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DUI Expert Testimony in North Carolina

Attorneys Bill Powers & Mike Daisley, hosts of NC LAW TALK  in the program entitled DUI Expert Testimony in North Carolina, discuss the public policy considerations of Rule 702 “Expert Testimony” involving technical, scientific and medico-legal issues in North Carolina DUI DWI Impaired Driving Criminal and Civil Wrongful Death, Catastrophic Loss and Personal Injury trials.  NC LAW TALK July 21, 2014 Episode

NC LAW TALK – Emerging Topics in North Carolina Law

Please feel free to contact Bill Powers at (704)-342-4357 or bill@PowMac.com for additional information or media inquiries, see also posts on other topics:



Mike: Welcome to another addition of NC Law Talk. I’m civil litigation attorney Mike Daisley appearing today with …
Bill: Bill Powers.
Mike: A criminal defense attorney with Powers Landreth Law Firm. In today’s edition and podcast, we’re going to talk a little bit about the use of expert testimony, particularly in the defense of DWI work, and a little bit about some of the changing in law about what it takes to get expert testimony admitted.
Bill Powers, you have used a ton of experts in a ton of different cases through the years. Tell us how experts are used and how they help you help your clients who’ve been accused by the state of driving while impaired.
Bill: Right, well, and to tell you the truth, Mike, I’d like to maybe take this as a chance to say that, this is an area of law that applies to wreck cases …
Mike: Mm-hmm. (Affirmative) Absolutely.
Bill: … just as much as it applies to DWIs.
Mike: Which is what I do. I tend to help folks who have been involved, from the civil side, who’ve been harmed by drunk driving. Bill, of course, helps folks who have been harmed and their families have been harmed, in a sense, they’ve been accused of drunk driving.
Bill: Together we will work these kind of cases. Not that I ever would represent the criminal defendant. Let’s
Mike: The first thing we do is avoid any conflicts.
Bill: We are separate law firms housed under the same building, and we do, our firm, my firm, and your firm, will work together on a presentation of these claims where you have a wealth of the civil experience and, not that I haven’t done it myself, but you’re primarily known for that.
Mike: Right.
Bill: I’m primarily known for DWI work. That’s why it’s been a neat
Mike: There is an instinct element of pursuing cases for folks who have been harmed by people who have been accused of drunk driving. Interestingly, in North Carolina, that’s one area in which the limit, the cap, on punitive damages, does not apply. You can be, and we’re getting a little off the subject quick, but we’ll get back to expert testimony but just
Bill: That’s a podcast. That’s
Mike: I know. Exactly. A quick aside is, is that, I mean, you could be, seriously, a … somebody who is accused … a bank that’s accused of systematically robbing little old ladies. You could be a polluter of a stream. You could do all number of things, and the statutory cap on punitive damages would apply to you in a civil case. There’s one thing where the cap does not apply, and it’s if you have harmed someone through drunk driving. From a civil standpoint there are no punitive damages cap on that. It shows you the gravity with which the general assembly looks at drunk driving.
Bill: I don’t see that ever changing.
Mike: No,
Bill: We may have plenty of tort reform in North Carolina, but I don’t see that cap …
Mike: No.
Bill: … ever going away.
Mike: That makes a challenge for you, because you’re in there defending people who have been accused of drunk driving, and there’s this attitude of constitutional rights. What constitutional rights?
Bill: Right.
Mike: Hang them high. Throw them out. You know?
Bill: Mm-hmm. (Affirmative)
Mike: There’s always a balance in the law. It probably drives people crazy about lawyers, but we always seem to look at competing rights. That’s just the way of the system. In terms of you working on your end on the criminal defense, and my end in civil litigation and helping folks who have been harmed by drunk drivers, again, that area of expertise in terms of knowing blood alcohol levels, of knowing how impaired somebody is.
Bill: Right.
Mike: Those are the sorts of things that will really help a civil case, and obviously those are things that you absolutely have to know in order to be able to adequately defend somebody’s who’s been accused of it.
Bill: Right, and as lawyers, as attorneys, we are charged with a duty to zealously represent our side. You may not always agree with it personally, but … That’s how a criminal defense lawyer is able to help in a plaintiff’s case. It’s one of those things that it’s … it reminds me of those old commercials we had. You got your chocolate in my peanut butter and you got my peanut butter in your chocolate.
Mike: In your chocolate. Yeah.
Bill: I don’t know why we didn’t think about this before, because when … I think how we got into it was that civil lawyers were always calling me, saying, “Tell me about this device” or “Tell me about standardized field sobriety tests.” That’s why I think it’s worked well.
