NC DWI Guy #12: How to Utilize an Expert Witness

Jake Minick:
Hello fellow freedom fighters, and welcome to episode 12 of the NC DWI Guy podcast. Today, we have a special guest on the program, Doug Scott. Doug is a former law enforcement officer with more than 20 years of law enforcement experience and hundreds of DWI arrests. He was the first certified DRE in North Carolina, the first certified DRE instructor in North Carolina. He helped to get the North Carolina DRE program off the ground. Doug has attended countless seminars and courses on the pharmacology of alcohol. You’ll hear more about that in episode 13. His curriculum vitae stands at a massive 50-page long explanation of his credentials.

Jake Minick:
Doug is an incredibly prepared expert in every way, and we’re very fortunate that he has agreed to take the time to talk to us today about the importance of having an expert witness involved on your case. He’ll also be back for episode 13, next episode, where he is going to do a mock voir dire. So what I thought we would do today, Doug, in terms of purpose, is really to go over a little bit about why an expert can be helpful on your DWI case, and then also go through a sample voir dire, in terms of trying to tender as an expert witness. So in terms of why an attorney should get an expert witness involved, and there’s all kinds of different experts that might be helpful to a case, but in terms of just a broad general response, what is helpful about having an expert involved on your case?

Doug Scott:
Well, in my experience, which I’ve been doing expert testimony for about 12 years now, attorneys may not understand the topical areas to the depth, obviously, that an expert will and may overlook really critical things about the case, which the expert would be able to identify when they evaluate the discovery, video, and make a much stronger case for the defense attorney by using them. The expert witnesses, I think they’re going to look if they’re good, they’re going to look at the state’s case’s strengths, as well as the weaknesses, and they’re going to let you know about those strengths. If they’re honest, they may actually help you to know when you should seek a plea, or may choose not to go to trial because of something. But I think experts are just really helpful because they have such a greater depth of understanding and silos, so to speak, of information. A pharmacologist has a little different way of looking at things than a toxicologist, for instance.

Doug Scott:
Using me as an example, I have studied pharmacology, but I also was a law enforcement officer. I taught standardized field sobriety tests, so I look at those with a very critical eye. I was a drug recognition expert instructor, so I look at the absences of the use of DREs, as well as how they use the DRE in certain cases. Contrasting those, a pharmacologist, a PhD in pharmacology or toxicology, will not know the DRE protocol, will not be able to testify as an expert about that, and won’t know anything about horizontal gaze nystagmus. So sometimes a case is better suited to an expert who may have a broader base of knowledge in a more comprehensive area than a strength. And, as a friend of mine with a PhD says, “I know a topic a half inch wide, and a mile deep.” Sometimes it’s better to have that guy who knows the couple of hundred feet deep, but a mile wide.

Jake Minick:
Right. Yeah, no doubt. I think one of the misnomers in terms of expert witness, is the witness part of it. Because I think that for a lot of us, when we think of an expert witness, we think of the person that is helping us when the case is set for trial in the courtroom. And talk about the value that an expert can actually provide, well before you get to the case being set for trial, or certainly before testimony begins. What is it that you’re doing in your process before the case is ever in the courtroom?

Doug Scott:
Yeah, I think that’s certainly 50% or more of the value of an expert. The first thing I do is review the case, all the discovery videos, so that way we get that old two minds are better than one sort of approach, at least a second set of eyes looking at everything. I like to brainstorm with attorneys and discuss the strengths and weaknesses, and areas to avoid, areas to expand on during trial. Also can get involved and go and do a site analysis at the site of the arrest, look at the condition, take pictures. Was it a suitable location to do standardized field sobriety tests? What was the lighting like? What is traffic like there? And experts can do, in some cases, their own experiments. I recently did a full DRE evaluation right after a man was arrested, in fact. He was brought to my home by an attorney, and I did an evaluation within less than an hour after he was seen by the law enforcement involved. So that’s just an example of some of the things that an expert can do.

Doug Scott:
And also, scientific literature review. We may already have… I have a library of scientific literature in my house. I’m always accumulating it, doing research at the Health Science Library at UNC or at college libraries, and downloading what would be expensive articles, typically $40 or more, for free at these university libraries. So the experts, some of them still have access, like Dr. Wilkins at Duke. We have greater access to that scientific literature, and may already have an abundance of applicable literature we’re using. An attorney wouldn’t have to spend any time or have any of your staff trying to identify relevant literature. So I think those are the real advantages, just off the top of my head, about involving an expert and considering them more of a consultant than just a witness.

