Use Rochkind to Block “SFST Expert” Designation Now — and Strip the State’s Favorite Shortcut
Science-Driven Strategy: Christopher Moschkin is known for method-first defense work — including forcing the State to prove reliability when they try to “expert-designate” an officer to sell SFSTs as science.
Rochkind SFST Expert Challenge Maryland: Why “Officer-as-Expert” Is the Battlefield
Prosecutors love “expert designation” because it upgrades a subjective roadside exercise into something that sounds like science. The jury hears “expert,” and thin observations start to feel like certainty.
Under Rochkind and Maryland Rule 5-702, expert testimony is supposed to be reliable and method-based — not “trust me, I’ve done this a lot.”
We filed a Motion to Exclude SFST Witness as Expert seeking to preclude the State’s proposed “expert” testimony under Rochkind and Rule 5-702. :contentReference[oaicite:2]{index=2} The certificate of service reflects MDEC eFile & Serve on August 6, 2024. :contentReference[oaicite:3]{index=3}
Rochkind SFST Expert Challenge Maryland: The Core Argument
If the State wants an officer to give “expert” opinions that SFSTs prove impairment, the State should have to satisfy reliability gatekeeping: standards, limitations, error rate realities, reliable application, and fit to the facts.
Your defense goal is simple: don’t let the State use the word “expert” as a force multiplier. Make them prove reliability — or limit/exclude the testimony.
Rochkind SFST Expert Challenge Maryland: The 4 Pressure Points That Win Hearings
Rochkind SFST Expert Challenge Maryland: 1) Method and standards (not conclusions)
“He failed” is not a methodology. An “expert” should be able to explain the technique, standards, and application — including deviations and why they matter.
Rochkind SFST Expert Challenge Maryland: 2) Limitations and confounds belong in the record
Roadside conditions (surface, lighting, footwear, fatigue, injury, anxiety, hearing/vision, language, unclear instructions, officer cueing) can drive outcomes without impairment. If the State wants “science,” the limitations come with it.
Rochkind SFST Expert Challenge Maryland: 3) Cut off “ipse dixit” expertizing
A common move is: observations → “therefore impaired.” Our position is: show the data and reasoning chain, or don’t call it expert testimony. Your SFST expert motion squarely attacks conclusory “expert” labeling without a reliable foundation. :contentReference[oaicite:4]{index=4}
Rochkind SFST Expert Challenge Maryland: 4) Fit and prejudice
If “expert designation” is functioning as a credibility badge instead of a reliable method applied to facts, it risks becoming more prejudicial than helpful.
Rochkind SFST Expert Challenge Maryland: What We File (and What We Demand)
- Motion to exclude or limit SFST “expert” designation under Rochkind / Rule 5-702. :contentReference[oaicite:5]{index=5}
- Request for a reliability hearing when the State insists on “expert” framing.
- Hard production demands: training records, scoring sheets, bodycam, prior testimony, and any “expert report.”
- Cross built around reliability: deviations, limitations, standards, and unsupported leaps from observations to conclusions.
Rochkind SFST Expert Challenge Maryland: Why “Clues” Are Not the Same as Proof
“Clues” are often just checkboxes — and many are explained by non-impairment causes. That’s why the fight over “expert designation” matters: it blocks the State from turning subjective checklists into near-scientific certainty.
Related: How we challenge SFSTs
Stamped Filing Evidence: Motion to Suppress SFST Results, Video, and SFST Testimony
In LA08215 et al., the defense sought suppression of SFST results, video recordings during/after the SFST, and all SFST-related testimony and observations. :contentReference[oaicite:6]{index=6} The motion is stamped as E-FILED in St. Mary’s District Court on 9/6/2024 at 7:32 PM. :contentReference[oaicite:7]{index=7}
If the embed doesn’t display on a mobile browser, add a download link: Open the stamped motion
Disclaimer: This page is general information, not legal advice. Every case is fact-specific. Past filings and strategies do not guarantee outcomes.
