SJC in Canty Addresses Police Officer Testimony at OUI Trials

I. Introduction

 
Police officer testimony during OUI (operating a motor vehicle while under the influence of alcohol) trials in Massachusetts often reads like a script from an all too familiar play, with indicators of alcohol intoxication largely the same across police reports and police officer testimony. Police reports are almost certain to include phrases such as, “odor of alcohol on the [driver’s] breath” and “eyes were bloodshot.”[ref]Commonwealth v. Canty, 998 N.E.2d 322, 325 (Mass. 2013) (providing descriptive phrases noted by officer indicating defendant’s alleged intoxication).[/ref] Indeed, these are common—albeit accurate—indicators of alcohol consumption and intoxication. There are also many other indicators, which are generally important factors in a police officer’s determination of whether he or she has probable cause to arrest a suspected OUI offender.[ref]See Kimberly A. Fogarty & Andrea Nardone, The Massachusetts Prosecutors’ Manual: Operating Under the Influence 18-25 (6th ed. 2013) (outlining common indicators of impairment police officers use to determine intoxication during OUI stops). Police officers are trained to look for twenty cues associated with impaired driving with respect to a driver’s manner of operation, including recognizing many visible signs of impairment, administering standardized field sobriety tests and nonstandardized tests, and forming opinions as to the driver’s level of impairment after taking into account all of their observations regarding the signs of impairment from their training. See id.[/ref] When any of these common indicators of intoxication are observed by a police officer, it is a safe bet that it will be listed in the police report. Likewise, when an officer writes something in his or her police report, they almost certainly will testify to it at trial as if it were a fact and not merely one of their observations. This is a common practice, as police officers arrest countless citizens during the course of their duties and there is no prohibition against testifying to alleged facts recorded in a police report.
It is also recognized in Massachusetts that police officers may offer their opinion, as lay witnesses, regarding a defendant’s level of intoxication and may even offer their opinion that a defendant was indeed “drunk.”[ref]See Commonwealth v. Jones, 979 N.E.2d 1088, 1090 n.1 (Mass. 2012) (determining police officer able to testify on defendant’s apparent level of intoxication); see also Commonwealth v. Sudderth, 640 N.E.2d 481, 483-84 (Mass. App. Ct. 1994) (“The opinion testimony of police who observed the defendant may also be taken into account.”).[/ref] However, the Massachusetts Supreme Judicial Court (SJC) recently decided in Commonwealth v. Canty that a police officer testifying in an OUI trial “may not opine as to the ultimate question whether the defendant was operating while under the influence, but they may testify to his apparent intoxication.”[ref]Canty, 998 N.E.2d at 328 (quoting Jones, 979 N.E.2d at 1090 n.1).[/ref] This Case Note will examine the SJC’s decision in Canty, briefly outlining the legal theories relied upon by the court in making its decision, and focusing on the court’s analysis. Moreover, this Case Note will also discuss the implications of the SJC’s decision on OUI trials going forward, emphasizing the suggested proper lines of questioning posed to police officers by prosecutors, the proper instructions to police officers by prosecutors before trial, and various strategies and approaches defense attorneys should take in light of the Canty decision.
 

II. Police Officer Testimony In OUI Trials

 
A police officer rarely qualifies, except in limited circumstances that specifically pertain to knowledge gained through specialized police work, as “a witness qualified as an expert by knowledge, skill, experience, training, or education.”[ref]Commonwealth v. Lanigan, 641 N.E.2d 1342, 1348 (Mass. 1994) (quoting Fed. R. Evid. 702).[/ref] Therefore, police officers are usually deemed lay witnesses, which limits their opinion testimony to observations that are: “(a) rationally based on the witness’s perception; (b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.”[ref]Fed. R. Evid. 701; see Canty, 998 N.E.2d at 328 (discussing police officers’ role as lay witnesses rather than expert witnesses at OUI trials).[/ref]
 
As lay witnesses at OUI trials, police officers are permitted to offer their lay opinion regarding a person’s level of intoxication, but while their training and experience teaches them to look for specific signs of drunkenness, intoxication, or inebriety, their opinion that a person is intoxicated remains that of a lay person, just as any other person may offer such testimony.[ref]See Commonwealth v. Canty, 998 N.E.2d 322, 327 (Mass. 2013) (recognizing lay witness opinion testimony of person’s drunkenness as permissible in Massachusetts).[/ref] Police officers receive training on what to look for in order to determine a person’s level of intoxication and gain experience in making such determinations and testifying on what factors lead them to make those determinations while performing their duties. Nevertheless, their training, knowledge, and experience does not reach the level of an expert with regard to the level of intoxication or the effects of alcohol on a person.[ref]See id. at 329 (contrasting expert and lay witness testimony).[/ref]
 
