I. ISSUE PRESENTED FOR REVIEW
The speculative testimony of the Medical Examiner, Dr. Horn, that the victim’s wounds were consistent with “defensive wounds” was relied upon the State as “forensic science” in arguing their case to the jury. Yet, the testimony of Dr. Horn failed to meet minimum evidentiary standards.
II. ISSUES PRESENTED TO, BUT NOT DECIDED BY THE COURT OF APPEALS
See the State’s Petition for Review.
III. FACTS MATERIAL TO THE ISSUES PRESENTED
Prior to trial, Mr. Fish filed a motion in limine to preclude the testimony of Dr. Kevin Horn, Medical Examiner, that bullet wounds to Mr. Kuenzli’s hands were consistent with “defensive wounds” because the opinion was speculative. Essentially, Dr. Horn could only testify factually that Mr. Kuenzli’s hands were in front of this torso at the time of the shooting, but could not give an expert opinion about why other than through speculation. According to Dr. Horn, Mr. Kuenzli’s hands could have been in front of the torso without being “offensive” or “defensive” by running or pointing or gesturing or balancing.
The testimony of Dr. Horn provided for several distinct “possibilities” to explain the fact that Mr. Kuenzli’s hand suffered bullet wounds prior to them entering his torso. First, Mr. Kuenzli’s hands may simply have been in front of his chest as a running position. Second, Mr. Kuenzli’s hands may have been in front of his chest because he was pointing or gesturing. Third, Mr. Kuenzli’s hands could have been in front of his chest as an “offensive” or threatening gesture. Finally, Mr. Kuenzli’s hands could have been in front of his chest because of a “defensive” gesture.
IV. ARGUMENT FOR GRANTING CROSS-PETITION
The Arizona Court of Appeals first stated that the trial court “found there were three possible alternative explanations for the location of the [wounds on the] victim’s right arm and hand.” [Unpublished Op. ¶42]. The Court of Appeals also recognized that the medical examiner identified at least three possible reasons for the position of the victim’s hand and arm.
[Id.]. Although it is a bedrock rule of evidence in both criminal and civil trials that expert opinions are not admissible unless they are based upon an assertion that is more probable then not, the Court of Appeals found that any expert opinion may be admitted as long as it supports a mere possibility.
||All that is required is that if admitted, it would render the desired inference more probable…. [Cite omitted]. Because the evidence need only be sufficiently certain either for the fact-finder to conclude that the evidence is sufficient to such a degree or to choose from competing inferences.
Unpublished Op. ¶41
Although the Court of Appeals found that Dr. Horn ultimately focused upon “offensive” and “defensive” wounds as equally likely after he dismissed the possibility of the hands in front of the torso as a natural running gesture [Unpublished Op. ¶43], we submit that expert testimony speculating about gunshot wounds as “defensive wounds” when they are no more likely than “offensive wounds” not only falls short of evidentiary standards, but is more prejudicial than probative. Rule 403,
The State relied upon the testimony of Dr. Horn as essential evidence to support its conviction. It is obvious that the State would not have prevailed without the testimony of Dr. Horn. In closing argument, the State stressed that “defensive wounds” were suffered by Kuenzli. [R.T. 6/12/06, 73, 79; R.T. 6/12/06, 12:10 p.m., 110-11]. The State argued that the “circumstantial evidence” of defensive wounds, as interpreted by Dr. Horn, is “just as good as direct evidence”.
[Id. 74]. The wounds suffered by Kuenzli were “consistent with defensive postures of other victims” in other homicide cases. [R.T. 6/12/06, 73-74, 75]. The State forcefully argued, based on the opinion of Dr. Horn, that Kuenzli “was attempting to defend himself against not one, but two shots”.
[Id. 75]. The State described the defensive wounds as a matter of “forensic science”. [Id. 73].
Both the trial court and the Court of Appeals relied upon State v. Paxson, 203 Ariz. 38 (App. 2002).
Paxson merely allowed an engineer to testify about two distinct scenarios because one of them necessarily occurred. The expert opined that both possibilities were approximately equal. However,
Paxson did not open the door to allowing experts to testify in support of “any possibility” rather than a genuine probability.
The trial court’s allowance of the speculative testimony of Dr. Horn, however, must be considered a far-fetched application or extension of
State v. Paxson, 203 Ariz. 38 (App. 2002).1 An expert opinion must be within a reasonable degree of medical probability which is an important evidentiary standard throughout the United States that must be enforced in order to prevent unreliable medical testimony from swaying juries, which is exactly what happened in Fish’s case. The State used Dr. Horn’s testimony to support the argument that Kuenzli was simply running to get his dogs and was shot as he was trying to shield himself from the aggressive shots fired by Fish. The State argued that Kuenzli suffered defensive wounds as a matter of “forensic science”.
