NC DWI Guy #13: Mock Voir Dire of Expert Witness

James:

Hello, fellow freedom fighters and welcome to episode 13 of the NC DWI Guy Podcast. Today, we have a special guest, Doug Scott, on the program. Doug talked with us last episode. So if you have not already listened to episode 12, go back and do that now prior to listening to this episode. Doug is a former law enforcement officer with more than 20 years of experience and hundreds of DWI arrests. He was the first certified DRE in the state of North Carolina, the first certified DRE instructor in North Carolina. He helped to get the DRE program off the ground here.

Doug has attended countless seminars and courses on the pharmacology of alcohol, which you will hear more about today as we go through a mock Voir dire. Doug’s Curriculum Vitae is 50 pages long showcasing his credentials to speak on a number of areas that he has been qualified as an expert witness in. Today, we’re excited to have Doug continue the conversation that we began last episode, and we’re kicking it off with Doug offering a mock Voir dire of tendering a expert witness.

What I thought we might do, Doug, and we can do this kind of briefly in terms of some of your answers maybe being a little bit shorter, concise than they would be in the courtroom, because I feel like a good kind of expert Voir dire, depending on the kind of expertise that you’re looking to tender your expert witness in can go on for hour, two hours, longer than that, just depending on the circumstances. But I thought we could just run through a kind of expert Voir dire to qualify you as a witness. So in terms of the kind of maybe just kind of going through one in terms of the pharmacology of alcohol. We could just kind of run through that briefly.
So I’m just going to pretend like we’re in trial for a minute. Your honor, I would next like to call to the stand. Defense would next call Doug Scott. Can you tell the court your name?

Doug Scott:
Yes. Julian Douglas Scott. I go by Doug.

James:
Where do you live?

Doug Scott:
I live in Carteret County in Cape Carteret, North Carolina.

James:
Can you tell the court about your educational background?

Doug Scott:
Sure. I have a bachelor of arts from North Carolina State University in political science and a concentration in criminal justice. I’ve completed three graduate certificates, one in police management from North Carolina State University, one in forensic drug chemistry from the University of Florida, and one in addiction in the brain from the University of Washington.

James:
Okay. Thank you. Mr. Scott, tell me what your current occupation is.

Doug Scott:
I’m a consultant in the area of drug and alcohol impairment. Been running a business called Drugs & Alcohol Risk Management Incorporated for about 20 years now.

James:
Okay. What prior law enforcement experience do you have?

Doug Scott:
I have 20, roughly 22 years prior law enforcement experience. I began as a police officer in a small town in Wake County where Raleigh is located, Fuquay-Varina and then changed after three and a half years to the Cary Police Department where I remained for 18 years. I had various assignments in tactical teams and patrol, but spent most of my time either as a traffic officer or a commander of a 10-man traffic safety unit, focusing on crash investigations and serious crash investigations and fatalities and impaired driving enforcement.

James:
So many of your assignments related to traffic law enforcement.

Doug Scott:
Yes. Approximately, well the entire time in Fuquay, of course I was just a patrol officer in [inaudible 00:04:59] as a patrol officer, traffic enforcement is an integral part of that, but I spent specifically approximately 12 to 13 years of my time with Cary assigned as a traffic safety officer or a traffic safety team supervisor, commander.

James:
In terms of the training that you have related to alcohol and drug impaired persons, tell me briefly about what type of training that you have on that front.

Doug Scott:
Sure. I attended and successfully completed the IACP and NHTSA DWI Detection and Standardized Field Sobriety Team curriculum in 1992, and also the Instructor Training Curriculum in 1992. Successfully completed the IACP and NHTSA Drug Evaluation and Classification Training Program in 1995 and the Instructor Training Program in 1997. We’re certified then from 1995 through 2007 as a drug recognition expert or drug recognition expert instructor.

I have attended approximately a thousand hours of training related to crash investigation, speed measurement, ride on and time-distance measurements, chemical analysis, alcohol screening test devices, and seminars specifically related to alcohol and drug impaired driving at the national level. I’ve attended 11 of the IACP NHTSA National Drugs and Alcohol Impaired Driving Conferences, as well as a number of other specialized schools related to marijuana or club drugs, et cetera.

James:
Were you involved in the foundation of the current North Carolina DRE Program?

Doug Scott:
Yes. As the only DRE in North Carolina, I wrote a grant and founded the North Carolina DRE Training Program in the year 2000 and coordinated that program for the first three years that it existed, teaching officers in the first, I believe six 2-week DRE schools and all other aspects of that certification process.

James:
Do you continue to attend training to enhance your knowledge of field sobriety testing and drug recognition?

Doug Scott:
Sure. I look forward to attending the National Drugs and Alcohol Impaired Driving Conference this year, if it is not postponed due to COVID-19 pandemic, and an example, but I have also, as another example I’m currently enrolled at Harvard Med School in an online course for doctors, PAs, pharmacists, that is a pharmacology course, and enrolling in a graduate certificate at University of Florida, which will begin the summer session, which is a medicinal pharmacology and therapeutics, which are five graduate level courses for doctors, PAs, nurse practitioners, pharmacists, and researchers.