On the other hand, an expert qualified “by knowledge, skill, experience, training, or education” regarding the effects of alcohol on human beings may testify on that subject, if such “scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence.”[ref]See Mass. R. Evid. 702.[/ref] In order for a qualified expert to do so, however, the expert’s testimony must be “based upon sufficient facts or data, . . . [be] the product of reliable principles and methods, and . . . the witness [must apply] the principles and methods reliably to the facts of the case.”[ref]Id. (emphasis added).[/ref] This permits experts to offer a greater degree of opinion testimony than that of lay witnesses, as expert witnesses are permitted to rely upon and explain in greater detail what facts, data, principles, and methods helped them arrive at their ultimate conclusion. Regardless, expert witnesses still may not offer their opinion as to the ultimate issue in any case, such as a specific element of an offense at trial, because the purpose of expert testimony is only to assist the factfinder in determining a fact at issue.[ref]See Reed v. Edison Elec. Illuminating Co. of Bos., 114 N.E. 289, 291 (Mass. 1916) (holding expert’s opinion regarding whether operating vehicle was “‘safe and proper’” improper in negligence case); Note, Expert Legal Testimony, 97 Harv. L. Rev. 797, 797 (1984) (recognizing purpose of expert testimony to assist factfinder).[/ref]
 
As long as witnesses do not directly testify that they believe a defendant is guilty or innocent in a criminal case, there is no explicit rule in Massachusetts that prevents them from offering an opinion on the ultimate issue in a case. What courts must do in such circumstances is weigh the probative value of such opinion testimony against the threat of unfair prejudice to the defendant, in order to determine whether the testimony was improper.[ref] See Commonwealth v. Hamilton, 945 N.E.2d 877, 889-90 (2011) (determining testimony of witnesses on ultimate issue of defendant’s intent did not materially influence verdict).[/ref] In OUI trials specifically, allowing police officers to testify as to their opinion on what effect a defendant’s consumption of alcohol had on a particular defendant’s ability to operate a motor vehicle safely, presents a significant danger of prejudicing a jury against the defendant because juries may view the opinion as that of an expert, although a police-officer witness, in such circumstances, is not qualified to give such an opinion.[ref]See Commonwealth v. Canty, 998 N.E.2d 322, 329 (Mass. 2013) (acknowledging danger of allowing police officer testimony regarding effect of alcohol on defendant’s driving ability); Commonwealth v. LaCorte, 369 N.E.2d 1006, 1010 (Mass. 1977) (noting possibility of jurors “bow[ing] too readily” to opinion of expert or influential witness); 1 Kenneth Broun et al., Mccormick on Evidence § 11, at 78 (7th ed. 2013).[/ref] Allowing this testimony at OUI trials comes dangerously close to the ultimate issue of guilt, and because juries tend to view police officers as experts on determining a defendant’s ability to drive after consuming alcohol, the admission of this evidence diminishes the jury’s role in the fact-finding process.[ref] See Canty, 998 N.E.2d at 329 (stating lay opinion on ability to drive “comes close to an opinion as to whether the defendant is guilty”).[/ref] Therefore, police officers at OUI trials may—as lay witnesses—offer their opinion regarding whether the defendant was intoxicated; however, in order to do so, they must offer testimony about the observations they made of the defendant that helped them reach their conclusion.[ref] See id. at 328 (describing observations allowing lay witness opinion of intoxication).[/ref]
 

III. Commonwealth v. Canty

 
There is no explicit rule in Massachusetts that prevents witnesses from offering opinion testimony regarding the ultimate issue of guilt or innocence in a criminal case. Prior to the SJC’s decision in Canty, as long as testimony did not directly concern the defendant’s guilt, nothing prevented police officer’s from improperly offering opinion testimony regarding the ultimate issue of impairment during OUI trials. Accordingly, the police officer in Canty was allowed to testify that “[he] believed that [the defendant’s] ability to drive was diminished,” and that he believed this was due to “alcohol consumption.”[ref]Id. at 327.[/ref] Another officer testified that “[b]ased on what I observed, yeah, in my opinion [the defendant] was probably impaired.”[ref]Id. (providing transcript of police officer’s testimony at defendant’s OUI trial).[/ref] After the jury returned a guilty verdict on the OUI charge and the judge denied the defendant’s motion to vacate his conviction on an indictment that was not before the jury, the SJC granted the defendant’s application for direct appellate review.[ref]See Canty, 998 N.E.2d at 326 (discussing SJC’s grant of defendant’s application for direct appellate review).[/ref]
 
