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Trial Court Erred When It Permitted A Police Officer To Testify As A Lay Witness About The Detection Of Accelerants By Canine

Simpson v. State – No: 2833, Sept. 25, 2013 (COSA Sept. Term 2012) (Hotten, J.).  On appeal from the Circuit Court for Prince George’s County (Pearson, J.) COSA held the trial court erred when it permitted a police officer to testify as a lay witness about the detection of accelerants by the canine he handled, where the officer had specialized training, skills, and experience in his field. Although COSA determined the error was harmless, the case is useful to block police officers from testifying to opinions that are informed by specialized skills, training, or knowledge even when the officer has personal knowledge of the facts in a case.  See also, Ragland v. State385 Md. 706, 725 (2005) (police officer with personal knowledge of the basis for his opinion nevertheless must be qualified as an expert where the officer’s opinion is based upon the officer’s specialized skills, training, or knowledge).

Practice Pointers: Police officers with personal knowledge of facts in a case may often be asked by the State to give opinions about a person’s state of mind (i.e., intoxication) or whether conduct may be consistent with criminal activity (i.e., distribution of drugs) that are informed by specialized training, skills and experience, thus making the opinion expert testimony.  Rules 4-263 and 5-702 require disclosure of an expert’s opinion and the basis for the expert’s opinion sufficiently in advance of the trial to permit the defendant to challenge the opinion testimony under Frye/Reed or 5-702. The State may try to circumvent these discovery and disclosure requirements, claiming the witness is a “factual” witness with personal knowledge instead of an “opinion” expert witness. In most instances, “facts” are “opinions” (for example, the dog “alerted” to an accelerant is an opinion, not a fact) that must satisfy the requirements of 5-702 (expert is qualified to give the opinion; there is an appropriate “fit” of the opinion to the case; and a sufficient basis exists for the opinion to be to be considered reliable).  Move in limine to block undisclosed expert opinions, and if not excluded, consider a reliability challenge under Rule 5-702.

 

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