I am having trouble cinvincing juries of the reliability of HGN. I have numerous studies on its reliability and I would like to have my officer read from some of the studies. I think they qualify as learned treatises because they are peer-reviewd and well accepted. What is the proper predicate for their admission? I cannot just say "learned teatise".

Thanks for the help

The predicate for the admission of part or all of a learned treatise (under TRE 803 (18)) is that your expert says that it is a "reliable authority" and that he "relied on" the treatise. This reliance can be anything from total dependence to general guidance or corroboration. It's a pretty simple predicate.

The treatise cannot be taken into the jury room; rather, the pertinent part(s) can be read to the expert, for the jury to hear him "agree" with the contents.

Predicate issues aside, my understanding of the learned treatise hearsay exception is that the testifying witness must be the type of expert who would be able to confirm the contents of the treatise - not because he uses the methodology the treatise espouses, but because he does the same type of research / performs the same types of analyses. In other words, an arresting officer wouldn't be qualified to speak to the reliability of some research study or other treatise propounding the reliability of HGN.

If that weren't the case, any practitioner of anything could bring in something written by someone else and use it to claim whatever he likes. I have a driver's license, but that doesn't make me qualified to read to the jury about studies of the physiological effects of alcohol in the bloodstream of drunk drivers (except possibly my own). You need an expert in the field. All the L.T. exception gets you is the ability to use one expert to quote other experts. This can save you lots of money and time that you would burn bringing in other expert witnesses.

Alternatively, you CAN use the L.T. exception to force a HOSTILE expert witness to agree to something contained in a learned treatise, and to get it in front of the jury that way. But you'd better be sure that it's something that particular expert would have relied on at some point in his career.

Wrestling with the same issues myself, I have two suggestions. I'll give the short version here to avoid tipping the State's hand to those defense-oriented lurkers.

1. The Nat'l Assoc of Optometry (can't recall the exact name) says HGN is a dang good way of detecting intoxicated drivers.
2. Get your particular officer's stats on administering SFSTs on the board.

Contact me with questions...

Georgette
Asst. County Attorney
Williamson County
(512) 943-1132

Maybe the jury doesn't understand what your officer is describing. Do you use the trick with the ping pong balls to demonstrate the difference between sober and intoxicated eyes?

I'm just a layman but I've watched a dwi trial or two and the details of the science seem to be mostly lost on the jury.

---- EDIT ---

Also, in my opinion, the word 'Nystagmus' is somewhat distracting. I think some people are sitting there trying to figure out the word or how to spell it or whatever. Write in on the board the first time it is mentioned so they can look at it before you go repeating it.

[This message was edited by AlexLayman on 07-26-04 at .]

I have video clips from the NHTSA training of exactly what each clue of HGN looks like. In some courts, we've been able to show those as demonstrative aids. We have to make it clear it's not the D's eye and have the officer testify that it is an accurate depiction of what HGN looks like and would aid the jury in undertanding his/her testimony. Some judges freak out and won't let it in, but based on demonstrative evidence caselaw, they should. Find out what your judge thinks ahead of time so you know whether to spend the time on it.

Contact me at slwagner@tarrantcounty.com and I'll email you the clips.

Sherri