Monday, December 2, 2013

Expert Exclusion Error?

State v. Scott, 2013 VT 103

This case arises from a car accident.  On his way to work, defendant—with several coworkers in his truck and at some speed above the posted limit—passed a coworker’s vehicle and collided with a third car.   The driver of that car died from injuries; defendant broke his leg.  Defendant was charged with grossly negligent operation of a motor vehicle, death resulting.     

A deputy sheriff—certified as an accident reconstructionist by some fancy police organization—investigated the accident and did some on-site testing, which included drag-sled (a weighted sled used to measure drag on surfaces) testing and a bunch of math stuff.  He concluded defendant was driving at 61 miles per hour, and so testified at trial.

Of course, defendant tried to keep that testimony out, filing a pretrial motion to exclude under Vermont’s “what-is-an-expert-exactly . . .” rule—Vermont Rule of Evidence 702.  The trial court denied defendant’s motion.  And so at trial, the coworkers in defendant’s truck testified and defendant had his own expert testify that the state’s expert was full of pre-processed sandwich meat.  The jury acquitted defendant of grossly negligent operation, but convicted defendant of negligent operation. 

Before sentencing, defendant tried to get the trial court to rule that “the decedent’s family members could not be ‘victims’ entitled to speak at the sentencing hearing.”  Defendant’s argument was primarily semantic and focused on the statutory definition of victim, and a lack of causal connection between the offense he was convicted of and decedent’s death.   

At sentencing, the trial court rejected both the state’s and defendant’s speed estimates, weighing in somewhere in the middle.  The trial court also found that defendant’s negligence was the proximate cause of decedent’s death, based in part on the parties’ stipulation that the accident caused the decedent’s death.  Decedent’s mother was allowed to speak as a victim; defendant spoke on his own behalf.   Defendant ended up with a sentence of 30 days to one year, with 30 days to serve and a three-year term of probation.  He appealed.   

Defendant’s first argument is that the trial court should’ve excluded the state’s expert.  The SCOV discusses this point at some length, but finds no error.  The SCOV notes that the trial court acts as the gatekeeper for expert testimony, and that this means the trial court has wide discretion in deciding whether to admit or exclude such testimony. 

Rule 702’s purpose is to separate the science from the scientician and to exclude “junk science”—that is, so-called “scientific” evidence that is of a custom-fabricated-for-litigation variety. 

Here, the SCOV notes that the expert’s calculations were based on reliable-enough methods and principles.  The flaws in the expert’s methodology (mostly relating to the drag sled use) went more to the weight of the evidence than threshold admissibility.  The SCOV also notes that the proper adversarial back-and-forth between the experts played out as it should in court.  And so all was as it should be.    

Despite the suggestive title of this summary, the SCOV finds no error in the trial court’s refusal to exclude the state’s expert’s testimony (thus answering our query, boys and girls, in the negative). 

Defendant’s next argument is that at sentencing, the trial court improperly determined facts and allowed impermissible victim-impact testimony. 

The SCOV begins its discussion by reviewing the generally broad victim-definition and the victim-unavailable-then-a-family-member-may-address-the-court provisions of Vermont’s statutory sentencing scheme.  The court below found that decedent was a victim of defendant’s convicted-of crime and that defendant’s negligent operation of the vehicle was the proximate cause of decedent’s death.  Accordingly, decedent’s mother was allowed to testify at sentencing and her testimony was one of many factors the trial court considered in imposing defendant’s sentence.         

The SCOV notes that the Vermont Rules of Criminal Procedure allow a prosecutor to introduce “any information relevant to sentencing” at sentencing.  The SCOV concludes “that the sentencing court was well within its discretion when it found that defendant’s negligence was a proximate cause of the accident and considered the facts of the fatality resulting from the crash, including its impact on the decedent’s mother, at sentencing.”  The SCOV further notes: (1) that the acquittal on gross negligent operation did not resolve causation as a matter of law; (2) that while causation is not an essential element of negligent operation, that doesn’t make it  irrelevant or improperly considered at sentencing.

Defendant argues that a case dealing with restitution principles with a similar procedural history supports his contention that the trial court should not have considered the decedent’s mother’s testimony at sentencing.  The SCOV rejects this argument, reasoning that the restitution is much more limited in scope than victim-impact principles, despite identical statutory definitions, in both cases, of “victim.”     

And that’s it.  An expert’s methodology need not be perfect and a deceased victim’s family member can testify at sentencing—though it’s worth noting that the same family member likely would not be entitled to restitution. 

Have a safe drive home, and watch your speed.   

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