Mike: Well, we’ll have to flip a coin as to who’s peanut butter and who’s chocolate of this duo.
Bill: Right. I guess it’s just basically taking two hyper-focused practice areas and taking the strengths from both of those and being able to apply it to the benefit of a family member’s that been injured.
Mike: Absolutely. Back on track then.
Bill: [Crosstalk 00:05:01].
Mike: How do experts help you, though, in your practice?
Bill: Well, it’s become, both in the civil side and the criminal side, so incredibly complicated that in order to explain the science or the technology or the dexterity tests, you have to have someone who can get on the stand who has a substantial amount of background, training, practical experience, whatever, research, who can get on the stand and say, “Ladies and gentlemen of the jury, I’m going to take a bunch of moving parts and something that looks very complicated, and assemble a very tight, neat package for you.”
In North Carolina, there’s three number word, 702, 702 referring to …
Mike: Rule of evidence.
Bill: … rule of evidence.
Mike: Yeah.
Bill: Rule of evidence 702 applies to opinion testimony, opinion being given a certain deference, because it comes from an expert. We have seen a incredible change in this year, maybe the last 18 months, of that application, both in criminal cases for and against the defendant, as well as the civil cases. Now, I think you all have dealt with it a little bit longer, but North Carolina’s what we call a Daubert state now, so give me the law school version of Daubert [crosstalk 00:06:30].
Mike: Well, Daubert is the … just simply a case back several years ago in which more than ever before the judge acts as sort of a gate keeper. Typically you would think of all the evidence coming in, all the testimony, and the judge acts sort of as a referee as to whether certain testimony is something the jury should hear. If it’s relevant, if it comes in according to the rules of evidence. There’s been an old phrase that a lot of the testimony will come in, a lot of the evidence will come in, that the judge will tell the jury. You can believe all, some or none of …
Bill: Or any part.
Mike: Or any part of what a witness says. That’s up to the jury to decide, and that usually throws a lot of the gate wide open to let evidence come in, and let the jury decide. Here, though, what’s happening with expert testimony, is the judge has been placed in a much stronger position to act as the fact finder first, before letting it go to the jury.
Bill: Now, some would say too strong.
Mike: Well, exactly. This is an interesting area because I don’t think anyone would confuse our political beliefs. I think you’re a [crosstalk 00:07:55].
Bill: No, I’m … There’s a reason I’m sitting on the left and you’re sitting on the right.
Mike: Yeah, but it’s interesting. I like to say to people, “I’m so far right I’m almost left.” I’ve gone completely around.
Bill: This is something that I’ve written on. This is something that I’ve commented on publicly, whether it be Lawyers Weekly or writing briefs or whatever. I am not a fan of the new 702, and when I say new 702, it’s been there, but it’s been modified and now it’s being interpreted [crosstalk 00:08:25].
Mike: Well, I’m not sure how much the words have changed. Well, I guess the words have changed, too, but more importantly, the court’s interpretation of those words is what’s changed.
Bill: Right. I think 702 was intended as a rule of inclusion, meaning that we wanted developing scientific thought to be presented in court. We wanted the juries to hear, or jurors or hear, the competing …
Mike: The latest theories.
Bill: Yeah, theories. Then let them decide.
Mike: Right.
Bill: We have a 200 year history of that. Just up the road in Iredell County was one of the first cases where expert testimony was allowed because of the character of the proponent, the person who gave it. It actually involved a case where a doctor was able to testify as to whether or not a person had been hacked to death with a hatchet or chewed up by a cow. The doctor never saw the injuries. The doctor was able to talk to a witness. The witness described what he saw, and because of the character and the inherent training and believability of the doctor, that was allowed to be considered competent …
Mike: Evidence.
Bill: … evidence, and reliable, and the jury could decide what to do with it or not. We’ve had this long, long standing tradition of that in North Carolina. We have that special jury instruction, in addition to, you are the sole finders of fact. We also have an expert opinion standard under the pattern jury instructions where it says what you do and you take into consideration their training, their bias, their opportunity to observe. I mean, we have an expert instruction. That is because North Carolina, being one of the King George Colony states and one of the … We were the first one to declare our independence. We knew the importance of the jury, and that the most important people, or body, in the courtroom are the juries or jurors. They’re not the judge. They’re not plaintiff or defendant or state or whatever.
It is very worrisome to me, and what we’ve predicted is going to happen, has happened, that the judge has become this super jury, discerning … taking away the role and the function of the jury, and saying, “I get to decide what I believe to be scientific or what I believe to be reliable” and thereby making North Carolina a motions state, meaning the cases are being kicked out based on a single person’s decision. That’s never what the framers’ intended. That’s not what our North Carolina framers’ of the Constitution or even the Bill of Rights intended. We have an absolute right to a trial by jury, where our disputes are settled by our peers, and people in power can’t control that.
