Posted by:  Edmund R. Folsom, Esq.

January 20, 2017

DISCLAIMER:  The following is not legal advice.  It is not intended as legal advice and should not be taken as legal advice.  I offer it to potentially aid understanding only.

State v. Rourke, 2017 ME 10 (decided January 17, 2017), demonstrates the importance of thoroughness in presenting offers of proof.  Rourke was charged with OUI based in part on the results of a .11 breath-alcohol test conducted on an Intoxylizer 8000.   On the night of his arrest, at the police station, Rourke told the arresting officer that he was a mechanic and that he had been at work before the officer pulled him over.  Before trial, Rourke consulted with expert witness Patrick Demers.  Demers has training and experience in pharmacy and forensic chemistry.  He produced a report stating his opinion that Rourke had been working with automotive chemicals for several hours prior to his arrest, that those chemicals contain hydrocarbons, ketones and toluene, and that, when inhaled, those substances can cause a falsely elevated Intoxylizer test result.  At trial, Rourke sought to introduce Demers’ opinion testimony.  The State objected on grounds that Demers had no grounds to testify that Rourke had hydrocarbons or similar chemicals in his system when he was tested.   Demers was questioned outside the jury’s presence about his anticipated testimony.  Demers testified that he had conducted laboratory experiments on earlier versions of the Intoxylizer machine more than 25 years prior to Rourke’s trial.  In those experiments, test subjects inhaled paint thinner and then produced positive Intoxylizer test results.  Demers was asked whether he was aware of literature supporting his hypothesis that industrial exposure to hydrocarbons can produce a positive breath-alcohol test result.  As the Law Court characterized Demers’ testimony in this regard, “he was unable to identify the nature of the literature or whether it had been subject to peer review.”  Ultimately, the opinion Demers intended to present to the jury was that if hydrocarbons or similar chemicals were present in Rourke’s system Demers would expect to see them contribute to the alcohol test result.   At some point during the Defendant’s offer of proof, Rourke’s attorney informed the Court that he had photographs showing “the scene of the shop” where Rourke worked. There was, though, no voir dire testimony and nothing else in the defendant’s offer of proof that described Rourke’s workspace or the types of chemicals he used there, if any.   All that the Court was presented with in that regard was the arresting officer’s testimony that Rourke told him he was a mechanic and that he had been at work before his traffic stop.  Based on Rourke’s offer of proof, the trial Justice excluded Demers’ opinion testimony from the jury, under M.R. Evid. 403, holding that its probative value was far outweighed by its lack of reliability and its potential to confuse the jury.   The trial proceeded and Rourke was convicted of OUI.  He appealed the ruling excluding Demers’ testimony.

The Law Court reviewed the trial court’s ruling for abuse of discretion.   The Court pointed out that the trial court’s analysis implicated M.R. Evid. 702, in addition to M.R. Evid. 403.  Rule 702 provides, “A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if such testimony will help the trier of fact to understand the evidence or to determine a fact in issue.”  The Law Court instructed that  before a trial court can enter into a Rule 702 analysis it must make a preliminary finding that the testimony at issue is reliable.   Indicia of reliability include “’whether any studies tendered in support of the testimony are based on facts similar to those at issue;…whether the hypothesis of the testimony has been subject to peer review;…[and] whether an expert’s conclusion has been tailored to the facts of the case.’”  Because expert testimony that is not reliable cannot have any probative value, it cannot survive the balancing test of Rule 403, which requires that the probative value of the evidence must outweigh the danger of unfair prejudice, confusion of issues, etc.

The Law Court tested Demers’ proffered testimony against the three “indicia of reliability” set forth above.   As to the first of these indicia—whether studies tendered in support of the testimony are based on facts similar to those at issue– the Law Court dealt with Demers’ voir dire testimony about the experiments he personally conducted more than 25 years ago.  First, the trial court found that these experiments were conducted on breath testing machines other than the Intoxilizer 8000.  The trial court concluded that there was no reasonable basis to assume that the Intoxlizer 8000 reacted to hydrocarbons in the same way (In other words, the trial court was not presented with anything in the offer of proof that drew this necessary parallel between the workings of the Intoxlizer 8000 and the workings of the machines Demers used in his experiments).  The Law Court did not fault the trial court’s conclusion in this regard.  Next, the Law Court pointed out that Demers’ experiments involved people who intentionally inhaled paint thinner in a laboratory, versus people with ambient exposure to chemicals in a workplace environment.   Given this combination of shortcomings, the Law Court found that the studies Demers tendered in support of his testimony were not based on facts similar to those at issue in Rourke’s case.

As to the second of its “indicia of reliability”—whether the hypothesis of the testimony has been subject to peer review—the Law Court characterized Demers as having been “unable to identify the nature of the literature or whether it had been subject to peer review.”   The Court found that this shortcoming provided further support for the trial court’s discretionary decision to exclude the evidence.

As to the third of the Law Court’s “indicia of reliability”—whether an expert’s conclusion has been tailored to the facts of the case—the Court found that Demers’ proffered testimony failed because there was nothing in the offer of proof about the degree to which Rourke was in fact exposed to hydrocarbon-based chemicals, if he was exposed at all.  Demers’ proffered opinion was a hypothetical—if Rourke was exposed, Demers would expect that exposure to have an effect on the test.  Such testimony could only be relevant if supported by evidence that Rourke was in fact exposed to hydrocarbons, and further demonstrating what chemicals he was exposed to and his degree of exposure.

Rourke teaches an important lesson about offers of proof for expert witness testimony.  It also teaches an important lesson about offers of proof more generally.  In footnote 7, the Law Court gave an example of Rourke’s failure to offer any proof pertaining to his workspace environment, the types of chemicals he might have been exposed to and the extent of any such exposure.  The Court pointed out that, during the voir dire outside the jury’s presence, Rourke’s attorney told the court he had photos “depicting ‘the scene of the shop’” where Rourke worked.   As to this, the Law Court stated:

Because the proffer did not demonstrate a foundational basis necessary for the admission of the photographs…his assertion does not constitute a proper offer of proof.  See State v. Williams, 462 A.2d 491, 492 (Me. 1983)(“An offer of proof must not only detail the proposed [evidence] but must also support the admissibility of that [evidence].”).

In other words, the offer of proof regarding the photographs should have provided grounds for the court to determine that a witness was available to testify to the accuracy of what the photos depicted and that what was depicted in the photos was sufficiently probative to warrant admitting them.  The latter would likely have been best demonstrated by offering the photos to the court as part of the offer of proof.   Details, details…  The proponent of the evidence bears the burden of establishing its admissibility.  On appeal, the record assumes nothing in favor of the proponent of evidence that is excluded by the trial court.  Instead, the record assumes the correctness of the trial judge’s decision.  At that point, the burden is on the proponent of the excluded expert witness testimony to demonstrate an abuse of judicial discretion.  Meeting that burden requires a detailed record, clearly demonstrating the abuse.  In the heat of battle, it’s easy to lapse from the degree of meticulousness required to create an adequate record, but without one the judge will ALWAYS have been right.

State v. Rourke, 2017 ME 10.   http://courts.maine.gov/opinions_orders/supreme/lawcourt/2017/17me10ro.pdf