Jake Minick:
Yeah. I definitely think that that has been tremendously powerful, in terms of the times that we’ve had you involved in some of our cases. And I would say, particularly on the research end of things, last case that I can think back to was a habitual DWI case, where there was a serum sample that was taken at a hospital. And getting all of the literature that you had done research on, but then also digesting that and being able to explain what these articles are trying to communicate. Here are the specific places within those articles that are helpful, in terms of bringing out during testimony and using in arguments, was tremendously helpful, in terms of trying to take my shallow knowledge of that serum sample type of analysis to a much deeper level in a very short amount of time, because you had done all the work on it previously.

Doug Scott:
Well, I appreciate you saying that. And that’s my hope. Marijuana is a great example. I think 2017, the US Department of Transportation released about a 35 page report on marijuana impaired driving to the US Congress. And it is chock full of great quotes that you can extract from it, information that is really enlightening related to the issue of marijuana impaired driving, and I think very helpful for defense attorneys. It’s been remarkable to me that very few people, and even some of the other experts that I communicate with, were not aware of that government publication. It’s very difficult, I think, for the state to argue that there’s no credibility or a lack of credibility in the information contained in a document that’s provided by the US government to Congress.

Jake Minick:
I think that’s where an expert, again, just comes in so handy. Because as attorneys, I think we’re really looking at the statutes and the case law, and so oftentimes, missing the SFST manual, and missing the research articles that have been done in peer reviewed studies, and missing the documents from Congress that might be helpful when it comes to a particular issue. And yes, those things may not be referenced in case law, but they clearly are important, in terms of communicating to a judge or a jury the reason why certain evidence is or is not important.

Doug Scott:
Sure. I think many attorneys, for reasons I don’t understand, appear to think they have to understand and be their own expert in a lot of cases, and letting go of that is just so helpful. And letting a consultant help you, it’s just going to be much more powerful and reveal so much more information. I think it’s simple. You’re spending your time doing CLEs related to your job. Your expert is spending time, if they’re truly maintaining an expertise, reading pertinent scientific peer reviewed journal articles and continuing education courses specifically and narrowly related to their area of expertise. So they’re going to have a much better command of pharmacology, as an example. Marijuana is a drug. Then you’ll be able to do without putting an awful lot of oil in that midnight lamp you’re burning, and save you time and make you more efficient.

Jake Minick:
Well, in terms of shifting over to maybe the expert side of things within the courtroom, before we maybe try to do a brief sample of a voir dire back and forth, what would you suggest in terms of attorneys that would be a place for improvement? Or maybe a better way of thinking about it would be, what are some of the biggest mistakes that you see attorneys make, when it comes to examining an expert witness, whether that’s in terms of preparation or in terms of actual courtroom process?

Doug Scott:
Well, I think both are really important, and they’re both weaknesses for a number of attorneys, unfortunately. The first one would be failure to prepare. And I’d say, you do have to understand the topic well enough to ask follow up questions, even if you’ve been given a list of direct questions to ask your expert and a list of cross questions for the state’s experts. If you don’t understand the topic well, you can open a door with a question during cross examination of the state’s expert, but not know how to walk in the room once you’ve opened the door, because you don’t know the followup questions, so to speak, using that analogy, to ask.

Doug Scott:
That’s what I guess, sadly, I’ve observed so much, that I’m sitting in the courtroom just wincing in pain because the door was open, but then the defense attorney stopped. They didn’t ask any more followup questions. And I think it’s likely because they didn’t prepare enough to know what followup questions to ask, to understand the information well enough, or they’re under such stress during that trial, that they have difficulty slowing down their mind and thinking analytically about, “Oh, wow. That guy just gave me an open door, and now I need to follow up on it.” And maybe another thing, and I’m rambling a bit, but another thing is probably thinking about how I understand the information, but how am I going to make sure the jurors are being taught? It’s an educational process.

Jake Minick:
I would say that’s particularly true with expert testimony. Because if you present all of the expert testimony through scientific concepts and scientific language, but then don’t connect it to, why is this person impaired by marijuana, or why is this person drunk, it’s really going to be lost in a lot of ways on the trier of fact, whether that’s the judge or the jury. So yeah, I think that’s a really important part of the preparation process, is how do I take this overarching scientific principle, and then communicate it in a way that an average person can understand?