By the way, North Carolina Court of Appeals decided in a case called the Howerton case that we were not going to be a Daubert state, that we trusted the jury system. Obviously there were certain … You know, you couldn’t bring in some spaceman from Mars scientific theory. The purpose of the judge as gatekeeper, just like any type of piece of evidence, was to prevent irrelevant or speculative theories to come in. But it’s gone the other way. The pendulum’s gone the other way. This is hurting the state as much as it is the defense in criminal cases, and I think it hurts … it’s going to hurt defense theories as well as plaintiff’s theories.
Mike: Well, I’m glad you made the point that, I mean, all rules of evidence, to a certain extent, by their nature, limit what a jury can hear. That’s the purpose of evidentiary rules. It’s a matter of degree. What I hear you saying is that the pendulum has swung too far, and that the judge in a criminal case has now sort of stepped into the shoes. Not sort of, but has stepped into the shoes, to listen to what a jury should be deciding rather than a single person.
Bill: Right, and I actually wrote an article on this. It’s somewhere out on the Web. Even from the beginning of these cases that came out, the courts of appeal have always, in a nice way, and if there are any judges listening, I always preface this in court, the average judge is no better suited to determine someone’s expert qualification than any …
Mike: [Crosstalk 00:12:52].
Bill: … in any area, especially a scientific or medical-legal type of thing, than an average juror. To have the judge discerning whether or not this person’s even allowed to testify is just wholly inappropriate in my mind. I fear for this, because this is a, to me, a legislative overreach. This is an instance where, again, I’m a federalist, where I firmly believe in the separation [inaudible 00:13:17] issues, the balancing processes and that the judiciary should and must be independent and the legislature, I think, is more concerned about getting elected or maybe more concerned about dismissing certain type of cases or ensuring convictions in certain type of cases. You just can’t seed that much individual power in a single person. Not to be disrespectful. I mean …
Mike: Well, speaking on it from more of a left side of this political spectrum, we’ve seen that a ton from this general assembly here in the last couple of years in terms of the folks in Raleigh, the wise, wise folks in Raleigh who apparently know all and see all and know so much more than the local juries. I mean, you talk about, you would think that the folks in Raleigh who talk about wanting to have local rule, wanting to have local power, that power’s best served close to the people, that’s a true conservative point of view, and yet when you look at the general assembly and what they have done time and again in terms of invading the jury’s power and taking it away.
Just a quick example from a civil point of view, or the damages caps. If a jury, having heard all the evidence, and heard a very competent, usually high-priced defense attorney, argue against damages in a civil case, and having considered all the evidence, see damages in a civil case to be up at a high certain level …
Bill: Run away jury.
Mike: … they would say, and the jury … the judge shall not tell the jury that a case is subject to caps. In other words, the jury’s kept in the dark. The jury may think, we’ve done very well by this widow or this … the parents of this child who have been totally … who have been permanently disabled and face millions of dollars’ worth of damages. We the jury can go back home thinking that we’ve done a good job, and yet the general assembly has now, not just empowered the judge, but told the judge, “You shall cut down and limit the amount of the verdict based on our wisdom, based on what we know in Raleigh, having never heard the facts of this particular case, we, nonetheless, will step into the shoes of the local jury and force the judge, after the jury goes home, to cut down on the rules or to cut down on the verdict.”
Bill: In an arbitrary way they decide it.
Mike: In an arbitrary way. It’s just something that … and again, this is where I become, frankly, I think, more conservative, to say, “No. That’s a government overreach. That is something that government should not do is to invade the providence of a local jury.” There are limits, of course, but when you tell a judge that, “Judge, you have no power, and if a jury goes above a certain amount in a civil case, you shall, after the jury goes home, make the judgment for less” than that’s just wrong.
Bill: I don’t know how this became a political issue, because a republican, Lincoln republican in … I’ll remind everybody, Lincoln was a trial attorney before he was president, and I know that term gets vilified by certain groups, but … and it’s amazing how often we hate them until we need them kind of deal, but a fundamental federalist, someone who believes in the separation of powers and the power vesting solely in the governed against the governors really should not want the legislator or the governor being able to say, “This is what you can do as a jury.”
Mike: Right.
