Opinion-Based Police Testimony in Criminal Cases

Charlotte Criminal Lawyer Brad Smith answers the question: “Should I talk to the police?”


Police are an integral part of society; they keep the peace, catch criminals, and put their lives at risk to keep the general population safe. Since the police play such a large role in solving crimes and convicting criminals, it is not surprising that police officers are often called to testify during court proceedings. An issue arises with police testimony, however, when the officer testifying was not involved with the incident at all. Instead, that officer is offering an opinion, based off of his or her police experience, as to what happened or would have happened. This practice is controversial because someone without actual knowledge, or only investigative knowledge, of the incident is offering testimony that could sway a jury.


car-crash-DWI-Charlotte-Monroe-Lake-Norman-Criminal-Defense-Lawyer-300x199Recently, the North Carolina Appeals Court confronted this issue in State v. Denton. Defendant Denton was involved in a one-car crash in which the passenger in the vehicle died. Both the defendant and the other individual were ejected from the vehicle. The investigation showed that there were beer caps, a strong smell of beer, and beer bottles present at the scene, and the defendant had a blood alcohol concentration above the legal limit. It was determined by circumstantial evidence that the defendant was the one driving the vehicle, even though he suffered a severe head injury and could not remember the accident.


At trial, two law enforcement officers offered testimony regarding the crash. The first officer looked at various elements of the scene of the accident – the seat position, forensic evidence, etc. – to determine that the defendant was the one driving the vehicle. He did acknowledge that he was not an expert on the subject. The second officer testified as an expert and stated that he could not say for sure that the defendant was the driver of the vehicle. The trial court found the defendant guilty, agreeing that he drove the car. The defendant appealed.


On appeal, the issue was whether or not the opinion testimony by a non-expert witness was permissible. Under North Carolina law, lay witness testimony is permitted when the opinion is rationally related to the witness’ perception and helpful in understanding the case or clearing up a fact at issue. What the witness cannot do is make statements of fact to a jury that give the jury the ability to draw their own conclusions. The first police officer was not in a position to relay the facts about who was driving the vehicle to the jury. The appeals court ordered Denton a new trial because the opinion testimony by the first officer was not a harmless error in the case, but instead a reason for conviction.


The criminal defense attorneys at Arnold & Smith, PLLC are here to help you following a criminal charge. We are here for you every step of the way – including in an appeals process if there was an error during your trial. Our attorneys are dedicated to providing you the best defense possible. Contact us today for a consultation. If you find yourself facing criminal charges and need the help of an experienced criminal defense attorney in or around Charlotte, Lake Norman, or our new office in Monroe, please contact Arnold & Smith, PLLC today at (704) 370-2828 or find additional resources here.








The criminal defense attorneys at Arnold & Smith, PLLC make it their mission to zealously defend their clients on a wide range of criminal matters at both the state and federal levels. These matters may include any charge from traffic offenses; DWI/DUI; drug charges (from simple possession to possession with intent to distribute and trafficking); gun permit denials; weapons offenses; and property crimes (larceny, breaking and entering, robbery, fraud, embezzlement, white collar offenses); to sexually related offenses (indecent exposure; sexual assault, crimes against nature, removal from sex offender registry); and violent crimes (domestic violence; assault; manslaughter; homicide, murder). Other legal issues that Arnold & Smith, PLLC criminal clients may be facing include restraining orders, restraining order and probation violations, expungements; appeals; and immigration issues related to criminal charges. Our criminal defense attorneys are passionate about ensuring that individuals empower themselves by being informed about their constitutional rights, and stand at the ready to fight in the defense of those facing criminal charges.







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