James:
Do you still teach some of the National Highway Traffic Safety Administration curriculums?

Doug Scott:
Yes. I’ve taught now in the past about 1,500 law enforcement officers standardized field sobriety testing, but since leaving law enforcement, I’ve taught NHTSA courses through the North Carolina Advocates for Justice, primarily. About once a year, I’ve taught either the ARIDE, Advanced Roadside Impaired Driving Enforcement course for attorneys to participate and learn what the officers are taught through that course curriculum or the standardized field sobriety testing course. We’ve alternated years doing one course one year, and then the next we do the other standardized field sobriety testing. So yes, continue to teach those.

James:
In terms of your time as a law enforcement officer, did you have opportunity to arrest impaired drivers?

Doug Scott:
Yes, both as a patrol officer and even as a traffic sergeant and a traffic lieutenant. I continued to arrest impaired drivers throughout my law enforcement career. Arrested somewhere over 500, 500 is a conservative number. We didn’t have digital records back in the ’80s and early ’90s so I can’t give an exact number, but I continued to arrest impaired drivers on through to the year 2003.

James:
Have you received training in the pharmacology of alcohol?

Doug Scott:
Yes. Go ahead.

James:
Yeah. Just describe what that was.

Doug Scott:
Well, originally there’s a block of instruction on pharmacology alcohol in the training received from the state of North Carolina to be a certified chemical analyst, but I’ve received training on pharmacology of alcohol in the training I received both in standardized field sobriety testing, and then again in DRE school, there is an entire block of training on alcohol pharmacology. Again, I studied alcohol pharmacology in my graduate training at the University of Florida in courses on the medicinal aspects of drugs of abuse and in forensic toxicology there, as well as the entire, virtually the entire three semesters that I studied addiction in the brain through the University of Washington Nursing School, [inaudible 00:11:37] in great depth to alcohol pharmacology.

James:
As a normal course of your occupation and as an expert witness, do you routinely consult with other professionals in your field?

Doug Scott:
Sure. It’s not necessarily often, but I do maintain close ties professionally to discuss topics and share literature with who are experts in toxicology, pharmacology, vision science and topics like that.

James:
As a normal course of your occupation and as an expert witness, do you routinely conduct independent study and research on topics related to your field as well?

Doug Scott:
Yes. I maintain a library of scientific literature that I’ve acquired from independent research. I do that by going to the University of North Carolina Chapel Hill Health Science Library, or the library in the past at Campbell University, which is near my last residence and accessing their accounts with a number of scientific peer-reviewed journals and download those articles for future use.

James:
Have you previously been qualified as an expert witness and given expert testimony regarding the detection and recognition of drug and alcohol impaired persons?

Doug Scott:
Yes. I’ve been qualified as an expert in that area over 225 times in five states now.

James:
Have you previously been qualified as an expert witness and given testimony regarding drug recognition evaluations and the DRE program?

Doug Scott:
Sure. In North Carolina superior courts and district courts, I’ve been allowed to give expert testimony on that topic well over a hundred times.

James:
Have you been previously qualified as an expert witness and given expert testimony regarding the pharmacology of drugs and alcohol and approximately how many times?

Doug Scott:
Yes. In North Carolina’s superior and district courts, the state of Virginia, in West Virginia and federal district court in Ohio as well, I’ve been qualified in that area and allowed to give testimony over 80 times.

James:
That is why as I said at the beginning of this podcast that I was not doing you justice in terms of my opening reading and introduction, because there is just a plethora of different studies and fields that you can give expert testimony on. I think, for our purposes, we will kind of stop there. If we going to continue, it probably would have been something that I might have elaborated on a few of those topics a little bit more. If this was in-court, would have kind of closed with asking, have you reviewed any of the documents or video related to this specific case that is in the courtroom? Were you present for the testimony that was presented earlier, whether by the state or by the defendant? As a result of the preparation and testimony you’ve heard, would you be able to have your testimony be based upon sufficient facts and data? Is your testimony going to be the product of reliable principles and methods? Have you applied those correctly to this case?
So would have kind of gone further into that, and the reason why I think it’s helpful to go through a sample of that Voir dire is that I honestly think that one reason why we as defense attorneys don’t utilize more expert witnesses is because we are not tasked generally with having to put on evidence. So in terms of having to lay a proper foundation, we’re not used to having to do that, and it sometimes feels uncomfortable. But your expert hopefully would be able to kind of showcase here is what I am equipped to give testimony on, here is my Curriculum Vitae, here are the questions that can be used to lay the proper foundation so that you can then tender me as an expert in this particular area.

So it’s not rocket science. It’s actually pretty easy to kind of walk through that, walk down that path, even for an expert that is not used to testifying in court. So again, that’s why I wanted to go through that because I think it’s helpful to just see the… Again, it’s very little work on my end to ask those questions. All of the work is on you to kind of explain why it is that you’re an appropriate witness for the particular case.

