Jones v. Sterling

SUPREME COURT OF ARIZONA
En Banc

ANTHONY JAMES JONES, LUIS ) Arizona Supreme Court
RODRIGUEZ-BURGOS, JOSE ) No. CV-04-0216-PR
ALTAGRACIA RODRIGUEZ, )
) Court of Appeals
Petitioners, ) Division One
) No. 1 CA-SA 04-0099
v. )
) Yavapai County
HON. JANIS A. STERLING, JUDGE OF ) Superior Court
THE SUPERIOR COURT OF THE STATE ) Nos. CR2002-0196
OF ARIZONA, in and for the ) CR82001-0502
County of Yavapai, ) CR82002-0543
)
Respondent Judge, ) O P I N I O N
)
)
STATE OF ARIZONA, )
)
Real Party in Interest. )
)
__________________________________)

Petition for Review from Order of the Court of Appeals,
Division One
No. 1 CA-SA 04-0099

Order of the Superior Court of Yavapai County
The Honorable Janis A. Sterling, Judge
Nos. CR2002-0196, CR82001-0502, CR82002-0543

VACATED AND REMANDED

LAW OFFICE OF LEE BROOKE PHILLIPS, P.C. Flagstaff
By: Lee Phillips
Natalie Jacobs
Attorneys for Petitioners

TERRY GODDARD, ATTORNEY GENERAL Phoenix
By: Cari McConeghy-Harris, Assistant Attorney General

And

SHEILA SULLIVAN POLK, YAVAPAI COUNTY ATTORNEY Prescott
By: Dennis M. McGrane, Deputy County Attorney
Attorneys for Real Party in Interest

H U R W I T Z, Justice

¶1 Petitioners in these cases were charged with drug

offenses following traffic stops and the discovery of drugs in

the cars in which they were traveling. They claim that the

police officers who stopped the vehicles were engaged in “racial

profiling,” the selective enforcement of traffic laws based on

race. The issue before us is whether the defendants are

entitled to the appointment of an expert witness to assist them

in proving this allegation.

I.

¶2 Petitioners Anthony James Jones, an African-American,

and Luis Rodriguez-Burgos and Jose Altagracia Rodriguez, both of

whom are Latino, were in vehicles stopped by Department of

Public Safety (“DPS”) officers on I-17 in Yavapai County on

separate occasions in 2001 and 2002 as part of a statewide drug

interdiction effort. In each case, DPS officers discovered

drugs inside the vehicles. Petitioners were thereafter arrested

and charged with drug offenses.

¶3 Petitioners claimed in the superior court that the DPS

officers had selectively enforced traffic laws against them and

other African-American and Latino motorists and contended that

2

the drug charges against them should therefore be dismissed.

Their cases were consolidated with cases of other defendants

making similar allegations.

¶4 The defendants first sought document discovery from

the State to support their racial profiling claim. They offered

testimony by Dr. Frederic I. Solop, Director of the Social

Research Laboratory at Northern Arizona University, in support

of that application. Dr. Solop said that his preliminary

analysis of data about the race of motorists stopped by DPS in

Yavapai County and data on the racial composition of motorists

violating traffic laws in general led him to conclude that a

colorable claim of selective enforcement existed. The superior

court granted the discovery motion.

¶5 Defendants later moved pursuant to Arizona Rule of

Criminal Procedure 15.9(a) for appointment of Dr. Solop as an

expert witness. The superior court denied the motion, holding

that the alleged selective enforcement of traffic laws was not a

defense to the drug offenses for which the defendants were

charged and that the appointment of an expert therefore was not

“reasonably necessary to present a defense” as required by Rule

15.9(a).

¶6 Petitioners sought special action relief in the court

of appeals, which declined jurisdiction. We granted the

petition for review because the issues presented are of

3

statewide importance and first impression.1 We have jurisdiction

pursuant to Article 6, Section 5(3) of the Arizona Constitution

and Arizona Revised Statutes (“A.R.S.”) § 12-120.24 (2003).

II.

¶7 Arizona Rule of Criminal Procedure 15.9(a) provides:

An indigent defendant may apply for the appointment of
an investigator and expert witness . . . to be paid at
county expense if the defendant can show that such
assistance is reasonably necessary to present a
defense adequately at trial or sentencing.

