Sunday, April 30, 2006

Officer Administering HGN Test May Testify as Lay Witness, Says New Hampshire Supreme Court

In State v. Dahood, 148 N.H. 723, 814 A.2d 159 (2002), the New Hampshire Supreme Court held that the Horizontal Gaze Nystagmus or "HGN" test is admissible as a matter of law, under Daubert, as circumstantial evidence of intoxication, so long as a proper foundation is offered through a "qualified witness."

If the police officer who administered the HGN test is offered as that "qualified witness," must the officer be tendered as an expert, whose testimony would therefore be subject to pretrial disclosure requirements? No, the New Hampshire Supreme Court has now held. The officer may testify as a lay witness. See State v. Cochrane, No. 2005-021 (N.H. Apr. 26, 2006).

posted by pn at 7:09 PM  

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Fed. R. Evid. 702: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.