The Romberg Imbalance: Mitchell v. State Upsets the Equilibrium of Admissible Field Sobriety Test Results in Georgia
| Jurisdiction | Georgia,United States |
| Publication year | 2018 |
| Citation | Vol. 69 No. 2 |
The Romberg Imbalance: Mitchell v. State Upsets the Equilibrium of Admissible Field Sobriety Test Results in Georgia
Eric F. Kramer
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In Mitchell v. State,1 a unanimous Georgia Supreme Court held that the State must provide a scientific foundation for the Romberg Balance test (Romberg test) before its results are admissible against a defendant in DUI cases.2 To satisfy the standard set by the supreme court in Harper v. State,3 the State must show that a scientific procedure has reached a "stage of verifiable certainty" to produce reliable results.4 Additionally,
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the State must show that the procedure was "substantially performed . . . in an acceptable manner."5 The trial court acts as the gatekeeper by determining the admissibility of a scientific procedure's results under Harper,6 and may only admit those results after finding that the State has satisfied both prongs of the Harper standard.7
In DUI cases, there are two categories of field sobriety testing: tests constituting scientific procedures, which are subject to Harper; and tests eliciting simple behavioral observations, which are not.8 Before Mitchell, the Romberg test was uncategorized because Georgia's appellate courts tended to affirm DUI convictions based on other evidence.9 On appeal from the denial of his motion to exclude the results of the Romberg test, Quinton Mitchell argued that the Romberg test fell within the former category, and the trial court should have conducted a Harper analysis before admitting the results.10
The supreme court agreed, stating the Romberg test involved matters beyond "common sense or experience," and reversed the trial court's denial of Mitchell's motion.11 Under Mitchell, the State must now fight an uphill battle to admit the results of a Romberg test. While trial courts may take judicial notice of the verifiable certainty of once-novel scientific procedures,12 currently the Romberg test lacks the support necessary for proper judicial notice.13 Even if courts could take judicial notice of the Romberg test, the State must also satisfy the second prong of Harper by showing that the Romberg test was substantially performed in an acceptable manner.14
Mitchell is just one of the supreme court's recent decisions that have trended toward harsher admissibility standards for field sobriety test
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evidence.15 These decisions place a heavier burden on the State while protecting defendants from convictions based on questionable scientific procedures or evidence acquired through a violation of a defendant's rights.
On October 5, 2014, a Fayette County sheriff's deputy initiated a traffic stop after observing Quinton Mitchell fail to maintain his lane.16 Upon approaching Mitchell's car, the deputy observed several indicators of impairment. Specifically, the officer observed the strong odor of alcohol on Mitchell's person, Mitchell's speech was slurred, and his eyes were bloodshot and glassy. Mitchell also had difficulty retrieving his license from his wallet. While Mitchell denied drinking prior to the stop, he initially refused to perform field sobriety tests. Mitchell relented only after a Fayetteville police officer, who arrived to assist the deputy, informed him that he would be arrested if he did not perform the tests.17
The officer then administered a battery of field sobriety tests, including a Romberg test.18 In administering the Romberg test, the officer instructed Mitchell to "shut his eyes, tilt his head backwards, and estimate the passage of 30 seconds."19 The officer noted that Mitchell was outside the thirty-second estimation, did not keep his eyes closed, and swayed back and forth during the test. Mitchell also performed the horizontal gaze nystagmus (HGN) and walk-and-turn tests, but declined to perform the one-leg stand test due to knee problems. The deputy arrested Mitchell based on his performance on the field sobriety tests, as well as other observations indicating Mitchell's level of intoxication.20
Mitchell moved to exclude the results of the Romberg test in the Fayette County State Court,21 arguing that, under Harper v. State, the results of the Romberg test were inadmissible.22 At the hearing on Mitchell's motion, the Fayetteville police officer testified that the purpose
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of the Romberg test is to gauge a suspect's internal clock for accuracy and observe eyelid tremors. He claimed that alcohol or drugs could impair a suspect's ability to perceive time, and that an unimpaired person of "reasonable faculty" could estimate thirty seconds "within five seconds, plus or minus." However, he conceded that he was unaware of any studies confirming the accuracy of the test or the reliability of the five-second deviation as a measure of impairment. Instead, the extent of the officer's knowledge of the test stemmed from his participation in drug recognition expert training,23 The State provided no further scientific evidence regarding the Romberg test in opposition to Mitchell's motion.24