The significant issue on appeal in Canty was whether a police officer may “offer testimony that, in his opinion, the defendant’s ability to drive was diminished by the consumption of alcohol, or that the defendant was probably impaired by alcohol?”[ref]Commonwealth v. Canty, 998 N.E.2d 322, 324-25 (Mass. 2013) (internal quotation marks omitted).[/ref] The court noted that they were required to balance the tension between two well-established evidentiary principles that are specific to OUI trials: the admissibility of lay witness opinion testimony regarding whether a person was intoxicated from the consumption of alcohol and the long-recognized Massachusetts common-law principle that “[n]o witness, including a police witness, may testify as to a defendant’s guilt or innocence.”[ref]Id. at 327 (Mass. 2013) (quoting Commonwealth v. Hamilton, 945 N.E.2d 877, 889-90 (Mass. 2011)). The SJC saw a need to “harmonize the tension between two well-established evidentiary rules in cases charging the crime of operating a motor vehicle while under the influence of alcohol.” Id.[/ref] Indeed, the defendant’s contention that police officer’s testified to his guilt is sensible because having been charged with an OUI, a police officer testified that “[Canty’s] ability to drive was diminished by the consumption of alcohol and that he was ‘probably impaired.”[ref]Canty, 998 N.E.2d at 328 (internal quotation marks omitted) (outlining defendant’s point of contention regarding police officer opinion testimony regarding impairment from alcohol in OUI trials).[/ref] Although the SJC had previously stated in Commonwealth v. Jones[ref]979 N.E.2d 1088 (Mass. 2012).[/ref] that opinion testimony as to the ultimate question of whether an OUI defendant was operating under the influence of alcohol is inadmissible, testimony regarding the defendant’s intoxication remains admissible. The court declined to provide further explanation, which left the door open for prosecutors to elicit—and for police officers to offer—opinion testimony on whether a defendant’s ability to drive was impaired from alcohol.[ref]See id. at 1090 n.1. “In a prosecution for operating a motor vehicle while under the influence of alcohol, lay witnesses, including police officers, may not opine as to the ultimate question whether the defendant was operating while under the influence, but they may testify to his apparent intoxication.” Id.[/ref] In Canty, The SJC was presented with the opportunity to explain its reasoning in Jones and to create a concrete rule for police officer opinion testimony regarding a defendant’s impaired ability to drive as a result of alcohol consumption.
 
The SJC began its discussion by noting that “an opinion regarding a defendant’s sobriety is a lay opinion, not an expert opinion.” The court continued, stating that “the reasons for admitting a lay opinion are wholly different from the reasons for admitting an expert opinion,” as “the principal objective symptoms” of intoxication are well known to the average person, which gives such opinion testimony probative value.[ref]Canty, 998 N.E.2d at 328 (noting admissibility of lay opinion testimony on intoxication); see also Holton v. Boston Elevated Ry. Co., 21 N.E.2d 251, 253 (Mass. 1939) (recognizing probative value of lay opinion testimony regarding intoxication); Kenneth Broun et al., supra note 13, at 77-78 (comparing and contrasting expert and lay opinion testimony).[/ref] The court explained that because there are many subtle observations that any percipient witness can use to form an opinion as to a person’s level of intoxication, lay opinion testimony on a person’s level of intoxication is highly probative, and thus admissible.[ref]See Commonwealth v. Canty, 998 N.E.2d 322, 329 (Mass. 2013) (explaining numerous and subtle observations shaping lay opinion testimony regarding intoxication make such testimony probative); see also Holton, 21 N.E.2d at 253 (recognizing difficulty of describing “each and every minute detail indicative of intoxication”); Mark S. Brodin & Michael Avery, Handbook of Massachusetts Evidence § 7.2.2, at 397 (8th ed. 2007) (explaining witness perception of certain observations often only ‘composite’ one “that registered in the mind only in the form of a conclusion”).
 

