Image from National Institute of Standards & Technology.

If you are going to drive after drinking alcohol, why agree to perform the junk science "tests" requested by a cop suspecting you of drunk driving?

Ironically, today Maryland’s highest court mandated expert testimony to present evidence on the junk science horizontal gaze nystagmus. Does not junk science preclude the possibility of expert testimony? Maryland v. Blackwell, ___ Md. ___ (May 14, 2009). Yes, if it were not for the slew of courts who do not view it as junk. 

Enter Maryland’s Court of Appeals, which ruled that HGN testimony is expert testimony, and requires that the witness first be qualified as an expert. Blackwell. Consequently, under the Maryland evidentiary rules, if the prosecutor fails to provide a timely and sufficiently detailed HGN expert witness designation, the testimony should be precluded. Similarly, Blackwell presents a concrete hurdle to qualifying the witness as an HGN expert in the first place.

As Blackwell confirms:

"Furthermore, before HGN testimony can be admitted into evidence the witness must

be offered to the court, and accepted by it, as an expert in the field of administering the HGN

test. See Trimble v. State, 300 Md. 387, 404, 478 A.2d 1143, 1151 (1984) (recognizing that

“questions of the qualifications of expert witnesses are for the court to decide as a preliminary matter of law”); MAIN, MARYLAND EVIDENCE, § 702:4 (“Before a witness properly may be asked a question that calls for expert testimony, the witness’ qualifications must be proved and the witness proffered to the court and accepted by it . . . as an expert in the relevant field.” (footnote omitted)). This requirement was undoubtedly satisfied in Wilson, supra, where prior to the officer testifying about his administration of the HGN test to the defendant, the prosecutor stated, “I would like to ask the court to qualify the witness as an expert in the administration of the HGN test and the interpretation based on his training in this matter.” 124 Md. App. at 548, 723 A.2d at 496. The trial judge replied, “The court will find that the witness is an expert in the administering and also evaluating the results of the horizontal-gaze nystagmys [sic] test . . . .” Wilson, 124 Md. App. at 549, 723 A.2d at 496 (alteration in original).

One day, courts hopefully will look with a jaundiced eye at horizontal gaze nystagmus. Jon Katz