The central issue in this case is whether petitioners’ selective

enforcement claims could constitute a “defense” to the pending

criminal charges.

A.

¶8 In concluding that selective enforcement of the

traffic laws was not a defense to the drug crimes with which

petitioners are charged, the superior court primarily relied on

Whren v. United States, 517 U.S. 806 (1996). In that case,

police officers patrolling a “high drug area” observed a truck

waiting at a stop sign. Id. at 808. As the police approached

the truck, it turned suddenly without signaling and sped off at

an “unreasonable” speed. Id. The officers stopped the vehicle,

purportedly to warn the driver about traffic violations, and

upon approaching the driver's window observed two large plastic

1
The superior court stayed its proceedings to allow
petitioners to seek special action relief. We subsequently
granted a similar stay pending our disposition of this matter.

4

bags of what appeared to be crack cocaine in Whren's hands. Id.

at 808-09. Whren and the driver of the truck were arrested and

illegal drugs were retrieved from the vehicle. Id. at 809. The

defendants were charged with federal drug offenses and moved to

suppress the evidence of the drugs, arguing that the stop was

justified by neither probable cause nor reasonable suspicion of

drug law violations, and that the officers' traffic-violation

ground for approaching the truck was pretextual. Id.

¶9 The Whren defendants, both of whom were African-

American, conceded that the officers had probable cause to

believe that traffic laws had been violated. Id. at 810. They

nonetheless argued that “in the unique context of civil traffic

regulations probable cause is not enough,” because “a police

officer will almost invariably be able to catch any given

motorist in a technical violation.” Id. (internal quotation

marks omitted). This ability to stop virtually any motorist for

a traffic violation raised the danger that “police officers

might decide which motorists to stop based on decidedly

impermissible factors, such as the race of the car’s occupants.”

Id. To avoid this danger, the Whren defendants contended that

“the Fourth Amendment test for traffic stops should be, not the

normal one . . . of whether probable cause existed to justify

the stop; but rather, whether a police officer, acting

reasonably, would have made the stop for the reason given.” Id.

5

¶10 The Supreme Court unanimously rejected the argument

“that the constitutional reasonableness of traffic stops depends

on the actual motivations of the individual officers involved.”

Id. at 813. Instead, the Court held that “[s]ubjective

intentions play no role in ordinary, probable-cause Fourth

Amendment analysis.” Id. Because the officers had probable

cause for the traffic stop, the Court affirmed the lower courts’

refusals to suppress the drugs. Id. at 819.

¶11 Decisions after Whren have confirmed that evidence

seized as a result of a traffic stop meeting “normal” Fourth

Amendment standards is not rendered inadmissible because of the

subjective motivations of the police who made the stop. See

Devenpeck v. Alford, 125 S. Ct. 588, 593-94 (2004); Arkansas v.

Sullivan, 532 U.S. 769, 771-72 (2001). Therefore, to the extent

that petitioners here sought the appointment of an expert to

support a Fourth Amendment argument for suppression of the

seized drugs because of the alleged racial motivations of the

arresting officers, the superior court properly concluded that

Whren barred such a “defense.”

B.

¶12 Whren, however, did not approve selective enforcement

of traffic laws, nor did it hold that proof of such selective

enforcement is irrelevant in the defense of a resulting criminal

6

case. Rather, Justice Scalia, writing for a unanimous court,

emphasized:

We of course agree with petitioners that the
Constitution prohibits selective enforcement of the
law based on considerations such as race. But the
constitutional basis for objecting to intentionally
discriminatory application of laws is the Equal
Protection Clause, not the Fourth Amendment.

Whren, 517 U.S. at 813. Thus, even though the selective

enforcement claims in this case provide no basis for suppression

of evidence under the Fourth Amendment, the question remains as

to whether the petitioners may nonetheless be entitled to expert

assistance to prove a Fourteenth Amendment defense to the

criminal charges.

¶13 As Justice Scalia noted in Whren, it is beyond contest

that race-based selective enforcement of the law violates the

Equal Protection Clause of the Fourteenth Amendment. Id.