Even where a witness has described the defendant’s appearance, manner, and conduct (e.g., bloodshot eyes, slurred speech, and unsteady gait), a lay opinion by a percipient witness regarding the defendant’s intoxication is still of probative value because such an opinion, especially as to the level of intoxication, may be shaped by observations too numerous or subtle to mention.

 
Canty, 998 N.E.2d at 329.[/ref] The court then noted that such lay opinion testimony regarding a defendant’s ability to safely operate a motor vehicle comes close to an opinion on the defendant’s guilt or innocence, which poses a significant danger of unfair prejudice.[ref]See Canty, 998 N.E.2d at 329-30 (suggesting importance of balancing probative value versus danger of unfair prejudice).[/ref] This danger is especially significant when the percipient lay witness is a police officer because when an influential witness, such as a police officer, offers an opinion on the ultimate issue of guilt or innocence, it may cause a jury to take the witnesses opinion as truth rather than independently analyze the facts.[ref]See id. at 329 (recognizing danger of allowing opinion testimony of influential witnesses on ultimate issue).[/ref] The SJC in Canty recognized that if the opinion testimony is a direct opinion regarding the guilt or innocence of a criminal defendant, then it is inadmissible.[ref]See id. at 330 (“Provided that a witness does not directly offer an opinion regarding the defendant’s guilt or innocence in a criminal case, we have no rule in Massachusetts prohibiting an opinion that touches on an ultimate issue.” (citation omitted)).[/ref]
 
The SJC’s holding in Canty finally created an explicit prohibition on testimony as to “whether the defendant’s consumption of alcohol diminished his ability to operate a motor vehicle safely.”[ref]Id. (prohibiting opinion testimony regarding defendant’s diminished driving ability in OUI cases).[/ref] After applying this new rule to the police officer’s testimony at trial, the court concluded that the admission of the police officer’s testimony that the defendant’s “ability to drive was diminished” was improper. Nevertheless, the court held that the admission of the police officer’s testimony that the defendant was “probably impaired” was not prejudicial error.[ref]Canty, 998 N.E.2d at 330. (concluding testimony relating to defendant’s driving ability was improper, but permitting general testimony regarding impairment).[/ref] Justice Gants disagreed with the defendant’s assertion that the jury would reasonably understand the phrase “probably impaired” to refer to the defendant’s ability to drive because the “opinion was proffered in response to a question asking whether the officer had an opinion ‘as to [the defendant’s] sobriety.’”[ref]Commonwealth v. Canty, 998 N.E.2d 322, 330 (Mass. 2013) (alteration in original) (deciding “probably impaired” in response to question regarding sobriety was not prejudicial).[/ref] The court refused to limit the use of particular words or phrases in an opinion offered by a witness (lay or expert), recognizing that “[t]he rule that witnesses in describing conduct should tell what they saw and heard does not foreclose the use of words of summary description.”[ref]Id. (permitting summarization of observation testimony) (quoting Kane v. Fields Corner Grille, Inc., 171 N.E.2d 287, 292 (Mass. 1961)) (internal quotation marks omitted).[/ref] Reasoning that “‘[p]robably impaired’ . . . is no worse than many of the alternatives (e.g., ‘buzzed,’ ‘tipsy’) to describe a modest level of inebriation,” the court refused to exclude the police officer’s testimony that the defendant was probably impaired.[ref]Id. (reasoning “probably impaired” no worse than “buzzed” or “tipsy”).[/ref]
 
First, “the risk of prejudice arising from the admission of an opinion that closely touches on the ultimate issue of guilt is less with lay opinion than with expert opinion, even where the lay opinion is offered by a police officer.”[ref]Id. at 331 (“[I]t is less likely that a jury would ‘forego independent analysis of the facts and bow too readily to the opinion’ where it is not reached through the specialized knowledge of an expert.”).[/ref] Second, the trial judge mitigated the risk of the jury giving the police officer’s opinion testimony too much weight by specifically instructing the jury that “they ultimately must determine whether the defendant was under the influence of alcohol, and that they may consider any opinion they heard about the defendant’s sobriety.”[ref]Canty, 998 N.E.2d at 331 (accepting trial judge’s specific jury instruction as sufficient prevention of prejudicial error).[/ref] Third, there was overwhelming evidence of the defendant’s guilt, besides the police officer’s improper opinion testimony, which allowed the court to conclude that “the jury’s judgment was not substantially swayed by the error.”[ref]Id. at 330.[/ref]
 