Below is the fully filed (uploaded/stamped) copy of the first SFST exclusion under Rochkind v. Stevenson (Supreme Court of Maryland’s adoption of Daubert) filed by attorney Christopher G Moschkin in St. Mary’s County District Court for a 2024 DUI case. “Rochkind SFST Expert Challenge Maryland”
Below is the fully filed (uploaded/ stamped) copy of the first SFST expert designation exclusion under Rochkind v. Stevenson (Supreme Court of Maryland’s adoption of Daubert) filed by attorney Christopher G Moschkin in St. Mary’s County District Court for a 2024 alcohol-related DUI in html text/paragraph format, the same as the pdf above.
STATE OF MARYLAND * IN THE
*
v. * DISTRICT COURT
*
*
Defendant * FOR
*
CASE Nos.:5 * BALTIMORE CITY
*
*
MOTION IN LIMINE TO PRECLUDE “EXPERT” TESTIMONY
The Defense moves that the State’s proposed “expert” testimony of Officer Moxey
(#34201/1646) of the Maryland Transportation Authority Police be excluded in this matter as
required by Rochkind v. Stevenson, 471 Md. 1 (2020) and Maryland Rule 5-702. In support of
this motion, the Defense asserts:
INTRODUCTION
The above-captioned matter was set to begin trial before a jury on August 3rd, 2022. The
Court continued the case due to request of the State for further preparation time, against Defense
objection and the Court set the next trial date in excess of speedy trial parameters, which was
demanded in Defense’s omnibus motion.
The State seized the opportunity to perfect their case and employed a purported “expert”
in drug recognition evaluation to opine on the ultimate issue of whether or not Defendant was
under the influence and or so far impaired by drugs or alcohol that Defendant was unable to
safely operate a motor vehicle. Notice of the intended expert testimony was provided by the State
to the Defense on August 9th, 2022.
It is the State, as the proponent of the proffered evidence, who bears the burden of
proving its expert’s conclusions or opinions are reliable and, therefore, admissible. See generally
Rochkind; and see also Bomas v. State, 412 Md. 392, 417 (2010).
2
THE DAUBERT AND ROCHKIND STANDARD GENERALLY
All expert testimony in Maryland must now be analyzed using the standard established in
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) for reliable evidence. See
Rochkind at 11 (“We implement a single standard by which courts evaluate all expert testimony:
Daubert”). Now, under the new standard, “the parties and the trial court are forced to reckon
with the factors that really do determine whether the evidence is reliable, relevant and ‘fits’ the
case at issue.” Id. at 14 (emphasis in original).
By focusing “on the tests used to develop the evidence, the error rates involved, what the
learned publications in the field have said when evaluating it critically, and then, finally, whether
it has come to be generally accepted,” courts must grapple with the “difficult task” of exposing
“evidentiary weaknesses that otherwise would be overlooked” if all that is needed to admit the
evidence is testimony that the methods or procedures have become generally accepted. Id. at 14
(emphasis added).
The State in this case intends to introduce unqualified expert testimony by a police officer
regularly and continuously employed by them that, based on Officer Moxey’s “opinion, as a
Drug Recognition Expert, that was under the influence of a Narcotic Analgesic
and Depressant and was unable to operate a vehicle.” August 9th, 2022 PC Statement and RMS
Report by the State’s Attorney (hereinafter referred to as “expert report” or “report”).
The Defense asserts that there is no overarching discipline to which the Court, or anyone
else for that matter, could look to for a better understanding of the opinion evidence the State is
attempting to elicit at trial. This purported evidence, if it is to be called even that, is wholly
3
without merit, scientific support, or any fundamental analysis – the very basic underpinnings
required by Daubert and Rochkind.
The proposed expert report lacks any sort of analysis and falls well short of the
requirements of Maryland Rule 5-702. The report ultimately states that the purported expert,
Officer Moxey, is a Drug Recognition Expert (henceforth “DRE”)and that in his “opinion, as the
drug recognition expert, that was under the influence of a narcotic analgesic and
depressant”. There is no mention of how the evidence in this case supports such a conclusion,
how he reached that conclusion in this case, or how he reaches such conclusions more generally.