“Racially selective law enforcement violates this nation's

constitutional values at the most fundamental level; indeed,

unequal application of criminal law to white and black persons

was one of the central evils addressed by the framers of the

Fourteenth Amendment.” Marshall v. Columbia Lea Reg’l Hosp.,

345 F.3d 1157, 1167 (10th Cir. 2003). Just as a state cannot

enact criminal laws applicable on their face only to African-

Americans or Latinos, neither can its agents enforce facially

neutral laws on the basis of race. A state can no more make

7

“driving while Black” a crime by means of its enforcement

policies than it could by express law.

¶14 The State’s briefing readily and correctly concedes

this. The State contends, however, that proof of selective

enforcement of traffic laws is not a defense to a criminal

charge, but rather entitles injured parties only to civil

redress pursuant to 42 U.S.C. § 1983. It therefore argues that

appointment of an expert to assist in proof of selective

enforcement is not, in the words of Rule 15.9(a), “reasonably

necessary to present a defense adequately at trial and

sentencing.”

¶15 Selective enforcement of traffic laws on the basis of

race can give rise to a § 1983 claim. See, e.g., Johnson v.

Crooks, 326 F.3d 995 (8th Cir. 2003); Farm Labor Org. Comm. v.

Ohio State Highway Patrol, 308 F.3d 523 (6th Cir. 2002); Chavez

v. Ill. State Police, 251 F.3d 612 (7th Cir. 2001); Stemler v.

City of Florence, 126 F.3d 856 (6th Cir. 1997). But the fact

that a § 1983 claim is an available remedy for selective

enforcement does not make it the exclusive remedy. No case

cited by the State so holds, and we are aware of none. And

although Whren does not speak to the issue directly, a long line

of precedent establishes that proof of a violation of the

Fourteenth Amendment through selective enforcement or selective

8

prosecution can be offered by a defendant in defense of criminal

charges.

¶16 The seminal case is Yick Wo v. Hopkins, 118 U.S. 356

(1886). The case involved a San Francisco ordinance prohibiting

laundries in wooden buildings except with a permit from the

board of supervisors. Id. at 368, 373. Yick Wo was convicted

of operating a laundry in a wooden building without a permit and

sought habeas corpus relief in the California courts. After

relief was denied, he appealed to the Supreme Court of the

United States.

¶17 The Supreme Court noted that the underlying ordinance

was facially neutral as to race: it was “fair on its face, and

impartial in appearance.” Id. at 373. However, the record made

plain that Yick Wo and 200 other Chinese “subjects” had

petitioned the board of supervisors for permission to operate

laundries in wooden buildings and that each such application had

been denied.2 Eighty non-Chinese laundry operators applied for

such permission and all but one application was granted. Id. at

374. Thus, the Court concluded:

2
The Court noted that Yick Wo and the defendant in the
consolidated case “have complied with every requisite deemed by
the law, or by the public officers charged with its
administration, necessary for the protection of neighboring
property from fire, or as precaution against injury to the
public health.” Yick Wo, 118 U.S. at 374.

9

[T]he facts shown establish an administration directed
so exclusively against a particular class of persons
as to warrant and require the conclusion that,
whatever may have been the intent of the ordinances as
adopted, they are applied by the public authorities
charged with their administration, and thus
representing the state itself, with a mind so unequal
and oppressive as to amount to a practical denial by
the state of that equal protection of the laws which
is secured to the petitioners, as to all persons, by
the broad and benign provisions of the fourteenth
amendment to the constitution of the United States.

Id. at 373. Given this Fourteenth Amendment violation, the

Court held that “the imprisonment of the petitioners is

therefore illegal, and they must be discharged.” Id. at 374.

¶18 Although the selective enforcement claim in Yick Wo

was somewhat different than the one here, the case squarely

stands for the proposition that violation of the Equal

Protection Clause by authorities enforcing a facially neutral

law can result in dismissal of resulting criminal charges. As

the Court put the matter:

Though the law itself may be fair on its face, and
impartial in appearance, yet, if it is applied and
administered by public authority with an evil eye and
unequal hand, so as to practically make unjust and
illegal discriminations between persons in similar
circumstances . . . the denial of equal justice is
still within the prohibition of the constitution.