Doug Scott:
To go to that, I think the old, well, it’s an old saying for me, is they don’t know what they don’t know. So, I often see or sense during trials that the defense attorney feels, for some reason, hurried. And I always want to go, “Slow down. Make sure that the judge or jurors get it explained, and so now, they understand the relevance of the information that you’ve laid out. And don’t expect them to understand it.” Play to the lowest common denominator on that jury, and make sure that you have asked enough followup questions so that it is explained well, and they understand the relevance of that expert testimony, whether you’re trying to impeach the testimony of the other side, or trying to develop credibility and understanding for the expert testimony from your side. That’s clearly a problem, I think.

Doug Scott:
And slow down, and think analytically about it. I’ve never been an attorney, so I don’t want to hurt anybody’s feelings in that. It’s got to be a difficult thing to do, to try to keep it all together mentally. What’s being asked? What’s being answered? What’s my next question? Is the jury getting this? It’s quite a complex task you guys have. But slow down, think analytically, and look at your expert. Sometimes, I know I’m trying to give face signals, like, Ask a follow up question, don’t stop there,” kind of thing. And this goes for your preparation too. Trust your experts. We do know more, probably.

Jake Minick:
And I think that part of it too, you do want to make sure that you are prepared, in terms of the question that you’re asking, but certainly in terms of one of the benefits of having an expert witness. And then, I think this also comes to trusting your expert, is that you don’t want an expert that is sugarcoating anything for you. And I know that I’ve sent you a number of cases where you’ve looked at the report, and after looking at it, it’s like, “This is not a good case for trial.”

Jake Minick:
And that I think is a good communication piece for me then, to go back to my client and say, “We’ve had an independent person review this. There doesn’t appear to be an attack where we maybe were thinking there might be some sort of an angle or question mark. This has been reviewed.” So it helps with that conversation. But it, again, also just helps in terms of the courtroom, when you have an expert that you know is just looking at the circumstances, looking at the facts, and then offering a valid opinion. I think that that is a really helpful thing, both in terms of client communication, but then, like you just said, also trusting your expert in the courtroom, as well.

Doug Scott:
Yeah, obviously you’re right about all that. I was just looking at a note I’d written, and it reminded me of a case. Talking about preparation, and going back for a minute, I’m going tell you a very short story. I had, recently, before the courts were shut down, a case where the defense attorney asked me to look at the discovery, send the report, so I sent him an eight page typed report on their case. And it was comprehensive. And then they sent me back an email and asked me if I would be willing to prepare them a list of direct questions to ask me. Those were in the eight pages that I prepared. So what does that tell me? The attorney clearly had not read the eight page report that I had gone to the trouble to write. I’m laughing. I’m looking at your face on my computer screen and saw you smiling too. You know that I don’t charge an excessive amount for my work. I try to be reasonable.

Jake Minick:
Very reasonable.

Doug Scott:
I did not really charge enough for an eight page typed report that already had direct questions bulleted within it, to have an attorney who then didn’t read my report and ask me to provide something I’d already provided to them. So really it’s, read our reports, and a lot of times it’s really easy to take direct examination questions from that material. And I often provided enough that you can create a great list of cross examination questions for the state’s witnesses from what’s in my report as well.

Jake Minick:
That’s great. And those reports are extremely helpful, again, regardless of whether you are called to testify as an expert in a case, to get a second set of eyes looking at a report that is an expert set of eyes at minimal cost is kind of a… It doesn’t make sense not to tap into the resources that are available when you have the ability to do that.

Doug Scott:
I’m going to add, I was at a CLE for experts and defense attorneys in Raleigh that IDS put on a year to two years ago. And the executive director, I believe it was Tom Maher, I might not be pronouncing his name correctly. But he asked a question. He said, “How many of you all in here have used experts at district court level?” And there were probably a hundred people in the room, and very few hands went up. And he goes, “I’ve asked my staff, why not? We’ve got money for that, point in cases.”

