to G.S. 7A-304(a), requiring findings of fact and conclusions of law to support a finding of just cause: “Only upon entry of a written order, supported by findings of fact and conclusions of law, determining that there is just cause, the court may (i) waive costs assessed under this section or (ii) waive or reduce costs assessed under subdivisions (7) or (8) of this section.” (Subdivisions (7) and (8) are the $600.00 lab fee provisions.)

The law also amends G.S. 7A-38.7(a) to  require findings of fact and conclusions of law supporting a finding of just cause to waive or reduce fees associated with mediation: “The court may waive or reduce a fee assessed under this section only upon entry of a written order, supported by findings of fact and conclusions of law, determining there is just cause to grant the waiver or reduction.”

These changes become effective July 1, 2012, and apply to fees waived on or after that date.

Notice and demand procedures

Jessica Smith’s recent post, Don’t Look a Gift Horse in the Mouth, on the School of Government’s North Carolina Criminal Law blog reminded readers about the use notice and demand statutes in cases involving lab reports or chain of custody statements. Notice and demand statutes, in a nutshell, allow prosecutors to obtain a waiver of a defendant’s confrontation rights by providing to the defendant notice of the state’s intention to introduce lab reports or chain of custody statements without live testimony. If the defendant does not object, such evidence may be introduced at trial without the testimony of the analyst or evidence custodian.

Prof. Smith’s post provides a useful table which summarizes the requirements of the notice and demand statutes. The table and additional information is also available in this School of Government Bulletin. Attorneys who wish to object should refer to the table and the corresponding statutes to determine the timing  of their objection/demand for live testimony. A sample Notice of Objection is available on the IDS forensics website (scroll down to “Other Motions and Orders”).

Update: See this 7/25 post by Jessica Smith on proper execution of notice and demand procedures and recent case law addressing notice and demand.

Legislative Change Regarding Expert Testimony

By Alyson Grine, UNC School of Government Defender Educator

In S.L. 2011-283 (H 542), the General Assembly revised North Carolina Evidence Rule 702(a). Rule 702(a) guides the trial court in serving a gatekeeper function with regard to expert testimony; the trial court must make a preliminary determination as to whether a witness has the qualifications to testify as an expert, and if so, whether the expert’s testimony is admissible. S.L. 2011-283 was enacted as a part of new limits in civil tort actions; however, the amended rule applies to criminal cases as well as civil. Thus, criminal defenders are asking: to what extent has the framework for determining the admissibility of expert testimony changed?

The amendments to Chapter 8C, Rule 702(a) read:

(a) If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion.opinion, or otherwise, if all of the following apply:

(1) The testimony is based upon sufficient facts or data.

(2) The testimony is the product of reliable principles and methods.

(3) The witness has applied the principles and methods reliably to the facts of the case.

The legislation does not alter the language pertaining to the qualifications of an expert. Instead, the legislation adds the above subparts to impose restrictions on the admissibility of expert testimony. The subparts are lifted verbatim from Federal Rule of Evidence 702 as amended in 2000, which was intended to codify the criteria for the admissibility of expert testimony established in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). Daubert established the modern standard for admitting expert testimony in federal trials; the Court set out five factors for trial judges to use as a measure of reliability in making a preliminary determination about the admissibility of scientific evidence:

1. Is the evidence based on a testable theory or technique;
2. Has the theory or technique been subjected to peer review and publication;
3. Does the technique have a known error rate;
4. Are there standards controlling operation of the technique; and
5. To what degree is the theory or technique generally accepted by the scientific community? Id. at 593-94.

In Howerton v. Arai Helmet, Ltc., 358 N.C. 440 (2004), the North Carolina Supreme Court rejected the federal standard for determining the admissibility of expert testimony. “North Carolina is not, nor has it ever been a Daubert jurisdiction.” Id. at 469. Instead, North Carolina has used the three-part inquiry set forth in Howerton: “(1) Is the expert’s proffered method of proof sufficiently reliable as an area for expert testimony? (2) Is the witness testifying at trial qualified as an expert in that area of testimony? (3) Is the expert’s testimony relevant?” Id. at 458, relying on State v. Goode, 341 N.C. 513, 527-29 (1995) (internal citations omitted). The first prong of the Howerton test includes a requirement that the expert’s method of proof be reliable, much like the second restriction in amended Rule 702(a). Unlike amended Rule 702(a), however, the Howerton test does not explicitly require that experts have sufficient facts and data for their opinions, or that they apply their methods reliably to the facts. Arguably, these were implicit requirements under Howerton as they are components of reliability. Some North Carolina decisions have recognized that experts should have sufficient facts and data for their opinions and should apply their methods reliably. See, e.g., State v. Grover, 142 N.C. App. 411, aff ’d per curiam, 354 N.C. 354 (2001). Amended Rule 702(a) makes it clear that trial judges must apply those requirements before allowing expert testimony before the jury.

The approach that North Carolina adopted in Howerton was “less mechanistic and rigorous than the exacting standards of reliability demanded by the federal approach.” Howerton, 358 N.C. at 464 (internal citations omitted); see also Robert P. Mosteller et al., North Carolina Evidentiary Foundations at pp. 10-15 to 10-17 (2d ed. 2006). Amended Rule 702(a) may or may not mandate the precise approach required by Daubert, but by adopting the language of Federal Rule 702, the General Assembly has raised the bar (or better stated, “the gate”), thereby requiring greater scrutiny of expert testimony than the former North Carolina rule and the cases interpreting it. Court actors should not presume that a method of proof that was deemed sufficiently reliable under the former North Carolina rule and Howerton will be admissible under the amended rule. The subparts added by S.L. 2011-283 are not a codification of Howerton, and it may no longer be good law. See Daubert, 509 U.S. at 586-87 (holding that the “general acceptance test” of Frye v. United States,54 App. D.C. 46 (1923) was superseded by the adoption of the Federal Rules of Evidence). In response to the legislative changes, defenders should be prepared to conduct more rigorous scrutiny of experts to determine admissibility, which will require probing discovery, motions, and voir dire practices to determine whether the expert’s testimony complies with the amended requirements.

As mentioned above, the amendments to Rule 702(a) are part of the “An Act to Provide Tort Reform for North Carolina Citizens and Businesses.” Possibly, the General Assembly did not have an eye to the impact the amendments would have on criminal practice in North Carolina. However, recent cases reveal growing concerns about unreliable expert testimony in criminal cases.  See State v. Ward, 364 N.C. 133 (2010) (expert’s testimony was not based on sufficiently reliable method of proof where expert identified substances based on a visual examination rather than a chemical analysis); State v. Davis, __ N.C. App. __, 702 S.E.2d 507 (2010) (expert’s testimony was not based on sufficiently reliable method of proof where expert relied on odor analysis to conduct retrograde extrapolation of defendant’s blood alcohol concentration at time of accident); State v. Meadows, __ N.C. App. __, 687 S.E.2d 305 (2010) (expert’s testimony was not based on sufficiently reliable methods of proof where expert relied on the results of the NarTest machine). Thus, amended Rule 702(a) may be viewed as a timely reform in the criminal context.

Note: A later bill (SL 2011-317) makes the revised rule applicable to actions arising on or after October 1, 2011. For criminal cases, the rule likely applies to cases in which the offense occurred on or after that date.