Psychologist Expert Witness Testimony Excluded, Nebraska Supreme Court Affirms

Appellant appeals an order convicting him of first degree murder stating that, among other issues, the district court erred when it excluded his expert witness.  The Nebraska Supreme Court affirmed the district court opinion.

Facts: This case (State of Nebraska, appellee, v. Steven R. Braesch, appellant – Nebraska Supreme Court – March 4th, 2016) involves an appeal of a conviction of first degree murder, using a firearm to commit a felony, and three counts of negligent child abuse.  The appellant (Braesch) filed the appeal on numerous issues, one of which is the alleged error of the district court in excluding the expert witness testimony of his psychology expert witness, Kirk Newring, Ph.D.

Discussion: Newring testified at the district court bench trial about Braesch’s mental state on the day of the murder.  He based his opinion on five pieces of information: 1) sheriff officer reports; 2) coroner/autopsy reports; 3) Interviews with Braesch and other individuals that he knew; 4) pharmacy records of his prescribed medications; and 5) Braesch’s requests to have a leave from work.  Newring stated that he did not perform any psychological tests on Braesch as it had been too long after the homicide and the results would not have been informative.  Newring concluded that Braesch had bipolar I disorder, substance abuse disorder, and anxiety disorder.

The state argued that Newring’s opinion was not valid because, according to Neb. Rev. Stat. § 29-122, evidence of voluntary use of intoxicating substances cannot be used as a defense to show that a defendant did not have the mental capacity to perform a criminal act.  The court agreed with the state, but allowed Newring’s testimony as long as there were no references to Braesch’s voluntary intoxication.  Newring then testified that, separate from any intoxicating substances in his body, Braesch’s bipolar disorder limited his ability to regulate his behavior on the day of the murder.

The court opined that Newring’s opinion was not credible for numerous reasons: 1) His opinion relied on self-reported problems from Braesch; 2) He did not explain how his mental-health principles related to Nebraska’s homicide statutes; 3) He did not explain the scientific methodology he used to retroactively diagnose Braesch; and 4) He did not explain whether this retroactive diagnostic tool was peer-reviewed or how they applied to the facts of the case.

The court then moved on to the reliability of Newring’s testimony.  There are two questions here: 1) Whether Newring reliably opined that Braesch’s was experiencing bipolar symptoms on the day of the murder, which limited his ability to make good decisions; and 2) Whether the judge could have correlated his reasoning to the facts in this case.

The Supreme Court agreed with the appeals court that Newring did not reliably opine about Braesch’s behavior on the day of the homicide.  He did not explain the information he received from his sources, nor did he explain how he came to his conclusions.  The court also agreed with the district court that the trier of fact could not apply the expert opinions to the facts of the case.

Held:  The opinions of the district court were upheld by the Nebraska Supreme Court