Doug Scott:
And so I want to make the point also, don’t be afraid to file a motion and ask for appointed fees if you’ve got clients who can’t afford a witness on their own. Because I haven’t had a case denied for expert fees that I can remember in the last eight years or so. So it’s not that… A lot of times I hear, “Well, my client can’t afford one.” Don’t be afraid to ask or try to seek that out through IDS as well. Not just at superior court, either. But if you don’t think it will be practical or… You know your district court judges better than anyone else in your own area. But don’t forget about that.

Jake Minick:
Yeah. I think that that’s a really helpful point, that that is available and is really meant to level the playing field. Because in most DWI cases, you have one, if not multiple, state witnesses that are getting tendered as expert, whether that’s as expert in HGN, administration of standardized field sobriety testing, pharmacology, toxicology, DRE, whatever it might be that they are getting tendered as an expert in. And so, it’s already a one sided show in a lot of ways, because there’s only state witnesses in a number of DWI cases. There’s no witnesses whatsoever on the defense end, but if there is an opportunity to present a good defense witness that can undermine some of the testimony that is being made by an expert, it really is just leveling the playing field.

Doug Scott:
Absolutely. I think that’s a selling point. The state has got their officer, they’ve got the DRE, they’ve got the chemical analyst, they’ve got the lab analyst, they’ll sometimes bring in a local pharmacist or even qualify the lab analyst as an expert in toxicology.

Jake Minick:
Accident reconstruction, whatever it might be.

Doug Scott:
And it’s absolutely unfair to your client if they can’t have an expert as well. And so, I know that’s how a lot of it’s been put forward. I wanted to say something about not putting on evidence and believing that you have a better chance for the last argument.

Jake Minick:
Yeah. I would love to hear your thoughts on that, because that’s definitely something that I think we, as a defense bar, spend a lot of time talking about with each other. Should we put on evidence? Should we have the last closing? If we put on evidence, does that tell the judge or jury that we have some sort of burden of proof? Or by not putting on evidence, are we able to say this is all on the state? So yeah, I would love to hear your thoughts in terms of that particular mental dilemma.

Doug Scott:
Yeah. Let me just say that, in my experience and observation, now in maybe two dozen cases, I’ve had the opportunity to see a defense attorney choose not to put on evidence after having hired me. So I was able to watch and see the whole trial, and then see what the effect was. And overwhelmingly, it does not give them an advantage. They have lost the cases. Well, I don’t want to say they’ve lost the cases, but the outcome of the case has been a guilty verdict. And in virtually all of those cases, I would say I believe that the jurors did not understand the significance of what they hadn’t heard, maybe from the state, where a defense attorney could have taken an expert and pointed out to the jurors, how weak the state’s case was, how they failed to investigate, failed to engage a drug recognition expert, how the pharmacology was not consistent with science and impairment, how the officers failed to do field sobriety tests, and what the significance of that was.

Doug Scott:
And they left it all to their own ability to articulate a strong closing argument. And well, it better be a damn good one. To get all that across in closing, that you could get across in several hours or more, depending on the case, with one or more experts, and actually give the jurors time to hear that from a credible witness, to digest it, to compare and contrast to the information they’ve been given by the state, and through followup questions with your expert, to teach the jurors the significance of the lack of DRE evaluation, of the inconsistencies between the evaluation and the officer’s training, their symptomatology matrix, where they weren’t correlated, or how the information the state failed to provide about the pharmacology of the drug, which is why it’s not likely the person was impaired. I’m rambling on here as I’m well known to do.

Jake Minick:
No, I think that that’s really a helpful thing to think through. I think some of that is a pride issue for us as attorneys, that we think that the jury is really putting a lot of weight into our closing argument, and we want to be able to address whatever the prosecutor is putting in their closing. But I think it’s case specific, in terms of when you want the ability to let the state present its case and just rely on the fact that they haven’t proven their side beyond a reasonable doubt, versus appearing to have any kind of burden of proof if you put on evidence. But on the flip side, when you get closing argument, last close, because you haven’t presented any evidence, then you have forfeited the opportunity to present evidence last.

Jake Minick:
So you’ve decided that the arguments are more important than the evidence, because the state gets to present its evidence first, and then you have the opportunity to be the last word when it comes to evidence. Again, state could present rebuttal evidence, but a lot of times don’t when you put on evidence. So you get the opportunity to present last evidence, and I think that a lot of times, jurors are, and I would say jurors in particular over judge, but I think jurors are putting a lot of weight into the evidence. And so, again, like you said, if you’ve already lost the evidence war, and now they’ve already heard from the prosecutor, you better have a damn good closing argument by the time that it’s your turn to present.

