Nothing is worse for a criminal defense attorney than a state expert testifying at trial on an ultimate that the jury is supposed to be deciding. In State v. Turner, Division I of the Court of Appeals rejected Mr. Turners claims that the prosecutor conducted misconduct and that the expert violated pretrial motions by having their Pediatric Doctor specialist in child abuse testify to “child abuse,” the ultimate issue in that case. In short, the Court decided that since it was charged as “torture” the error if found would be harmless.
What the Court of Appeals reminds us of though, is that profiling evidence is discouraged by the courts. We are reminded to make a thorough reading of Thorell,which provides a lengthy discussion of Evidence Rule 702 and how profiling defendants with scientific categories can reduce or interfere with the jurors job of determining the facts in any given case. Such a conclusion by an expert goes beyond the basic facts and concludes that someone is a type of a person, the type charged in the crime.
The Rule of Turner – Experts can go dangerously close and nearly touch ultimate issues that jurors are supposed to decide.
State v. Idris Turner, Court of Appeals of Washington, Division I, UNPUBLISHED, No. 65353-9-I, October 31, 2011.