Critically, the Court and the trier of fact “must be able to evaluate the reasoning
underlying [the expert’s] opinion.” Ross v. Housing Auth. Of Baltimore City, 430 Md. 648, 663
(2013). Conclusory statements of opinion are not sufficient. And if, as here, “the witness is
relying solely or primarily on experience, then the witness must explain how that experience
leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and
how that experience is reliably applied to the facts. The trial court’s gatekeeping function
requires more than simply ‘taking the expert’s word for it.’” Advisory Committee Note to Fed.
R. Evid. 702 (emphasis added); see also Blackwell v. Wyeth, 408 Md. 575, 606 (2009) (the Court
cannot simply rely “solely on an expert’s word that his conclusion is appropriate to the
underlying data and methods.”).
4
DRUG RECOGNITION EVALUATION IS NEITHER A SCIENTIFIC FIELD OF
STUDY NOR AN AREA OF EXPERTISE RECOGNIZED AS RELIABLE AND IS
THEREFORE INADMISSIBLE IN LIGHT OF THE DAUBERT AND ROCHKIND
FACTORS
The Maryland Court of Appeals in Rochkind set out a non-exhaustive list of factors they
found relevant in interpreting Maryland Rule 5-702. Rochkind at 16-17. The first factor,
testability, refers to whether the “theory or technique” “can be (and has been) tested.” Daubert
at 593 (emphasis added). Second, the peer review factor, asks whether a methodology or
hypothesis has been published to the scientific community for the purpose of detecting
substantive flaws. Id. at 594. The third and fourth factors are the known error rate and the
existence of standards controlling the technique’s operation. Id. The fifth factor is the general
acceptance of the field in the scientific community. There is no specifically required rate of
acceptance, but “a technique that has attracted only minimal support in the scientific community
‘may properly be viewed with skepticism.’” Id.; see also United States v. Adams, 444 F.Supp.3d,
1248, 1258 (emphasis added and internal citations omitted). Five additional factors were adopted
in Rochkind which grew out of Daubert and its progeny in the federal courts. They are: “(6)
whether experts are proposing to testify about matters growing naturally and directly out of
research they have conducted independent of the litigation or whether they have developed their
opinions expressly for purposes of testifying;” “(7) whether the expert has unjustifiably
extrapolated from an accepted premise to an unfounded conclusion;” “(8) whether the expert has
adequately accounted for obvious explanations;” “(9) whether the expert is being as careful as he
would be in his regular professional work outside his paid litigation consulting; and” “(10)
5
whether the field of expertise claimed by the expert is known to reach reliable results for the type
of opinion the expert would give.”
- Testability
There are no objective benchmarks by which to test this particular area of expertise,
theory, or technique. There is no underlying data upon which the expert relies and which could
be independently examined, verified, or tested. This particular expert’s field of purported
expertise is effectively in the law and in his observations of people with no scientific training or
education, and applies observational conclusions taught by lay persons and fellow active and
retired police officers, not scientists or doctors. This factor weighs heavily in favor of exclusion. - Error Rate
If a method has been tested, the Court must then consider its error rate. More importantly,
error rate must be considered in its proper context. For example, in cases involving alleged
firearms and shootings, toolmark examiners and their expert testimony are “very often the
critical factor in determining guilt or innocence – an endeavor that must tolerate only a very
small rate of error. Even an error rate of five percent, which would be low in many contexts,
would be unacceptably high where it drives a guilty verdict because it would mean that one in
twenty convictions could be wrong.” Adams, 444 F.Supp.3d at 1264.
Here, there is no known error rate because there is no way to test this particular DRE’s
efficacy or technique. As such, it is impossible for the Court to determine objectively how
damning the proposed opinion evidence could be. This factor weighs heavily in favor of
exclusion of the proffered expert testimony.