Despite the opinion of Dr. Horn, interpreting one “possible” inference raised by an injury to someone’s hand or arm by a bullet that eventually penetrated their chest, there was no other evidence to support the conclusion that Kuenzli suffered defensive wounds. Dr. Horn’s interpretation of the wounds as “consistent with defensive wounds” was nothing more than a speculative judgment about one possibility within an array of many possible inferences.
Medical testimony, when “inconclusive” may be of value when considered with other evidence.
State v. Ellevan, 179 Ariz. 382, 384 (App.1994), citing Butler v.
Wong, 117 Ariz. 395, 396 (App. 1977). In Ellevan, the testimony of Dr. Palmer was substantially fortified by the introduction of a scientific study and the testimony of the petitioner, which affirmatively showed that he likely contracted AIDS two years prior to sentencing. The same composite of evidence simply does not exist to support the critical opinion of Dr. Horn that Kuenzli suffered “defensive wounds”, predicated only upon the single fact that his hand and forearm were in front of his torso when he was shot. Nonetheless, the testimony of Dr. Horn effectively transformed Kuenzli from “first aggressor” to helpless victim without any credible evidentiary basis.
It was misleading, powerful, and unfair to allow Dr. Horn to testify that one of many “possible” explanations was “consistent with defensive wounds”. “[E]liciting an expert’s opinion that the victim’s conduct is consistent with the crime having occurred” carries “a significant risk that such testimony” will unfairly sway the jury.
State v. Moran, 151 Ariz. 378, 386 (1986); State v. Tucker, 165 Ariz. 340, 349 (1990)(child molestation cases). The testimony of Dr. Horn not only swayed the jury, it was used as the decisive “evidence” against Fish. Dr. Horn’s testimony fell below evidentiary standards and was misleading. It violated due process of law.
The proponent of expert testimony bears the burden of establishing that the opinion is established by at least a preponderance of the evidence. See Rule 104(a), Ariz. R. Evid.;
Bourjaily v. U.S., 483 U.S. 171 (1987); Graham, Handbook of Federal
Evidence, §702:1. To be reasonably probable, a conclusion must be more likely than not.
State v. Nunes, 800 A.2d 1160, 1175-76 (Conn. 2002). In other words, the opinion must be “probable” rather than merely “possible”.
State v. Weinberg, 575 A.2d 1003 (Conn.), cert. denied, 498 U.S. 967 (1990). Medical expert testimony regarding causation based upon possibility or speculation is insufficient. The opinion must be stated as being at least “probable”, more likely than not.
Doe v. Zedek, 587 N.W.2d 885, 893 (Nebr. 1999); Stinson v.
England, 633 N.E.2d 532, 537 (Ohio 1994)(an expert must state her opinion in terms of probability, meaning that she must express that there is greater than fifty-percent likelihood that a certain act or failure to act caused a given result). “A doctor’s testimony that a certain thing is possible is no evidence at all. His opinion as to what is possible is no more valid than the jury’s own speculations as to what is or is not possible.”
Primm v. Wickes Lumber Company, 845 S.W.2d 768, 771 (Tenn. App. 1992);
State Compensation Fund v. Keefe, 22 Ariz. App. 311, 314, 526 P.2d 1266, 1269 (Div. One 1974)(reas. degree of medic. prob.);
State v. Bolton, 182 Ariz. 290, 304, 896 P.2d 830, 844 (1995)(Four requirements of expert testimony include reliability and more probative than prejudicial).
If this Court grants review on the State’s petition, then the additional issue of Dr. Horn’s speculative testimony should be revised as well.
Date John Trebon
Co-counsel for Harold Fish
Date Lee Phillips
Co-counsel for Harold Fish
CERTIFICATE OF COMPLIANCE
Pursuant to Rule 31.19 Arizona Rules of Criminal Procedure, undersigned counsel certifies that this Brief is double spaced, uses 14-point Times New Roman proportionately spaced typeface and contains
Dated this 17 day of August, 2009
CERTIFICATE OF FILING
The original and six copies of this Brief were filed by mail. The Briefs were addressed to the Clerk of Court of Appeals for the State of Arizona and mailed by Fed-Ex for delivery for overnight delivery on 8-18, 2009.
Dated this 17 day of August, 2009.
CERTIFICATE OF SERVICE
I hereby certify that on this 17 day of August, 2009, I mailed copies of the attached to the following people:
Joseph T. Maziarz
Assistant Attorney General
Criminal Appeals Section
1275 W. Washington St.
Phoenix, Arizona 85007