Bill: I don’t understand, and I know it’s not popular politically in the tea party or republicans spheres, you know, everyone is into tort reform, tort reform, tort reform, and I don’t know if people understand … The logic is, well, we’re spending millions and millions of dollars defending these claims. We’re playing defensive medicine or whatever. I’m not saying it’s perfect. I’m not saying there aren’t faults in that type of system. I mean, frankly, I’ve been one that thinks that punitive damages should go back to the society and not to the individual, because it’s the society is the harm, and the reason we award punitive damages is to prevent those people from making the same mistake again.
Mike: A certain percentage will go back to the state.
Bill: Right, but I frankly … if you think of it in a criminal case, you get a fine or whatever. It doesn’t go to the police officer. It goes to the people of the State of North Carolina, because we’re trying to, by fining somebody, punish them in saying, “This is the cost of this crime.” In a civil case, not to say that counsel shouldn’t, if he gets that, get a fee based on that, I don’t think that person necessarily should win the lottery just because the person they happened to sue has been egregious in their activity. Not that they’re not entitled to punitive damages, but that’s the purpose behind punitive. Similarly, that person should be compensated fully and not have to rely on punitive damages. They should get what they’re … The way I look at it is, you get paid to be back in the condition that you were 30 seconds before the wreck, and if you can’t get me there, what’s it going to cost me to at least have some level of quality of life.
Mike: I’m glad this is being recorded, because I’m not sure too many people would understand how somebody on the political right and somebody on the political left could be this close together on some views regarding these things.
Bill: Well, I doubt many people agree with me on the punitive thing, but … Of course, I’d probably go back to the English system on picking juries to start with. Yeah, it’s a difficult thing, socially, that there are a lot of opinions about it, but the truth of the matter is, is that there should be a consistent application of law, so 702 should apply the same in a civil case as it does in a criminal case. 702 should be used as an opportunity as a …
Mike: As a rule of inclusion.
Bill: Right. Not exclusion. It should not be turning in a defensive tool to a sword, or …
Mike: It’s to encourage legitimate, cutting edge …
Bill: Thought.
Mike: … theories and thought …
Bill: And science.
Mike: … for the … Because all “scientific fact” was a theory to begin with.
Bill: Right. Ultimately the jury says, “Malarkey.” Or, “We agree.” Or, “We sort of agree.” That ultimate power is what separates our judicial system than almost any other one in the world. That was intentional.
Mike: Right.
Bill: That was intentional.
Mike: Right.
Bill: We are seeing 702. We’re seeing 702 applied. I’ve seen state experts excluded when I thought, “I disagree with them, but I think they have a right to express their opinion, and I think the jury has a right to discern who they believe or don’t believe.” The same thing in a civil case.
Mike: Well, you know, it’s … we could go on and on and on, on something like this, but this is, again, what the NC Law Talk podcast is about. We start on a certain subject and we may go to all types of different places, but basically it’s designed to make the viewers better consumers of legal services and make legal professionals, maybe, a little bit more up on the cutting edge issues. We would love any feedback you’d like to give.
Bill: And [crosstalk 00:21:31] policy was ever thought about in this way as opposed to an election as opposed to what’s best for North Carolina.
Mike: You know, one of the things, as we’re closing out, one of the things that I hear about the current general assembly, I never thought they would be saying this, but a lot of people are saying, “There are not enough lawyers serving in the general assembly, because they’re passing these laws with not a lot of thought as to how they’re going to get implemented.” Well, guess what? You’re going to need lawyers to implement the laws that you’re trying to pass. It’s not a bad idea to have some lawyers there that can sort of guide you a little bit as you’re passing this legislation.
Bill: I understand the complaint about the legislature being a little bit overly egalitarian, and again, there is a balance in all things. I don’t like the vilification of lawyers by legislators, nor do I like the summarily dismissing the thoughts as idiotic of an average legislature. I think the vast majority that I’ve ever met really cared deeply and think they’re doing the right thing. I hope, I pray, that people at least listen and come up with some … There’s some pretty smart people throughout the state, and maybe come up with some good ideas on how to deal with this.
Mike: Well, more for us to talk about next time on the next edition of NC Law Talk.
Again, we’d love to have your feedback. For NC Law Talk, this is civil litigation attorney Mike Daisley …
Bill: And I’m Bill Powers, and I would encourage people that if they have a question, you know, [inaudible 00:23:05] the podcast, or if you have a suggested topic, we’ll get to it. We try to avoid a specific answer to your inquiry, given a fact scenario, but I think we can give a … We’ve done this for a good number of years, answer generally what’s going on.
I do thank people for their time. We do like topics and ideas and we will continue to comment on upcoming laws or pending legislation or rulings by the court.
Thanks again, Mike, for your time.
Mike: Thank you, Bill.

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