[DV_listserv] Expert Witness Case Law

[Domestic Violence issues]

(From DOJ's Appellate Division Legal Update)

Prosecutors: If you have cross-examined Dr. Julien, can you please email me with the case information (defendant's name, case number, jurisdiction, year), brief description of the case facts, and about what topic/issue Dr. Julien testified? We get quite a few requests for information about Dr. Julien. I have some case information, but I know that there is a lot more out there. THANKS!

EVIDENCE-EXPERT TESTIMONY (OEC 702): In prosecution for domestic-assault
offenses in which defendant claimed that he had taken numerous drugs and had no
memory of the incident, the trial court committed reversible error when it precluded
Dr. Julien from testifying that defendant, due to his drug use, may have lacked an ability to
form the charged "criminal intent" during the assaults.

State v. Hazlett, 269 Or App 483, __ P3d __ (2015) (Lane) (AAG Dave Thompson).

FACTS: Based on defendant's violent assault and sexual abuse of the victim, a woman with whom he had
an intimate relationship, he was charged with first-degree unlawful sexual penetration, first degree
sexual abuse, fourth-degree assault constituting domestic violence, strangulation
constituting domestic violence, unlawful use of a weapon, and harassment. At trial, defendant
testified that he and the victim had had consensual sex the night before the incident and that the
next day he had taken a number of drugs, including what he thought to be liquid morphine,
Oxycodone, and Xanax. He testified that the drugs had caused him to pass out and that he had
no memory of the incident, only partial memory of someone other than the victim being present,
and no memory of the police or his arrest. Following defendant's testimony, defense counsel
called Dr. Robert Julien, a retired anesthesiologist, to testify about the drugs that defendant had
testified he took and their effects.

The trial court (Judge Debra K. Vogt) held an OEC 104  hearing to determine Julien's qualifications as an expert.
Julien stated that he held advanced degrees in pharmacology, which is the science of how drugs affect living organisms,
and had done research in psychopharmacology, the study of how drugs affect the brain and behavior. He
noted that he had testified in court as an expert in toxicology pharmacology around 60 times.
Defense counsel asked Julien, hypothetically, what symptoms a person of defendant's size would
show if the person had taken the drugs defendant said he had ingested with some amount of
alcohol. Julien testified that he would expect the person to appear sedated, with slurred and
garbled speech, glassy eyes, droopy eyelids, confusion, and trouble standing up. He also said
that he would expect blackout, which he explained is a loss of memory and is "essentially drug induced
dementia, very similar to what you would see in somebody who had organic dementia
with a disease such as Alzheimer's." Julien cited an article he had written-"To Intend or Not to
Intend: That is the Question."-in which he had explained the difference between a person who
is unconscious and a person who is in a state of drug-induced dementia. The latter person,
according to Julien, is unable to form new memories and that affects the person's ability to form
intent. Julien gave the following examples: "If you've had a Benzodiazepine for your
colonoscopy and you don't remember your colonoscopy. If you've signed a contract during that
time, that would be an invalid contract because you were drug demented as indexed by the fact
that you couldn't form memory." After hearing Julien's testimony, the court allowed him to
testify in front of the jury about the drugs defendant had testified to taking, the symptoms they
produce, and whether the description of defendant's behavior on the night of the alleged crimes
was consistent with those symptoms. But the court prohibited Julien from testifying about
defendant's ability to form criminal intent, concluding that he was not qualified to opine about
that. The jury found defendant guilty on the charges. He appealed, contending that the court
erred when it prohibit Julien from testifying about his ability to form criminal intent.

Held: Reversed and remanded (Nakamoto, J.). The trial court erred by excluding the
proffered evidence. [1] Defendant sufficiently preserved the issue he raised on appeal:
Although Julien did not specifically testify during the OEC 104 hearing that a person suffering
from drug-induced dementia is unable to form criminal intent and the defense made no offer of
proof in that regard, "Julien's testimony, as well defense counsel's arguments, established that
Julien had an opinion about the effect of dementia on a person's ability to form intent and what
that opinion would be. ... On the whole, the record demonstrates that the court understood the
substance of the evidence that defendant sought to introduce through Julien's testimony."
[2] "The record demonstrates that Julien had education, experience, and knowledge that qualified
him to testify about the effect of drug-induced dementia, or blackout, on a person's ability to
form intent," despite the fact that Julien was not a psychologist or psychiatrist. Under OEC 702,
"a witness is not assumed to be disqualified merely because the person lacks a particular
educational or professional degree." [3] "As to the counts requiring the state to prove that
defendant acted either knowingly or intentionally, the trial court's error was not harmless." But
the court affirmed the one conviction that based on a "recklessly" culpable mental state.

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