IV. Analysis

 
While the SJC correctly concluded that the police officer’s opinion testimony that the defendant’s “ability to drive was diminished” was improper, it declined to adequately address the issue of whether the police officer opinion testimony that the defendant was “probably impaired” should be admitted at trial.[ref]Commonwealth v. Canty, 998 N.E.2d 322, 330 (Mass. 2013) (concluding testimony regarding defendant’s impairment admissible under circumstances).[/ref] This not only presents problems for defendants and their counsel, but also presents significant problems for prosecutors who hope to try their cases correctly and avoid mistrials and overturned convictions. The risk is that police officers may be able to offer opinion testimony that a defendant was impaired while responding to questions other than those regarding a defendants’ sobriety; such a risk is not covered in the court’s opinion, and may, therefore, still constitute improper opinion testimony as to a defendant’s ability to operate a motor vehicle. Defense attorneys will likely challenge the admission of such opinion testimony, potentially resulting in mistrials, appeals, and overturned convictions.
 
Another problem presented by the SJC’s holding in Canty is that such language mirrors the jury instructions given regarding the under-the-influence element of OUI offenses.[ref]See Commonwealth v. Connolly, 474 N.E.2d 1106, 1109 (Mass. 1985) (deciding jury instructions in OUI cases require reading in light of legislative intent); Mass. Court System, Instruction 5.310: Operating Under the Influence of Intoxicating Liquor (Jan. 2013), available at http://www.mass.gov/courts/docs/courts-and-judges/courts/district-court/jury-instructions-criminal/5310-oui-liquor.pdf (“The Commonwealth is not required to prove that the defendant actually drove in an unsafe or erratic manner, but it is required to prove that his (her) ability to drive safely was diminished by alcohol.”).[/ref] When opinion testimony that parallels jury instructions is admitted at trial, jurors may become confused regarding their role as the finder of fact. Rather than determine the credibility of trial testimony on their own, jurors who hear police officer opinion testimony that resembles the language the judge reads to them during jury instructions, may defer to the police officer’s opinion testimony because they hear this language from the officer, prosecutor, and judge.[ref]See Canty, 998 N.E.2d at 329 (recognizing danger of jurors foregoing independent analysis of evidence when influential witness’s opinion is admitted).[/ref] Because it is natural for jurors to trust judges more than any other participant in a trial, when the instructions given by a judge before deliberations closely resemble the terminology used by the prosecution and its witnesses, they are likely to give this testimony more weight, which may result in unfair prejudice.
 
While the SJC in Canty declined to recognize this danger, the circumstances in the case did not present the ideal opportunity to confront these problems.[ref]See id. at 330 (declining to hold phrase “probably impaired” as unduly prejudicial).[/ref] First, the police officer’s opinion testimony that the defendant was probably impaired was given in response to a question by the prosecutor regarding the defendant’s sobriety, rather than his ability to safely operate a motor vehicle. Second, the judge gave the jury a curative instruction regarding its role as the finder of fact. Lastly, the other evidence of the defendant’s guilt, besides the police officer’s testimony, was overwhelming.[ref]See id. (outlining reasons admission of improper opinion testimony was not unfairly prejudicial).[/ref] For these reasons, the risk of unfair prejudice was minimized.
 

V. Conclusion

 
In the wake of the SJC’s decision in Canty, prosecutors and defense attorneys should adjust their trial strategies in order to reach just results in OUI trials. Prosecutors must now better prepare their police officer witnesses before they testify to ensure that they do not offer opinion testimony regarding a defendant’s ability to safely operate a motor vehicle as a result of consuming alcohol. If they do not, they may risk mistrials and overturned convictions in cases where OUI defendants should otherwise be convicted. On the other hand, defense attorneys must be aware of prosecutors and police officers who attempt to slip such improper opinion testimony into evidence at trial and vehemently object and call for a mistrial when this occurs. While ideally the SJC would have recognized the significant risk of unfair prejudice when the language used in opinion testimony offered by police officers closely resembles the jury instructions, the court was correct in declining to do so in Canty. Nevertheless, defense attorneys in OUI trials should continue to present this argument in hopes of one day bringing this issue up on appeal in a case where the factual circumstances better allow the SJC to reach this decision.