6 - Peer Review
Peer review, for the purposes of the Daubert analysis, is not review of the work by a peer
(such as a verification or technical review). Although, presumably, there was no such technical
review in this case since there was no testing or analysis to review. Rather, the “question of
whether a methodology has been subjected to peer review is a question of whether a
methodology or hypothesis has been published to the scientific community for the purpose of
detecting substantive flaws. If a methodology has been published but not for this purpose, this
factor is not satisfied in favor of admissibility.” Adams at 1265 (internal citations omitted); see
also Daubert at 593 (“submission to the scrutiny of the scientific community is a component of
‘good science,’ in part because it increases the likelihood that substantive flaws in methodology
will be detected).
Counsel was unable to find a single scientific journal or publication suggesting the
existence of peer review in the context of DRE efficacy, and in fact found the most
comprehensive such article to be a study published by the National Institutes of Health that
found that a study that purported to find “the theory depends on the false idea that validation
study DRE Opinions generally correct. They were not. The LEDA accuracies highlighted by the
validation studies overstate how often DRE officers predicted drug categories correctly.
Compton’s 94% accuracy counts mistaken – wrong – drug category predictions as correct so
long as toxicology found literally any proscribed drug other than alcohol. If an officer predicted a
CNS stimulant but toxicology found a CNS depressant, that wrong prediction would contribute a
correct score to Compton’s 94% accuracy. Here the DRE validation studies’ misclassification
bias theory asks us to believe that because the DRE officer found what he thought were signs of
a stimulant that was not present, the driver must have been impaired by a depressant whose
7
physical signs were not found. More likely wrong predictions were just that, wrong predictions,
and Compton’s highlighted 94% accuracy was subject to misclassification bias.” The
methodological quality of three foundational law enforcement drug influence evaluation
validation studies, 2013; 12: 16. Published online 2013 Nov 4. Doi: 10.1186/1477-5751-12-16
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3828623/. - Standards and Quality Control
Because there exists no data upon which to rely and no scientific theory or technique
applied by practitioners in this field, there quite obviously exist no standards or quality controls.
All observations are subjective, no BWC recording of the evaluation was presented in discovery
and presumably does not exist unless the State is willfully withholding the evaluation footage
because it is exculpatory. This factor weighs heavily in favor of exclusion. - General Acceptance
It is extremely doubtful that any competent scientist in a traditional, scientific discipline
would consider the opinions of a DRE on questions of both law and fact to be reliable or
generally accepted as somehow scientifically reliable, given the complete lack of any scientific
analysis or data upon which any analysis could ever be conducted. The previously cited NIH
publication found: “accuracies were subject to forensic spectrum bias”; “The accuracies reported
by Compton and Adler were subject to selection bias”; “More likely drivers were not impaired
by drugs present at extremely low levels and Compton’s reported accuracy was inflated by
misclassification bias”; Compton and Adler administered the reference test (toxicology) only to
people who failed the index test (LEDA). The sensitivities and specificities discovered by these
studies are subject to verification bias…”; “In all three studies, SFST serves as both index test
and reference test for impairment. The accuracies reported by these studies are subject to
8
incorporation bias”; Current US law enforcement DIE methods do not reproduce the LEDA
methods investigated in Bigelow, Compton, and Adler. The accuracies reported in these studies
do not reflect the accuracy of current DIEs”; “Compton and Adler do not describe their reference
tests in reproducible detail”Compton’s report that DRE Opinions “identified one or more drugs
correctly in 87% of the suspects” [Compton, page 16], and Adler’s “DRE decisions were
supported by laboratory analysis for 404(83.5%) of the 484 specimens” [Adler, page 33], both
relied on this methodology. Neither number correctly quantifies the probability relevant to the
US law enforcement use of DIEs, the probability that an individual LEDA DRE Opinion is
correct”; “Neither Bigelow, Compton, nor Adler reported the externally valid statistics needed to
calculate diagnostic accuracy of the LEDA-like testing they investigated or of the DIEs now used
by US law enforcement”;
“CONCLUSION
Bigelow, Compton, and Adlerm the three validation studies commonly cited in American
criminal prosecutions to quantify the accuracy of current US law enforcement DIE practice, did
no reference testing of driving performance or physical or mental impairment, investigated tests
different from those currently employed by US law enforcement, used methodologies that biased
accuracies, and reported DIE statistics that are not externally valid. The LEDA accuracies
reported by these studies do not quantify the accuracy of the DIE process now used by US law
enforcement. These validation studies do not validate current DIE practice.” Id. (Emphasis
added). This factor weighs overwhelmingly in favor of exclusion.