The trial court found that the Romberg test was not a scientific procedure, and the court was not required to conduct a Harper analysis before admitting the results of the Romberg test.25 Mitchell again contended on appeal that the Romberg test was subject to Harper, and a unanimous Georgia Supreme Court agreed.26 The court held that determining intoxication via the Romberg test, either by eyelid tremors or the accuracy of a suspect's internal clock, is not a common-sense matter that would be obvious to a layperson.27 Thus, the trial court erred when it failed to determine whether the Romberg test had reached a scientific stage of verifiable certainty in denying Mitchell's motion, and that portion of the trial court's order was reversed.28
A. The Frye Test Fails to Steady the Admissibility Standard for Scientific Evidence in Georgia Criminal Cases
Prior to Harper v. State, courts used various admissibility standards to determine the reliability of certain scientific procedures.29 Even today,
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Georgia maintains a long-standing general rule that foundational evidence via expert testimony on "any question of science, skill, trade, or like questions" is always admissible in criminal cases.30 This rule remained relatively unshaken until Harper,31 where the Georgia Supreme Court narrowed the admissibility standard regarding the results of novel scientific procedures.32 However, the nebulous case law prior to Harper challenged trial courts to come up with their own methods of determining the reliability of certain scientific procedures.33
Some courts echoed the reasoning of the United States Court of Appeals for the District of Columbia Circuit in Frye v. United States34 to lessen the potential harmful impact of evidence rooted in novel areas of science.35 In Frye, the court held that the systolic blood pressure deception test—a test designed to measure the influence of emotional triggers on a subject's blood pressure—had not gained enough recognition in the scientific community to warrant admitting its results into evidence.36
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Under the Frye test, results of a scientific procedure were only admissible if they were generally accepted in the scientific community.37 Although mentioned in some cases involving similar evidence, the Frye test was never expressly adopted in Georgia.38 It was not until Harper that trial courts were given definitive guidance on how to approach evidence based on less-established scientific methods.
B. The Georgia Supreme Court Builds a Sturdier Admissibility Standard
The Georgia Supreme Court rejected the Frye standard in Harper, stating that the Frye test "is not an appropriate way to determine the admissibility of a scientific procedure."39 On appeal from his murder conviction, Harper argued that a psychologist should have been allowed to testify as to statements Harper made while under the influence of sodium amytal, or "truth serum." While the psychologist testified that using sodium amytal was an accepted medical and psychological practice, he was not allowed to testify that Harper denied killing the victim while under its effects.40
The supreme court held that the psychologist's testimony was inadmissible because the use of sodium amytal was not verifiably certain to provide reliable evidence that Harper's statements were truthful.41 Under Harper, a scientific procedure must have reached a "scientific stage of verifiable certainty" for its results to be admissible.42 To make this determination, trial courts may rely on expert testimony, exhibits, treatises, or case law from other jurisdictions regarding the reliability of
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the procedure in question.43 Once enough courts have found that a procedure is verifiably certain to produce reliable results, trial courts may take judicial notice of the procedure's validity.44 However, admissibility determinations under Harper must be based on foundational evidence provided by the State rather than merely relying on the consensus of the scientific community.45
Alternatively, courts may take judicial notice that the procedure "rests upon the laws of nature" and therefore does not require a scientific foundation.46 While the court did not specify what evidence is necessary to show that a procedure rests upon the laws of nature,47 courts have held that a layperson could observe the results of such a procedure without any specialized knowledge.48 As such, the State is not required to provide foundational evidence before a trial court may admit these common-sense observations into evidence.49
Harper remains the controlling standard for admitting the results of a scientific procedure against a defendant in Georgia criminal prosecutions.50 The Supreme Court of the United States sounded the death knell for the Fry...
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