Doug Scott:
Yeah, I think that you’ve made me think of a couple of cases. One, and it goes back to preparation, and two, it has to do, you mentioned ego for your profession. I’ve walked into cases before into the courtroom and had an attorney look at me just minutes before their case call and says, “I’m really nervous. This is the first time I’ve ever tried a case.” But they didn’t tell me that and they didn’t ask me for information or they’d say, “The case is literally getting ready to be called. What kind of questions should I ask you to get you qualified? What should I qualify you as?” And they’re waiting till… So I actually, and you know this, James, I have a go by that I send now of a minimum sort of a bulleted questions to ask me in a somewhat… I mean, you asked a great deal of them.

Because I nearly got left out to dry on the stand several times several years ago because the attorneys just didn’t prepare. They didn’t know what they ask me. You can’t just say, “Have you been to college? Have you been a police officer? Well, your honor, I’m going to qualify or tender Mr. Scott, or the expert in,” because, and I really liked hearing you say this, James, remember the Daubert standard and make sure that you hit those three prongs during your Voir dire in trying to tender each of your witnesses, and then go back and subjected to by the other side, and remember to argue those and how you’ve met those three.

Knowledge, experience, training, education. You don’t have to have a PhD to be an expert. I’m not. If you had sufficient facts and data to review and to form your opinions, and if you applaud those in a way that’s generally accepted by the scientists or the community that you’re within giving a testimony. That’s so important and I see so many attorneys that don’t do that. Again, I think they’re hurried, nervous, a number of things. But those are all great points you made.

James:
I think that it’s really been one of the things that’s been helpful about the times that we’ve used you as an expert witness is it’s not as much been about kind of here is this person that’s going to kind of come in at the last second and offer testimony in the courtroom. You just are constantly helping us learn what the issues are and learn about the case, and in terms of like preparation for court, you take the time ahead of being in the courtroom for trial to say, “Ask me. Tell me what you want to ask me in terms of testimony. If you have concerns or questions about how to walk through the process of tendering me as an expert,” which I know that I probably paid you the first few times to kind of almost go through that process, because again I just didn’t have enough situations, courtroom situations where I was actually tendering a witness in the courtroom that just didn’t feel very comfortable.

So to have the ability to practice that before being in the courtroom, it just made things more smoother and made me feel more confident about being able to present that in the courtroom. So you’ve done an incredible service in terms of you’re not charging hourly to kind of give that level of preparation. That was all just kind of, “Hey, just spend whatever time you want to spend,” making sure you’re comfortable with the issues and questions and how you’re going to kind of frame your direct examination. So yeah, very much appreciate that. I really appreciate, Doug, you taking the time to come on and help us to learn how to improve our practice and how to better utilize expert testimony in the courtroom.

Doug Scott:
Oh man, it’s been a pleasure. I hope I didn’t ramble too much.

James:
Not at all. No. I love the stories. The war stories are always fun.

Doug Scott:
We’ve become friends, I think over, I don’t know, 10 years, eight years, something like that. I enjoy helping. It gives me purpose. I can’t do it all for free, but you know that. I can’t say that for all expert witnesses, but don’t be afraid to ask for help upfront and think about it. What was hard for me, and I’m kind of rambling here, closes to be asked, well, what’s your fee to do this case? So I figure, well, based on time and district court or superior court and then the attorney comes in and asks me for a lot of extra things. I do, I have helped, and I do try to do that, but I’m sort of an exception maybe. So think about as should prepare for a case and use an expert witness, ask upfront, “How much are you charging? I would like for you to help me make a list of direct and cross examination questions for this case.”

It’s a felony. This case is not a misdemeanor appeal, so I will need an expert report that I can provide to the district attorney. How much extra do you charge for that? Or at least make the expert aware that this is an appeal case. It’s already in superior court. It’s going to take longer than district. The expert may not be experienced enough to ask these questions or they just forget to. So have a good conversation upfront and it makes it all easier than go back again.

James:
Yeah. I love that very much, Doug. That’s helpful to kind of think through that. Again, I think at the end of the day, you’re shooting yourself in the foot if you have the perfect witness on the stand to help communicate to the jury an issue that they need expert testimony on, but then you don’t know how to present that person as an expert, and now all of a sudden that there is questions about whether or not this person is able to be qualified or is actually going to be qualified in the particular fields that you need them qualified in to give the expert testimony. So it’s not fun to discover how to make that happen in realtime during trial in the courtroom. You see that, I’ve seen that many times on both in my own practice. I’ve seen it with defense attorneys. I’ve seen it in young prosecutors, that moment where it’s kind of like, “How did I not… Why was this officer not able to talk about horizontal gaze nystagmus?” It’s like you didn’t ask the five questions that need to be asked in order to tend to this person as an expert.

So spending that time, preparing for that and letting your expert know, with you, this is not like a point of concern, but for an expert to kind of be able to go over with you their Curriculum Vitae in addition to just going over the facts of the case, because you want to make sure that that person is going to be able to actually testify in the courtroom and be able to get that helpful information about the facts into the actual record. So again, Doug, thanks very much for coming on and taking the time with us. We really appreciate it.

Doug Scott:
Thanks, James. Have a good day and stay healthy and safe, okay?

James:
You too, Doug, take care.

Doug Scott:
All right.