S.C. court offers guidance on admitting police dog tracking evidence

By Fred Horlbeck
South Carolina Lawyers Weekly

RICHLAND COUNTY, S.C. — A dispute over police dog tracking evidence has led the state Supreme Court to provide the first-ever guidelines for trial courts to use in determining whether such evidence is reliable.

In an April 27 decision, the court described the guidelines as an “evidentiary framework to guide our bench and bar concerning dog tracking evidence. “

The court also clarified that trial courts have a duty to assess the reliability of evidence - including nonscientific expert testimony - as part of a threshold inquiry for admissibility under the rules of evidence.

“The main thing is they established standards for the admission of dog tracking in this state, which was not something that had really been done before,” said LaNelle DuRant, a state appellate defender who represented the defendant.

The case is important on another level as well.

“The court was saying in this case that the trial court has a gatekeeping role of determining that nonscientific evidence is reliable before admitting it,” DuRant said. “So they developed these standards for determining how to know dog tracking evidence is reliable. “

The dispute arose in State v. White (South Carolina Lawyers Weekly No. 010-073-09, 7 pages) after a Richland County court convicted the defendant of two counts of armed robbery and kidnapping in a 2004 robbery at a Columbia convenience store.

After the robbery, a police dog led a law enforcement officer to the defendant, who was asleep with a gun in his hand. The trial court admitted the dog tracking evidence, and the defendant was sentenced to life in prison without parole.

After the state Court of Appeals affirmed in 2007, the defendant petitioned for a writ of certiorari, which the high court granted.

He claimed the court had a gatekeeping duty to check the reliability of the dog’s tracking skills under Rule of Evidence 702 and that it failed in that duty by allowing the jury to hear the tracking evidence.

That failure, he said, left the jury to “speculate about the dog’s reliability. “

Prosecutors, however, argued that no showing of reliability was necessary for the court to admit the evidence, apparently relying on State v. Morgan, 326 S.C. 503 (Ct. App. 1997).

That contention that didn’t sit well with the justices, who overruled Morgan to the extent that it suggested that only scientific expert testimony must pass a threshold reliability determination by a trial court before its admission into evidence. They also said the trial court properly admitted the dog tracking evidence.

“On appeal the state has persisted in the argument that reliability need not be shown for the admission of nonscientific expert testimony,” the court said. “Because the Court of Appeals in this case has approvingly cited State v. Morgan in support of the state’s position, we believe clarification of the analytical framework for the admissibility of nonscientific expert testimony is warranted. “

The court held that “the trial courts of this state have a gatekeeping role with respect to all evidence sought to be admitted under Rule 702, whether the evidence is scientific or nonscientific. “

The justices focused on expert qualifications and reliability as the two facets of that role.

“In the discharge of its gatekeeping role, a trial court must assess the threshold foundational requirements of qualifications and reliability and further find that the proposed evidence will assist the trier of fact,” the court said.

The justices gave trial courts six guidelines for assessing the reliability of dog tracking evidence. Such evidence is admissible when:

* The evidence shows the dog handler satisfies the qualifications of an expert under Rule 702;

* The dog is of a breed characterized by an acute power of scent;

* The dog is trained to follow a trail by scent;

* By experience, the dog is found to be reliable;

* The dog was placed on the trail where the suspect was known to have been within a reasonable time; and

* The trail was not otherwise contaminated.

However, the court was careful to limit the guidelines’ application.

“We offer no formulaic approach that will apply in the generality of cases,” the court said.

Senior Assistant Attorney General Harold W. Coombs Jr. said the guidelines would be helpful to police and courts.

“I definitely think they were entirely correct in setting up the standards for what I would call the foundation for the testimony,” he said.

“You have to have some basis for the handler to present his testimony: How was it that this dog was placed on the track and was able to follow; what kind of experience he’s had; what kind of training he’s had; and how often he has worked with this particular dog in the past; and have they ever had a situation where the dog just couldn’t go any more. “

Justice John W. Kittredge wrote the opinion. Concurring were Chief Justice Jean Hoefer Toal; Justices John H. Waller and Costa M. Pleicones; and Acting Justice E.C. Burnett III.

Gatekeeping duties

Justice Kittredge said that Rule 702 requires a trial court to check proposed expert testimony for reliability before the jury hears it.

Case law echoes that requirement in regard to dog tracking evidence, he said, citing State v. Childs, 299 S.C. 471 (1989), and State v. Brown, 103 S.C. 437 (1916).

He noted that the defendant conceded that the dog’s handler was qualified and that the defendant’s argument focused on the reliability of the dog’s tracking skills.

But “ample evidence” showed the dog was reliable, Justice Kittredge said. It was a German shepherd “descended from a bloodline of known police and military working dogs” and was a certified tracker, he said. The dog and its handler had worked together for seven years, conducting about 750 “tracks. “

He quashed prosecutors’ argument that no showing of reliability was necessary to admit nonscientific expert testimony.

“Presumably, the state relies on the Court of Appeals’ decision in State v. Morgan, which held ‘if the expert’s opinion does not fall within the Jones [standard for scientific expert testimony], questions about the reliability of an expert’s methods go only to the weight, but not admissibility, of the testimony,’” he said. “This is an incorrect statement of law.

“We overrule Morgan to the extent it suggests that only scientific expert testimony must pass a threshold reliability determination by the trial court prior to its admission in evidence,” the justice said.

Under Rule 702, “the familiar evidentiary mantra that a challenge to evidence goes to ‘weight, not admissibility’ may be invoked only after the trial court has vetted the matters of qualifications and reliability and admitted the evidence,” he said.

Copyright 2009 South Carolina Lawyers Weekly