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November 29, 2008
Hypothetically Speaking: Court Of Appeals Confirms Convictions Because Trial Judge Supplemented Incomplete Expert Hypothetical
The recent opinion of the Court of Appeals of Mississippi in Teston v. State, 2008 WL 4914960 (Miss.App. 2008), gives me my first opportunity on this blog to address an issue I recently taught in my Evidence class: the posing of hypotheticals to expert witnesses. And what the case shows is the critical role the trial judge can play in ensuring that their use does not result in a verdict that can be challenged on appeal.
In Teston, Krystal Marie Teston was convicted of three counts of driving under the influence and negligently causing death to another and one count of driving under the influence and negligently causing serious injury to another. The facts giving rise to the case against Teston were as follows:
"On September 10, 2004, five college students in an SUV were traveling east on Interstate 10 in Biloxi, Mississippi. The driver of a black Honda, who was later identified as Teston, was also traveling east on I-10. [Teston] swerved into the path of the SUV. When the black Honda veered in front of the SUV, the driver of the SUV lost control of the vehicle, which crashed into the concrete median and flipped over....Three of the passengers-Lindsay Miller, Maksim Sisoev, and Beth Finch-were killed in the accident. Joshua Miller, the fourth passenger, was severely injured, and Nicole Thurman, the fifth passenger, received minor injuries."
Thereafter, Officer Wesley Brantley of the Biloxi Police Department arrived at the scene of the accident and spoke to Teston. At Teston's trial, Officer Brantley testified that his initial contact with Teston was very brief and that she did not appear to be impaired. According to Brantley, during this first contact, Teston identified herself as the driver of the black Honda and told Officer Brantley that she witnessed the accident, but she did not mention her involvement in the accident.
Brantely also claimed at trial, however, that he went to speak to Teston for a second time about 60 minutes later and noticed that her speech was slurred, she was mumbling and confused, and her eyes were dilated and glassy. Brantley testified that he believed that Teston was impaired but that he did not smell any alcohol on her breath.
Based upon the testimony of Brantley and other witnesses, the prosecution posed a hypothetical to Dr. Barbieri, its State's expert witness, which led Dr. Barbieri to conclude that Teston was impaired at the time of the accident. So, how does a party use an expert hypothetical at trial? Well, basically, at trial, an attorney tells the expert witness to assume certain facts and asks for his opinion based upon those assumptions.
Now, unfortunately, the Teston opinion does not mention the facts that the prosecutor asked Dr. Barbieri to assume, but it is clear that he failed to ask him to assume that Brantley did not not any signs of Teston being intoxicated when he first talked to her. Luckily for the prosecution, the court stepped in after Dr. Barbieri gave his initial conclusion, leading to the following exchange:
THE COURT: Dr. Barbieri, assuming in addition to those characteristics [the State] gave to you as part of this hypothetical, you also considered that within minutes of the accident one of the officers identified Ms. Teston as a potential witness, had a conversation with her about whether or not she observed the accident and has testified that he did not at that time observe any of the impaired conditions which he observed some 50 minutes later, being slurred speech, mumbling, confusion, etc., would that change your opinion?
DR. BARBIERI: Well, that would tend to indicate that either he misrepresented or misobserved [sic] the first time or something happened in that interval.
THE COURT: Would it change your opinion?
DR. BARBIERI: It would only-it would not change my opinion
THE COURT: All right. Subject to that objection, [defense counsel], I'm going to allow the testimony."
If an expert hypothetical is not complete and accurate, it can lead to reversal, so Teston teaches us two important lessons. First, if you are going to use expert hypotheticals, make sure that they are complete and accurate. And second, you need to hope that you have a trial judge as alert as the judge in Teston, who will fill in the blanks.
November 29, 2008 | Permalink
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The only problem was Judge's questioning was outside the presence of the jury, so its a mystery how the Court of Appeals found such could cured the hypothetical. A point they ignored on rehearing which took a year to deny. The Supreme Court granted cert in April and has oral argument set on July 12, 2010.
Posted by: Tim | Jun 4, 2010 6:51:15 PM