Davis v. State of Ohio, Cuyahoga County Common Pleas Case No. CV96-312322
March 3, 2000
criminal profiling, expert testimony, Sam Sheppard, Gregg McCrary, voir dire, crime scene analysis, Ohio R. Evid. 404(a), character evidence, Ohio R. Evid. 403, Ohio R. Evid. 702(c), Ohio R. Evid. 702(b), motion in limine, plaintiff's filing
Renewed motion by the Sheppard Estate to exclude the purported expert testimony of Gregg McCrary. This motion came after the court initially denied the Estate’s motion to exclude McCrary’s testimony, pending an expert voir dire. McCrary was a retired FBI investigator, and was a State's witness who would testify about his crime scene analysis and criminal profile analysis. The Estate renewed this motion making three different arguments in support. The first is that McCrary’s testimony was inadmissible because according to the Estate, Rule 404(A) of the Ohio Rules of Evidence prohibits profiler evidence because it impermissibly places character evidence into issue. The Estate argues further that the Rule 403 balancing test, if applied, would show that the prejudicial nature of McCrary’s testimony outweighs its probative value. Additionally, McCrary’s conclusion that Dr. Samuel Sheppard must have committed the murder violates Rule 702 by invading the province of the jury to determine the facts. The Estate further argues that McCrary’s credentials and qualifications do not satisfy the requirements of rule 702(B) of the Ohio Rules of Evidence that an expert “witness be ‘qualified as an expert by specialized knowledge, skill, experience, training or educations regarding the subject matter of the testimony.’” According to the Estate, McCrary does not meet these requirements because he as a Bachelor of Fine Arts in an unrelated area, a Master of Arts in Psychological Services, he “has never handled a domestic homicide investigation, has not had any formal training in the area. . . has published only one article, in [the]. . . area. . . has no accredited degree in criminology, and has never testified to a jury regarding the results of any of his crime scene analyses.” The Estate further contends that McCrary’s testimony is not “based on reliable scientific, technical, or other specialized information” pursuant to rule 702(C), and that the court should “consider (1) whether the theory. . . has been tested, (2) whether it has been subjected to peer review, (3) whether there is a known rate of error, and (4) the methodology has gained general acceptance.” The Estate contends that McCrary’s “theories and conclusions have not been tested: he has not published them, or subjected them to any other method of peer review; his technique cannot be quantified into any meaningful calculation of errors or false positives; and his field, ‘behavioral criminology,’ is not generally recognized by the appropriate community.”
Carr, George H. and Gilbert, Terry H., "Renewed Motion to Exclude Expert Testimony of Gregg McCrary" (2000). 1995-2002 Court Filings. 152.