Id. at 374. This is precisely what the petitioners before us

are now claiming — that facially neutral traffic laws were

enforced against them because of their race, while not being

enforced against similarly situated White persons.

10

¶19 Whren does not call the basic holding of Yick Wo into

question. Indeed, numerous decisions after Whren have treated

selective enforcement of facially neutral traffic laws as a

potential defense to non-traffic criminal charges arising from a

traffic stop. See, e.g., United States v. Barlow, 310 F.3d 1007

(7th Cir. 2002); United States v. Bell, 86 F.3d 820 (8th Cir.

1996); United States v. Alcaraz-Arellano, 302 F. Supp. 2d 1217

(D. Kan. 2004); United States v. Mesa-Roche, 288 F. Supp. 2d

1172 (D. Kan. 2003); State v. Ballard, 752 A.2d 735 (N.J. Super.

Ct. App. Div. 2000).3 The State is thus incorrect in asserting

that a § 1983 claim is the sole remedy for selective

enforcement.

C.

¶20 The State also contends that even if § 1983 does not

provide the exclusive remedy for selective enforcement based on

race, proof of such conduct is nonetheless not a “defense” for

3
Similarly, courts have long entertained Fourteenth
Amendment “selective prosecution” challenges to criminal
prosecutions. See, e.g., Wayte v. United States, 470 U.S. 598
(1985); Oyler v. Boles, 368 U.S. 448 (1962); State v. Montano, 204 Ariz. 413, 428 ¶¶ 78-79, 65 P.3d 61, 76 (2003); State v.
Deddens, 112 Ariz. 425, 430, 542 P.2d 1124, 1129 (1975). In
United States v. Armstrong, the Supreme Court stated that it had
“never determined whether dismissal of the indictment, or some
other sanction, is the proper remedy if a court determines that
a defendant has been the victim of prosecution on the basis of
race.” 517 U.S. 456, 461 n.2 (1996). Given the procedural
posture of the case now before us, we likewise express no
opinion as to the proper remedy if the superior court determines
that petitioners have been the victims of selective enforcement.

11

purposes of Rule 15.9(a). The State relies primarily on United

States v. Armstrong, 517 U.S. 456 (1996). The defendants in

that drug case alleged that they were the victims of selective

prosecution and sought discovery from the government to support

their allegations that similarly situated suspects of other

races had not been prosecuted. Id. at 459.4

¶21 The Supreme Court first considered whether the

requested discovery was mandated by then Federal Rule of

Criminal Procedure 16(a)(1)(C), which required disclosure of

items “material to the preparation of the defendant’s defense.”

See id. at 461-62.5 While noting that a selective prosecution

claim might well meet the general definition of a “defense,” the

Court concluded that Rule 16(a)(1)(C) was limited to “defenses

in response to the Government’s case in chief.” Id. at 462.

The Court held that “[a] selective prosecution claim is not a

defense on the merits to the criminal charge itself, but an

independent assertion that the prosecutor has brought the charge

for reasons forbidden by the Constitution.” Id. at 463. The

State urges us to interpret the term “defense” in Rule 15.9(a)

in a similar fashion.

4
Selective enforcement and selective prosecution claims are
both governed by the analysis generally applicable to Equal
Protection claims. Barlow, 310 F.3d at 1010.
5
In 2002, Rule 16(a)(1)(C) was relettered as Rule
16(a)(1)(E) and stylistically amended.

12

¶22 We decline that invitation. As an initial matter, it

is important to note that Armstrong did not hold that the

Fourteenth Amendment cannot be raised as a defense in a criminal

trial. To the contrary, while rejecting the notion that

disclosure of certain materials in support of such a claim was

mandated by Rule 16(a)(1)(C), the Court reviewed in detail the

standards of proof applicable to Fourteenth Amendment claims of

selective prosecution. Id. at 463-68. The Court next turned to

the showing necessary to obtain discovery in support of a

selective prosecution claim, concluding that a defendant is

entitled to such discovery only after “a credible showing of

different treatment of similar situated persons.” Id. at 470.