Doug Scott:
Awful good. Well, what I think is, I’ve talked to jurors. I’ve had that opportunity, too. And of course, I had the opportunity to talk to jurors following criminal cases when I was a police officer for over two decades as well. So I’ve seen this from both sides. And I’ve heard them say, “Well, the defense didn’t have any evidence.” They heard everything from the state’s perspective and look at it like a scale, the scale of justice. Well, if the state tells them everything that they know, and they don’t understand it well, or don’t understand why it’s not logical, or credible, or scientific, then that scale is still sitting there, bottomed out for the state’s side. If you’re expecting your closing argument to pull it back the other way, I’d say think twice about that. I really have not seen that work out well. Maybe one or two cases.

Doug Scott:
And unfortunately, James, I’ll say this. And I won’t name any names, but I can tell you that I’ve seen some very unfortunate cases, where I actually said before, when we had a conference after the state closed, and they told me they were planning on doing that, I’ve voiced my concerns as tactfully as I can, and can think of one right now, where there was just no evidence of impaired driving at all. And the defense attorney had done a great job of objecting and keeping some testimony out, but then he never told the jury really why that was significant that they didn’t hear it. And his client was found guilty, and unfortunately was a friend of mine from college. And so I really felt inclined to tell her that I thought it was a bad move, which I try not to ever… I ask for permission from attorneys before I talk to the clients. But that’s just why I say, really think long and hard about that. Add this question. The jurors, do they know what they don’t know? Can I get that to them, just in a closing argument? It’s unlikely, I think.

Jake Minick:
Right. You’ve got a lot to explain in a closing, just dissecting the evidence, and then you’re also trying to help jurors understand what proof beyond a reasonable doubt is. And when you don’t present evidence, I think that’s what you’re relying on, is this standard of proving something beyond a reasonable doubt, which is so foreign to most of us, in terms of trying to analyze things through that lens. So again, I think it’s a case by case determination. But I like the thoughts that you’ve offered, because I do think that they are, in some ways, counter cultural in terms of how we approach cases as a defense bar, with our mindset being the standard of proof in a lot of ways is on our side, and we’re going to rely on that.

Jake Minick:
Maybe that kind of strategy works better in district court, once you get to a jury. But I think there’s a lot of jurors that want to hear from the defense side of the table. And you can do your best in voir dire with the jurors to explain, “We’re under no obligation to present evidence. What would you do if I didn’t present any evidence?” These are questions that I asked pretty routinely in voir dire. If I stood over here and didn’t ask any questions on cross examination, and we didn’t present any evidence whatsoever, would you still be able to find my client not guilty if the state has not met its burden of proving beyond a reasonable doubt? And they all nod their head and say, “Yes, I’ll do that.” But I know in the back of their mind, they’re thinking, “Why would you do that?” I think one of them once said to me, “Well, maybe I could. But I’d think you’re a pretty bad lawyer.”

Doug Scott:
Yeah. I sit there and think, this just doesn’t make sense in the opening argument, that you’re going to hear from our expert, Mr. Scott, over here, and they point to me, and why this is not a good case, whatever, I’m just trying to be real simple. And then, at the end of the state’s evidence you say, “We’re not putting on any evidence.” What are the jurors left to assume? Well, they had an expert witness, but they didn’t put him on, so he must not have found anything wrong with what the state said. You got to think through that. If you’re not going to put on any evidence, don’t tell the jurors you’ve got experts in the room. And that guy over there, sitting there for two days taking notes, don’t tell them he’s an expert on your side, unless you’re going to call him.

Jake Minick:
Right. Exactly. No, that’s absolutely… Yeah. I’ve definitely seen that backfire on the state a number of times, not so much on the defense end, just because we so routinely don’t present evidence, but where the state has said, “Here’s what you’re going to see in evidence.” And then it never comes out, it’s objected to and sustained, or they just are never able to present that witness for one reason or another. And it’s such a distraction to the jury, even if it is a nonissue, the fact that they were promised this was going to be brought up in trial and then it never came up is this major deal for the jurors, that they’re there thinking, “Why was this not presented, even if it, again, is a nonissue?” Join us next time on the NC DWI Guy podcast, where Doug and I will do a mock expert witness voir dire.