9 - Whether Officer Moxey is proposing to testify about matters growing naturally and
directly out of research he has conducted independent of the litigation, or whether he has
developed his opinion expressly for purposes of testifying.
The discovery provided, the proposed expert report provided, and the curriculum vitae of
Officer Moxey which was not provided as required to qualify an expert, are completely devoid of
any data or any indication that any research has been conducted by Officer Moxey beyond that
which he has claims to have training in. As a police officer internally designated as a DRE, it is
woefully apparent that his sole purpose with respect to Drug Recognition Evaluation is to aid in
the conviction of alleged offenders. As such, his opinion was developed solely and expressly for
purposes of testifying. This factor weighs heavily in favor of exclusion. - Whether Officer Moxey has unjustifiably extrapolated from an accepted premise to an
unfounded conclusion.
Because Officer Moxey’s expert report (if it was in fact prepared by him) provided by the
State lacks any specifics as to why he maintains the opinion he apparently maintains, it is unclear
whether he has unjustifiably extrapolated from an accepted premise to an unfounded conclusion.
Currently it would appear that this factor weighs in favor of neither exclusion nor inclusion due
to the lack of any specificity in Officer Moxey’s report. - Whether Officer Moxey has adequately accounted for obvious alternative explanations.
It does not appear that Officer Moxey has accounted for obvious alternative explanations,
such as whether the Defendant had underlying health issues that may have contributed to his
temporary loss of consciousness. Based on the report, it appears Officer Moxey is basing his
opinion on the weight of the training he received, merely 40 hours as opposed to 4-7 years a
medical doctor or PhD would receive, alone and is not considering factors such as severity or
10
existence of the Defendant’s possible medical condition like diabetes, for which the officer’s
report expresses that was prescribed a drug for treatment thereof. Within Officer
Moxey’s own report, he notes Defendant is prescribed Lamotrigine and
Alogliptin, one of these drugs is prescribed to treate diabetes and a natural alternative conclusion
to Officer Moxey’s report is that Defendant may have suffered complications
from his diabetes, such an alternative explanation is not mentioned once in Officer Moxey’s
report. This factor weighs in favor of exclusion. - Whether Officer Moxey is being as careful as he would be in his regular professional
work outside of his paid litigation consulting.
Officer Moxey is a police officer ultimately employed by the same agency calling him to
testify at trial on their behalf. He works for the Maryland Transportation Authority police in the
MDTA Operations Detachment, which is a law enforcement agency under the State’s employ.
There is no way to determine whether he is being as careful as he would be in his regular
professional work outside of his paid litigation consulting, because testifying on the State’s
behalf is part of his regular, full-time employment. As such, it would appear this factor weighs
slightly in favor of exclusion. - Whether the field of expertise claimed by Officer Moxey is known to reach reliable
results for the type of opinion the expert would give.
The field of expertise claimed by Officer Moxey is in Drug Recognition Expert. As stated
previously, there is no scientific community of Drug Recognition Experts. In the absence of any
information to the contrary, it can be safely presumed such testimony would not reach reliable
results. This factor weighs heavily in favor of exclusion.
11
THE CONCLUSION DRAWN BY OFFICER MOXEY IS
NOTHING MORE THAN IPSE DIXIT BECAUSE NO BASES
UPON WHICH IT IS MADE HAVE BEEN PROVIDED.
The State’s expert report contains the examiner’s conclusion only, and does not provide
any bases for that opinion. As such, it amounts to a pure ipse dixit that the Defendant was
impaired by drugs at the time of his accident. It must therefore be excluded under MD Rule 5- - See United States v. Saunders, 826 F.3d 363 (7th Cir. 2016) (Without disclosing the features
relied on by the government’s expert, “he ha[d] failed to disclose [the] basis” for his opinion);
State v. McPhaul, 808 S.E.2d 294 (N.C. Ct. App. 2017) (where fingerprint examiner did not
detail which features she relied on in concluding a match, the State failed to show that the expert
“applied the principles and methods reliably to the facts of the case”); see also United States v.
