Form 207: Objection to Drug Testimony by Nonmedical Persons at Trial

• Library: Criminal Law Forms (ABA) (2013 Ed.)

Form 207: Objection to Drug Testimony by Nonmedical Persons at Trial

Public Defender for the Boro of Metuchen
500 Main Street
Metuchen, NJ 08840
Attorney for the Defendant

State

vs

Defendant __________

Municipal Court of Metuchen

OBJECTION TO DRUG TESTIMONY BY NON MEDICAL PERSONS AS EVIDENCE AT TRIAL

TO: Municipal Prosecutor
Metuchen Boro Municipal Court
500 Main Street
Metuchen, NJ 08840

This Court Should Exclude the Drug Influence Evaluation Because the Drug Recognition Evaluation Technique on Which It Is Based Is Not Generally

Accepted in the Scientific Community

No New Jersey case has considered the admissibility of the DRE technique and the use of a DIE like that reported in the present case. For purposes of our legal analysis, the technique can be analogized to HGN. In New Jersey, two cases have considered HGN — State v. Doriguzzi¹ and State v. Maida,² which Doriguzzi effectively overruled. In other states, several cases have discussed HGN, but few, if any, have addressed Drug Influence Evaluation DIE. Consequently, most of the cases cited and discussed herein deal with HGN — i.e., the voodoo science of detecting intoxication from the involuntary twitching of eyeballs. However, these cases and discussions apply with equal if not greater force to DIE as to HGN. Indeed, HGN is only a part of DIE,³ . DRE deals with several observations and tests that only a physician might be qualified to make and do. Thus, while the following discussion emphasizes HGN, the legal principles apply to DRE and DIE, as well.

A. The Drug Influence Evaluation Based on the Drug Recognition Evaluation Technique, like Horizontal Gaze Nystagmus, Is Novel Scientific Evidence

DRE and DIE, like HGN, represent new or novel evidence. As noted by NJ ICLE lecturer John Menzel, "In determining whether a scientific technique is 'new',...use by police officers seems less significant a factor than repeated use, study, testing and confirmation by scientists or trained technicians."⁴ "HGN testing has been repeatedly challenged in court, with varying degrees of success, in ... other states, and accordingly its courtroom use cannot be fairly characterized as 'routine' or settled in the law."⁵ Given the history of legal challenges to admissibility of HGN in other states, "it seems appropriate that we deem the technique 'new' or 'novel' for purposes of" evidentiary analysis.⁶ "To hold that a scientific technique could become immune from [evidentiary] scrutiny merely by reason of long-standing and persistent use by law enforcement outside the laboratory or the courtroom, seems unjustified."⁷

DRE and DIE are also scientific evidence. Like HGN, this technique is distinguishable from other field sobriety tests in that science, rather than common knowledge, provides legitimacy for the testing.⁸ The premise of DRE and DIE is "the scientific principle" that consumption of certain categories of drugs "causes" the manifestations attributed to that category when evaluated in the DRE.⁹ As such, it is subject to the requirement that it be generally accepted within the scientific community before this Court can consider it. Indeed, "[t]he majority of jurisdictions that have considered the issue have held that the HGN test is scientific evidence, most requiring that the Frye foundation requirements for admissibility be satisfied."¹⁰ Kansas, discussing alcohol and HGN, followed the majority in this regard, holding

Alcohol's effect on a person's sense of balance is common knowledge. The same cannot be said for HGN. The HGN test is based upon scientific principles and exceeds common knowledge. We hold that the HGN test results are scientific evidence. As such, the Frye foundation requirements for admissibility must be satisfied.¹¹

The same can be said of the various factors in DIEs — e.g., HGN test; vertical nystagmus test; measurements of pupil size and reaction; convergence of the eyes; measurements of pulse, blood pressure, and body temperature; and examination of hands. From the way DRE and DIE were presented in the present case, this Court should hold that they, like HGN, are novel scientific in New Jersey.¹²

B. Of the Alternative Standards for Admission of Novel Scientific Evidence, New Jersey Continues to Follow Frye Rather Than Daubert in Criminal Cases

Two standards of proof concerning acceptance of novel scientific evidence currently compete for acceptance in our courts today. The first is the "general acceptance" test, commonly called the Frye test, after Frye v. United States, which phrased the test this way:

Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is first made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.¹³

The second standard, based on the premise that legislatively enacted Rules of Evidence supersedes the common law Frye test, was discussed in the U.S. Supreme Court case, Daubert v. Merrell Dow Pharmaceuticals.¹⁴ Daubert found that Frye "was superseded by the adoption of the Federal Rules of Evidence"¹⁵ based on an analysis of the Federal Rules of Evidence, which, of course, parallel the New Jersey Rules of Evidence.

Faced with these two competing standards, our Supreme Court held that, in New Jersey criminal cases, "we continue to apply the general acceptance or Frye test for determining the scientific reliability of expert testimony."¹⁶ Furthermore, the law in New Jersey requires that the party offering novel scientific evidence bears the burden of proof.¹⁷ "[T]he best time to make the record on admission of such evidence is in a Rule 104 hearing."¹⁸ Trial courts are in a "better position to shape the record and make factual determinations, [to] digest expert testimony as well as review scientific literature, judicial decisions, and other authorities."¹⁹

"Proof of general acceptance within a scientific community can be elusive."²⁰ "Satisfying the test involves more than simply counting how many scientists accept the reliability of the proffered technology."²¹ "Proving general acceptance 'entails the strict application of the scientific method, which requires an extraordinarily high level of proof based on prolonged, controlled, consistent, and validated experience.'"²² Essentially, a novel scientific technique achieves general acceptance only when it passes from the experimental to the demonstrable stage.²³

General acceptance, however, does not require complete agreement over the accuracy of the test or the exclusion of the possibility of error.²⁴ Neither is it necessary to demonstrate that the techniques, methodology, and procedures are infallible.²⁵ Nor is it necessary that acceptance within the scientific community be unanimous.²⁶ In making its findings, the trial court should remember that witness credibility is less important than witness competence, at least "[t]o the extent that general acceptance focuses on issues other than a witness's credibility or qualifications...."²⁷

C. The State Cannot Establish Any Relationship Between the Results of the Drug Influence Evaluation and the Consumption of Drugs or Driving Impairment as a Matter of General Acceptance Within the Scientific Community, and Admission of the Drug Influence Evaluation in Evidence, Like Horizontal Gaze Nystagmus, Was Error

In the present case, the State failed to offer any testimony in support of the premise that DRE and its DIE are generally accepted within the scientific community as a reliable indicator to establish that a person is under the influence of drugs. N.J.R.E. 702 governs the admission of expert testimony. The rule provides, "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...