That discussion necessarily assumes that proof of selective

prosecution can be used in defense of criminal charges;

otherwise, discovery of material in support of such a claim

would be a wholly useless exercise in the criminal case.

¶23 More importantly, we believe that the term “defense”

in Rule 15.9(a) is not limited to what the Court in Armstrong

called a “defense on the merits,” but is intended to encompass

the common understanding of the term — “any set of identifiable

conditions or circumstances which may prevent a conviction for

an offense.” Paul H. Robinson, Criminal Law Defenses: A

Systematic Analysis, 82 Colum. L. Rev. 199, 203 (1982); see also

Black’s Law Dictionary 430-31 (7th ed. 1999) (defining “defense”

13

as “[a] defendant’s stated reason why the . . . prosecutor has

no valid case”). Our conclusion is supported by the structure

of Rule 15. For example, Rule 15.2(b) requires a defendant to

“provide a written notice to the prosecutor specifying all

defenses as to which the defendant intends to introduce evidence

at trial, including, but not limited to, alibi, insanity, self-

defense, defense of others, entrapment, impotency, marriage,

insufficiency of a prior conviction, mistaken identity, and good

character.” The comment to Rule 15.2(b) emphasizes that “the

‘notice of defenses’ [is intended] to be a broad disclosure of

the defendant's case, including his rebuttal of the state's case

as well as his own ‘case-in-chief,’” and “goes considerably

beyond notification of ‘affirmative defenses.’” Under the

language of Rule 15.2(b), a claim of selective enforcement is

surely a “defense” of which notice must be given to the State by

the defendant. See Robinson, 82 Colum. L. Rev. at 231-32

(characterizing certain defenses as “nonexculpatory public

policy defenses”).6 We see no reason to interpret the word

“defense” more narrowly in Rule 15.9(a) than in Rule 15.2.

¶24 This broad reading of Rule 15.9(a) finds additional

support in the language of the Rule itself. The Rule allows

6
Similarly, while a defendant’s claim that prosecution was
barred by the statute of limitations or double jeopardy would
likely not meet the Armstrong definition of a “defense on the
merits,” each surely falls within the broad category of
“defenses” for which notice is required under Rule 15.2(b).

14

appointment of an expert when the defendant can show “that such

assistance is reasonably necessary to present a defense at trial

or sentencing.” (Emphasis added.) A defendant does not, of

course, present a defense on the merits at sentencing; he

instead argues for leniency. Because the Rule expressly

contemplates that such arguments qualify as a “defense,”

arguments of constitutional violations deserve no lesser

treatment.7

D.

¶25 The State next argues that Rule 15.9(a) permits only

the “appointment of experts to be used at trial on defense

issues, not on pre-trial issues, such as the one involved in

this litigation.” We do not read the phrase “at trial or

sentencing” in Rule 15.9 so narrowly. Instead, that phrase

encompasses the whole of a criminal proceeding at the trial

court: the pretrial phase, the trial phase, and the judgment

and sentencing phase.

¶26 In this case, the petitioners seek the services of an

expert in support of a motion to dismiss or, in the alternative,

7
The State also argues that because common law affirmative
defenses have been abolished in Arizona, see A.R.S. § 13-103(A)
(2001), selective enforcement cannot be a “defense” for purposes
of Rule 15.9(a), as it is not provided for by statute. Section
13-103(A), however, plainly cannot prevent a defendant from
raising constitutional defenses to a criminal charge. A
selective enforcement claim, as Whren makes clear, arises under
the Fourteenth Amendment, not under Arizona statutes or the
common law.

15

a motion to suppress. While it is true that a defendant must

normally make these motions before trial, Ariz. R. Crim. P.

16.1(b) and (c), nothing precludes a trial court judge from

deferring ruling on a Rule 16 motion until after trial begins.

Cf. Ariz. R. Crim P. 16.3(c) and (d) (allowing a trial judge to

take additional evidence on motions at proceedings “subsequent”

to an omnibus pretrial hearing).