Monteiro, 407 F. Supp. 2d 351, 374 (D. Mass. 2006) (“Until the basis for the identification is
described in such a way that the procedure performed . . . is reproducible and verifiable, it is
inadmissible under Rule 702”).
As the Supreme Court of the United States noted in General Electric Company v. Joiner,
522 U.S. 136, 137 (1997) (holding that the animal studies relied upon by expert physicians were
insufficient to support conclusion that plaintiff’s exposure to certain chemicals contributed to his
cancer), “nothing in either Daubert [or the rules of evidence] requires a [trial] court to admit
opinion evidence that is connected to existing data only by the ipse dixit of the expert. See also
Rochkind at 36.
In this case, there are absolutely no studies upon which the proposed expert seems to rely.
None have been provided and none have seemingly been considered. Officer Moxey is
apparently basing his opinion on his experience as a police officer in Maryland and a 40 hour
12
class he attended, possibly many years ago, that explains a detection process that has not be
scientifically validated except in three older studies which the cited study by NIH
aforementioned concludes are not at all validations of accuracy and are plagued by a plethora of
scientific bias. In other words, it is his personal opinion that, based on his personal interactions
and a 40 hour class he took given by non medical or scientific instructors, that the Defendant was
impaired by drugs at the time of his accident. This type of testimony is the very definition of
speculative, conclusory, and unfairly prejudicial evidence that the Courts in Daubert and
Rochkind were attempting to eliminate. See generally Daubert, Rochkind, and Md. R. Evid. 5-
403.
Without providing the bases for the proposed expert opinion, the State has failed to meet
its burden of admissibility.
1 Officer Moxey’s opinion, report and testimony are thereby
inadmissible in this case.
CONCLUSION
Under MD Rule 5-702, Daubert, and Rochkind, the report and proposed expert testimony
are inadmissible. Because the discipline as a whole has not been shown to be reliable and this
particular expert has not provided the bases for his opinion testimony, the State has not met its
burden of admissibility. See Rochkind, 471 Md. at 36.
1 The Court of Special Appeals has emphasized that “simply because a witness has been tendered and
qualified as an expert in a particular occupation or profession, it does not follow that the expert may render an
unbridled opinion, which does not otherwise comport with Md. Rule 5-702.” Giant Food, Inc. v. Booker, 152 Md.
App. 166, 182 (2003). The Court of Appeals has specifically “rejected the argument that the adequacy of the
basis for the opinion of an expert goes only to the weight to be given to the expert’s testimony, and not to its
admissibility as evidence.” Beatty v. Trailmaster Products Inc., 330 Md. 726, 741 (1993) (internal citations omitted
and emphasis added). “If a proffered expert opinion, properly challenged, fails the Rule 5-702 test in any respect,
it does not come into evidence at all. It does not come halfway in, with less than full efficacy. Under Rule 5-
702, the evidence is either in or out.” Terumo Med. Corp. v. Greenway, 171 Md. App. 617, 624 (2006).
13
WHEREFORE, the Defense asks this Court to:
(a) Preclude the report and proposed testimony of Officer Moxey;
(b) Schedule a hearing on this Motion prior to the newly scheduled trial date or
immediately if Defense motion for continuance is denied; and
(c) Grant any other relief this Court deems proper.
Christopher G. Moschkin, Esq.
CPF#: 1812120031
Christopher G. Moschkin, Esq. LLC
2227 Bel Pre Road
Ste 177
Silver Spring, MD 20906
(301) 310-6170
chris@rockville-law.com
Attorney for
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that this October 6th , 2022, a copy of the foregoing motion was
electronically filed and served via email to:
ASA Stephanie Haddad
Assistant State’s Attorney
Office of the State’s Attorney for Baltimore City
(410) 878-8448
Shaddad@stattorney.org
Christopher Moschkin, Esq.
Defense Counsel