State v. Tapp – reliability (unreliability) of expert testimony

In State v. Tapp, decided on June 6, 2012, the S.C. Supreme Court reiterated it’s holding in State v. White, 372 S.C. 364, 642 S.E.2d 607 (Ct. App. 2007), that after qualifying a witness as an expert witness, the Court must determine whether the testimony is sufficiently reliable to be admitted.  In Tapp, the Court held that it was error for the trial court to not determine the reliability of Special Agent Prodan’s testimony, but the majority went on to hold that it was harmless error in light of the other evidence at trial.

Prodan, who testified in this case as an expert in the “fields of crime scene analysis and victimology,” may be the state’s last resort in some cases when the evidence is weak they fear they cannot otherwise obtain a conviction.  His “expert” testimony consists of telling the jury what he thinks happened, based on the evidence that was found.  Essentially, a graphic, prejudicial, inflammatory opinion based on no science whatsoever.  For example, in this case:

In relevant part, Prodan testified that because there was no sign of struggle at the doorway, there was no sign of forced entry, and the victim habitually locked her door, the assailant may have entered the apartment either because the victim recognized him or because the assailant created a ruse that caused the victim to invite him in.  Prodan recognized the possibility that the victim unintentionally left the door unlocked, allowing the assailant to walk in.  Additionally, because of the victim’s relatively low risk for encountering a violent crime, he believed she was likely targeted for sexual assault.  Prodan stated his belief that this was a sexually motivated crime because the victim was found nude with multiple stab wounds and blunt force trauma, and semen was found inside the victim.  He opined that because it appears the victim was stabbed with a knife that belonged to her and was sitting on her kitchen counter, the assailant most likely did not come to the apartment for the purpose of killing the victim, although he may have had the intention to sexually assault her.  Finally, Prodan noted that the lack of blood in the hallway leading to the bathroom where the victim was found indicated the victim was carried from the struggle scene in the living room to the bathroom, and then intentionally “posed” in a sexually suggestive manner.  He opined that the assailant may have posed her this way to demonstrate a feeling of contempt or to degrade the victim.

He takes the evidence in the case and tells a compelling story based on it.  Like an attorney’s opening statement or closing argument.  Like the kind of story the jury can tell for themselves.  But there is no additional evidence, the testimony adds nothing to the case other than his opinion, and his opinion is based on nothing scientific – his opinion is based on his opinion.

The opinion stops short of saying that Prodan’s testimony is not reliable and should not be admitted – this is left for another trial, another day.  Which leaves the question – do defendants continue to move to have his testimony excluded, and make as complete a record as possible for appeal in the event the judge allows the testimony; or do we start bringing our own quacks to testify at every trial, to give the jury their expert opinions about what happened?

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