¶27 More importantly, the State’s reading of Rule 15.9(a)

would present potentially serious constitutional concerns. The

denial of expert witness assistance to a criminal defendant can

violate the Due Process Clause of the Fourteenth Amendment. See

Ake v. Oklahoma, 470 U.S. 68, 76-77 (1985) (involving the

appointment of a psychiatrist in a capital case); Little v.

Armontrout, 835 F.2d 1240, 1243 (8th Cir. 1987) (holding that

the due process rationale of Ake applies to all criminal

defendants and expert witnesses). Due process requires the

appointment of an expert when such testimony is “reasonably

necessary” for an indigent defendant to present a defense. See

State v. Gonzales, 181 Ariz. 502, 511, 892 P.2d 838, 847 (1995)

(holding that the “reasonably necessary” standard in the statute

governing appointment of expert witnesses in capital cases is

the same as the threshold showing required under Ake); Jacobson

v. Anderson, 203 Ariz. 543, 545 ¶ 5, 57 P.3d 733, 735 (App.

2002). In those cases in which a defendant requires expert

16

assistance to raise a constitutional defense in a pretrial

proceeding, we would at the least be confronted with a

constitutional dilemma if we read our own rules as precluding

the appointment of an expert. When we can, as here, avoid

constitutional doubt by interpreting a rule in a manner that

does no violence to its text, we will adopt that interpretation.

See Greyhound Parks of Ariz., Inc. v. Waitman, 105 Ariz. 374,

377, 464 P.2d 966, 969 (1970).

III.

¶28 For the reasons above, we hold that the superior court

erred in concluding that a showing of selective enforcement can

never be a defense to a criminal prosecution. It does not

follow, however, that the superior court must grant the Rule

15.9(a) application before it in these consolidated cases.

¶29 Rule 15.9(a) mandates the appointment of an expert

witness only when “such assistance is reasonably necessary to

present a defense adequately at trial or sentencing.” (Emphasis

added.) We have held, in interpreting substantially identical

language in the statute governing appointment of experts in

capital cases, that the decision rests in “the sound discretion

of the trial court.” State v. Gretzler, 126 Ariz. 60, 90, 612

P.2d 1023, 1053 (1980) (“A.R.S. § 13-1673(B) [now A.R.S. § 13-

4013(B)] is not to be construed as mandating, in every case, an

appointment of investigators or experts, nor the expenditure of

17

public money for their use, merely upon application.”); State v.

Apelt, 176 Ariz. 369, 375, 861 P.2d 654, 660 (1993) (“Mere

undeveloped assertions that the requested assistance would be

beneficial are not enough.”) (internal citation and quotation

marks omitted).

¶30 The determination of what is “reasonably necessary” to

prove selective enforcement requires at the outset an analysis

of the elements of such a claim. Because a selective

enforcement claim rests on an assertion that the Equal

Protection Clause has been violated, the claimant must

demonstrate that state action “had a discriminatory effect and

that it was motivated by a discriminatory purpose.” Armstrong,

517 U.S. at 465; see Barlow, 310 F.3d at 1010 (holding that the

same Fourteenth Amendment analysis governs selective prosecution

and selective enforcement claims). “To establish discriminatory

effect in a race case, the claimant must show that similarly

situated individuals of a different race were not [stopped].”

Armstrong, 517 U.S. at 465.

¶31 As the Supreme Court emphasized in Armstrong, this

Fourteenth Amendment test imposes a “demanding standard” of

proof as a “significant barrier to the litigation of

insubstantial claims.” Armstrong, 517 U.S. at 463-64. This

“rigorous standard,” id. at 468, is necessary because a

selective enforcement claim, like a selective prosecution claim,

18

“asks a court to exercise judicial power over a ‘special

province’ of the Executive.” Id. at 464 (quoting Heckler v.

Chaney, 470 U.S. 821, 832 (1985)). The Arizona Constitution,

like its federal counterpart, charges the executive branch with

the duty to ensure that the “laws be faithfully executed.”

Compare Ariz. Const. art. 5, § 4 with U.S. Const. art. II, § 3.

The executive is thus afforded “broad discretion” in enforcing

the law. Wayte v. United States, 470 U.S. 598, 607 (1985).

Decisions about who should be arrested and prosecuted are, in

general, “not readily susceptible to the kind of analysis the

courts are competent to undertake.” Id.

