Monday, December 1, 2008

HGN and hearsay

The Amarillo Court of Appeals has reversed a DWI conviction because the trial court allowed the prosecutor to introduce a letter from the American Optometric Association regarding the validity and reliability of the horizontal gaze nystagmus test. 

In Wells v. State, No. 07-07-0471-CR (Tex.App.--Amarillo, 2008), the Court held that it was reversible error for the trial court to have allowed the arresting officer to identify the letter and then to allow the prosecutor to read it into evidence.  The Court pointed out that there was nothing in the record to indicate the officer was an optometrist, a member of the AOA or had any knowledge of any test or studies that backed up the AOA's position.

Interestingly enough, the prosecutor introduced the exhibit at the end of the state's case in chief (at the end of the first day of trial) and reintroduced it during closing argument.  Defense counsel (correctly) objected on the grounds that the document was hearsay and that the defendant was being denied his right to confrontation under Crawford.

Now when the prosecutor asks the arresting officer about the so-called validation studies and the supposed accuracy of the NHTSA battery of police coordination exercises, stand up and object with the Wells opinion in your hand.

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