HGN test in Massachusetts

2024Realini described the horizontal gaze nystagmus (HGN) test as a "simple directions test" pursuant to the judge's ruling on the defendant's motion in limine stating that the opinion testimony relative to the test was inadmissible, but the Commonwealth could elicit testimony about "whether or not the defendant could follow simple instructions 3 such as keeping his head still and following the moving finger only with his eyes." See Commonwealth v. Sands, 424 Mass. 184, 188 (1997) (HGN test result evidence requires expert testimony due to test's scientific nature).

2018The defendant correctly asserts that the Commonwealth must lay an evidentiary foundation for scientific testimony before introducing testimony on an HGN test because it "relies on an underlying scientific proposition" that is "not within the common experience of jurors." Commonwealth v. Sands , 424 Mass. 184 , 188 (1997).

2026Even if the jury had concluded that an additional FST was administered besides the tests they heard about in detail -- the alphabet, finger-count, walk-and-turn, and one-leg-stand tests -- it is "speculative" to conclude "that the jury . . . would have inferred [that] the defendant had failed this additional test." Commonwealth v. Dumais, 60 Mass. App. Ct. 70, 73 (2003). 3 2.

2026Even if the jury had concluded that an additional FST was administered besides the tests they heard about in detail -- the alphabet, finger-count, walk-and-turn, and one-leg-stand tests -- it is "speculative" to conclude "that the jury . . . would have inferred [that] the defendant had failed this additional test." Commonwealth v. Dumais, 60 Mass. App. Ct. 70, 73 (2003). 3 2.

2024At trial, and on appeal, the defendant objects to the simple directions exercise being called a "test," arguing that doing so falsely lends it "an aura of scientific validity." Commonwealth v. Gerhardt, 477 Mass. 775, 776 (2017).

2018Leahy's deviation from standard practices in administering the FSTs does not affect the admissibility of the evidence. 2 See Commonwealth v. Schutte , 52 Mass. App. Ct. 796 , 801 (2001), quoting Commonwealth v. Vaidulas , 433 Mass. 247 , 254 (2001) ("Any failure to adhere to training standards ... 'b[ore] on the weight of his testimony' ").

2018Leahy's deviation from standard practices in administering the FSTs does not affect the admissibility of the evidence. 2 See Commonwealth v. Schutte , 52 Mass. App. Ct. 796 , 801 (2001), quoting Commonwealth v. Vaidulas , 433 Mass. 247 , 254 (2001) ("Any failure to adhere to training standards ... 'b[ore] on the weight of his testimony' ").

1997See, e.g., State v. Bresson, 51 Ohio St. 3d 123, 129 (1990) (“HGN test cannot be compared to other scientific tests, such as the polygraph examination, since no special equipment is required”); State v. Murphy, 451 N.W.2d 154, 158 (Iowa 1990) (“ease with which the test may be administered and evaluated obviates the need for a more scientific interpretation”).

1997See, e.g., State v. Bresson, 51 Ohio St. 3d 123, 129 (1990) (“HGN test cannot be compared to other scientific tests, such as the polygraph examination, since no special equipment is required”); State v. Murphy, 451 N.W.2d 154, 158 (Iowa 1990) (“ease with which the test may be administered and evaluated obviates the need for a more scientific interpretation”).

1997See, e.g., Merritt, supra at 90 . 5 We conclude that the HGN test relies on an underlying scientific proposition and therefore expert testimony is required.

1997See, e.g., Merritt, supra at 90 . 5 We conclude that the HGN test relies on an underlying scientific proposition and therefore expert testimony is required.

1997See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 594 (1993). he above description of the mechanics of the HGN test was based on the testimony of Trooper Murphy in this case.

1997See, e.g., State v. Bresson, 51 Ohio St. 3d 123, 129 (1990) (“HGN test cannot be compared to other scientific tests, such as the polygraph examination, since no special equipment is required”); State v. Murphy, 451 N.W.2d 154, 158 (Iowa 1990) (“ease with which the test may be administered and evaluated obviates the need for a more scientific interpretation”).

1997See, e.g., State v. Bresson, 51 Ohio St. 3d 123, 129 (1990) (“HGN test cannot be compared to other scientific tests, such as the polygraph examination, since no special equipment is required”); State v. Murphy, 451 N.W.2d 154, 158 (Iowa 1990) (“ease with which the test may be administered and evaluated obviates the need for a more scientific interpretation”).

1997The Supreme Court of California wrote in People v. Leahy, 8 Cal. 4th 587, 606 (1994), “[T]he principal obstacle to the admissibility of the horizontal gaze nystagmus test may be its pretentiously scientific name,” leading the court to conclude that, “a jury might be unduly swayed by HGN evidence solely by reason of its technical nomenclature.” A few courts have concluded that the HGN test does not involve a scientific theory, obviating the need for the application of the State’s scientific evidence admission requirement.

1997The Supreme Court of California wrote in People v. Leahy, 8 Cal. 4th 587, 606 (1994), “[T]he principal obstacle to the admissibility of the horizontal gaze nystagmus test may be its pretentiously scientific name,” leading the court to conclude that, “a jury might be unduly swayed by HGN evidence solely by reason of its technical nomenclature.” A few courts have concluded that the HGN test does not involve a scientific theory, obviating the need for the application of the State’s scientific evidence admission requirement.