Carolina Law BlogUnder the rules of evidence in North Carolina, the Trier of Fact is responsible for listening to the testimony presented and deciding what
happened.
Determining the truth of a matter is essential to meting out justice.
One would be remiss in failing to acknowledge the import and impact of an independent trier of fact.
While there is only one absolute truth, even among those proceeding in good faith, legitimate disputes arise at trial about what did and did not happen – Bill Powers, DUI Lawyer Charlotte NC
It’s not just a matter of honesty or lack thereof.
We all make mistakes. We misperceive. We misunderstand. We have biases, explicit and implicit.
We’re human.
And because of that, because of our human nature, justice requires the Finder of Fact to carefully listen to all the evidence before making a decision.
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Just as importantly and in so doing, the trier of fact must be led by its common sense and life experiences.
Invading that role, what defense lawyers and other legal professionals refer to as the province of the jury, is impermissible.
Providing opinion-testimony to the jury that would encourage the fact-finder to substitute their decision-making authority for that of the proponent is similarly prohibited.
The rule is that an affiant who is not an expert cannot summarize to the jury what she or he thinks happened in the form of an opinion.
That’s the entire purpose and responsibility of the jury.
The Trier of Fact, the “Fact Finder,” the jury decides the truth of the matter and what happened from the evidence presented at the trial.
What is the Trier of Fact?
Whereas the Court (the Judge) rules on issues of law, controlling the admission of evidence on grounds such as relevancy, the “fact-finder” is ordinarily a jury in Superior Court.
As it relates to criminal charges in North Carolina, given a relatively recent amendment to the North Carolina constitution, a Superior Court judge may now serve as both the trier of fact and arbiter of the law.
In essence, the Judge may in certain circumstances be both judge and jury. It’s something we as defense counsel carefully consider as an option in Superior Court – Bill Powers, Criminal Defense Lawyer Charlotte NC
** The Finder of Fact in District Court in NC is the District Court Judge. Appeals are provided, de novo, as a matter of right to Superior Court. You are entitled to a trial by jury. You cannot be forced to waive that right against your will. It’s entirely voluntary and may be a viable tactical decision in defending criminal allegations.
What is a Grand Jury Indictment?
For the purposes of this posting, it’s assumed the jury is the Finder of Fact and the “Court” is the presiding Judge.
The right to a Jury Trial in North Carolina is protected by the 6th Amendment to the US Constitution.
Defense counsel may refer to the North Carolina State Constitution as more expansive, providing for a jury trial, as a matter of right, for all criminal charges.
The defendant may voluntarily waive the right to jury trial in criminal charges, after informed consent and adoption by the Court.
That is pursuant to a voter-authorized Amendment to the NC Constitution.
The one notable exception involves capital murder charges, cases where the death penalty may be imposed if convicted.
Are Police Officers Experts?
Traditionally, probably not.
Police officers are in “[N]o better position than the jury to deduce. . .” what took place than jurors. (North Carolina V. Delau No. COA 19-1030).
The jury is just as well qualified as the witnesses to determine what inferences the facts will permit or require – NC Supreme Court Shaw v. Sylvester 253 NC 176 (1960)
An officer, in his or her testimony, may not invade the province of the jury by drawing inferences from the evidence to convey an opinion as to whether the Defendant is guilty.
And while that may be the traditional approach to non-expert “Lay Opinion” testimony under Rule 701 of the NC Rules of Evidence, with increasing frequency law enforcement are being classified as 702 “Experts” by their training, education, and experience.
Nowhere is that truer than in DWI charges in North Carolina.
Law enforcement officers, with very minimal training and experience, are frequently presented as “experts” in Standardized Field Sobriety Tests – SFST and discerning appreciable impairment.
The General Assembly has put a very hefty thumb on the scales of justice, passing laws that specifically designate certain officers “experts,” 
thus eliminating the Court’s discretion and independence in determining qualification as a 702 Expert.
Going a step further, the General Assembly has further deemed the Horizontal Gaze Nystagmus test (the “HGN”) reliable to such extent that within Rule 702 by legislative fiat the HGN test is deemed reliable, trustworthy, and therefore likely admissible in as evidence of impairment.
Charlotte DUI Lawyer – Bill Powers – NC DWI Defense
Our law firm helps people throughout North Carolina facing charges of “drunk driving.”
We travel wide and far if we think we can make a difference. Whether you call it ‘drunk driving’ or DUI or DWI doesn’t much matter. We want to help people facing serious impaired driving charges – Bill Powers, Criminal Defense Attorney
Call Bill Powers at 704-342-HELP 704-342-4357
You may also reach Bill by email: Bill@CarolinaAttorneys.com