NHTSA STATISTICS
What is the relevance of the %’s, etc? None. Not in the criminal realm of proof beyond a reasonable doubt and only seeks to confuse the jury; more prejudicial than probative
Should the court allow the introduction of HGN evidence, then the court should limit the testimony concerning what, if anything, this test shows. People v. Joehnk, supra. The presence of HGN/FST cues or clues show that a person may have consumed alcohol but cannot be used to establish an alcohol level or level of impairment.
Mr. X requests that the prosecutor be ordered to specifically instruct any prosecution witness that will testify about HGN and/or Field Sobriety Test’s that they are precluded from asserting or inferring that HGN/FIELD SOBRIETY TESTS are indicative of any alcohol level or level of impairment.
For FSTs, impairment, absorption and elimination, and other items of evidence employed to convict people of drunk driving, statistics/averages/ranges for the hypothetical generality of the populace, as distinguished from matters provable as to the individual defendant, litter the record in these cases and “support” convictions.
In a recent case, in as serious a subject as child molestation, it was held that it was error to admit statistical-likelihood evidence to convict the defendant. “Thus, it appears that the clear weight of authority in our sister states, the federal courts, and the military courts finds such evidence inadmissible. We find the reasoning of these cases compelling. Dr. Urquiza’s testimony had the effect of telling the jury there was at least a 94 percent chance that any given child who claimed to have been sexually abused was telling the truth. And, although Dr. Urquiza’s testimony on this point was not expressly directed to either L.D. or J.D., the practical result was to suggest to the jury that there was an overwhelming likelihood their testimony was truthful. In so doing, this testimony invaded the province of the jury, whose responsibility it is to ‘draw the ultimate inferences from the evidence.’” People v. Wilson (2019) — Cal.App.5th —, — [2019 Cal. App. LEXIS 265, *22, 2019 WL 1373728] [emphasis added].
That holding harkens back to an earlier ruling that mathematical probabilities cannot support convictions, because they invade the province of the jury and are not particularized to the defendant at Bar. “We deal here with the novel question whether evidence of mathematical probability has been properly introduced and used by the prosecution in a criminal case. While we discern no inherent incompatibility between the disciplines of law and mathematics and intend no general disapproval or disparagement of the latter as an auxiliary in the fact-finding processes of the former, we cannot uphold the technique employed in the instant case. As we explain in detail, infra, the testimony as to mathematical probability infected the case with fatal error and distorted the jury’s traditional role of determining guilt or innocence according to long-settled rules. Mathematics, a veritable sorcerer in our computerized society, while assisting the trier of fact in the search for truth, must not cast a spell over him. We conclude that on the record before us defendant should not have had his guilt determined by the odds and that he is entitled to a new trial. We reverse the judgment.” People v. Collins (1968) 68 Cal.2d 319, 320 [emphasis added].
If particularity as to person, place, and thing are required for search warrants, on the far lower “probable cause” standard [California Judges Benchbook, Search and Seizure, sec 2.65 (2018), Penal Code section 1529, Amendment IV, the Constitution], then fuzzy, statistical guesswork about the general population cannot suffice for beyond reasonable doubt conviction standards.
(c) A police officer is not qualified to testify to the statistical data allegedly supporting any aspect of the field sobriety tests. It is anticipated the officer will offer some type of statistical-likelihood evidence heard from someone else (double hearsay) about field sobriety tests, e.g., 77% for HGN, 68% for WAT, and 65% for OLS).
For FSTs, and other items of evidence employed to convict people, statistics/averages/ranges for the hypothetical generality of the populace, as distinguished from matters provable as to the individual defendant, infect the record with a fatal error and “support” convictions.
In People v. Wilson (2019) 33 Cal.App.5th 559 it was held that it was error to admit statistical-likelihood evidence to convict the defendant:
“Thus, it appears that the clear weight of authority in our sister states, the federal courts, and the military courts finds such evidence inadmissible. We find the reasoning of these cases compelling. Dr. Urquiza’s testimony had the effect of telling the jury there was at least a 94 percent chance that any given child who claimed to have been sexually abused was telling the truth. And, although Dr. Urquiza’s testimony on this point was not expressly directed to either L.D. or J.D., the practical result was to suggest to the jury that there was an overwhelming likelihood their testimony was truthful. In so doing, this testimony invaded the province of the jury, whose responsibility it is to ‘draw the ultimate inferences from the evidence.’” People v. Wilson (2019) — Cal.App.5th —, — [2019 Cal. App. LEXIS 265, *22, 2019 WL 1373728] [emphasis added].
The holding in Wilson is supported by a previous ruling in which it was held mathematical probabilities cannot support convictions because they invade the province of the jury and are not particularized to the defendant on trial.
“We deal here with the novel question of whether evidence of mathematical probability has been properly introduced and used by the prosecution in a criminal case. While we discern no inherent incompatibility between the disciplines of law and mathematics and intend no general disapproval or disparagement of the latter as an auxiliary in the fact-finding processes of the former, we cannot uphold the technique employed in the instant case. As we explain in detail, infra, the testimony as to mathematical probability infected the case with a fatal error and distorted the jury’s traditional role of determining guilt or innocence according to long-settled rules. Mathematics, a veritable sorcerer in our computerized society, while assisting the trier of fact in the search for truth, must not cast a spell over him. We conclude that on the record before us defendant should not have had his guilt determined by the odds and that he is entitled to a new trial. We reverse the judgment.” People v. Collins (1968) 68 Cal.2d 319, 320 [emphasis added].
See also People v Julian (2019) 34 CA5th 878, 885 (statistical probability evidence that Child Abuse Accommodation Syndrome (CAAS) leads to false accusations only small percentage of time was highly prejudicial “predictive conclusion” and failure to object was ineffective assistance of counsel).