¶32 Caution is also required because a selective

enforcement or selective prosecution claim is easily asserted,

and responding to such a charge may be expensive, time

consuming, and unduly distracting. See Armstrong, 517 U.S. at

468.8 Thus, “the required threshold” in Armstrong for discovery

was designed to “balance[] the Government's interest in vigorous

prosecution and the defendant's interest in avoiding selective

prosecution.” Id. at 470; accord Ballard, 752 A.2d at 741 (“The

threshold test . . . constitutes a reasonable accommodation of

8
For example, in this case copying costs for discovery are
already nearly $7,000; the cost of completing the requested
study has been estimated at anywhere between $10,000 and
$72,000; and some of the consolidated defendants in this case
were indicted nearly four years ago but have not yet proceeded
to trial.

19

competing values. A more lenient standard would encourage the

assertion of spurious claims of selective enforcement as a means

of burdening criminal trials with massive discovery of material

completely irrelevant to the defendant's case.”).

¶33 We believe that the Armstrong standard, although

articulated in the context of discovery, is equally appropriate

in evaluating requests under Rule 15.9(a) for the appointment of

experts to prove selective enforcement claims. In such cases,

the trial court should determine whether the defendant has

presented credible evidence of both discriminatory effect and

intent before appointing an expert. Moreover, in determining

whether an expert is “reasonably necessary,” the superior court

may consider that “[w]hile helpful, purely statistical evidence

is rarely sufficient to support an equal protection claim.”

Mesa-Roche, 288 F. Supp. 2d at 1188. See McCleskey v. Kemp, 481

U.S. 279, 293-94 (1987) (stating that statistics alone will not

prove selective prosecution in all but the rarest of cases).9

9
While statistics conceivably could prove discriminatory
effect in some cases, see Chavez, 251 F.3d at 639-40; Mesa-
Roche, 288 F. Supp. 2d at 1188, they generally will not suffice
in proving the discriminatory intent prong of the Fourteenth
Amendment claim, see Chavez, 251 F.3d at 647-48 (holding that in
the context of a traffic stop, “statistics may not be the sole
proof” of discriminatory intent); Mesa-Roche, 288 F. Supp. 2d at
1192-96 (holding that defendant had not made required showing
where discriminatory effect was shown by statistics, but no
showing of discriminatory intent). Cf. State v. Soto, 734 A.2d
350, 357 (N.J. Super. Ct. Law Div. 1996) (finding a prima facie
case of selective enforcement in light of statistics and direct

20

¶34 In addition, a superior court confronted with a Rule

15.9(a) motion in a case like this should make at least

preliminary inquiry as to the nature of the statistical evidence

that a defendant hopes to produce before determining whether an

expert will be “reasonably necessary” to present a defense. To

support a Fourteenth Amendment claim, statistics must be both

“relevant and reliable.” Barlow, 310 F.3d at 1011. They must

show not a disparity in the number of motorists of each race

stopped by police, but rather that police treated the defendants

differently than other similarly situated motorists of another

race. See United States v. Bass, 536 U.S. 862, 863-64 (2002)

(noting that “raw statistics regarding overall charges say

nothing about charges brought against similarly situated

defendants”); United States v. Turner, 104 F.3d 1180, 1185 (9th

Cir. 1997) (finding proffered statistical study did not focus on

similarly situated defendants). Statistics should also be

reliable. Id. (finding proffered study was “based on a

statistically unimpressive number of federal defendants”);

Alcaraz-Arellano, 302 F. Supp. 2d at 1229-31 (finding racial

profiling study unreliable because benchmark data was not

______________________________________
testimony by former troopers about having been trained and
coached to make race-based profile stops).

21

sufficiently reliable and the stop data lacked

trustworthiness).10

IV.

¶35 In the case before us, the superior court has not yet

had the occasion to analyze the defendants’ request for an

appointment of an expert under the standards articulated above.

Although the defendants claim to have credible evidence of both

discriminatory effect and discriminatory intent and assert that

the proposed study will produce relevant and reliable

information, it is not appropriate in the context of this case

for us to evaluate those claims in the first instance.

Therefore, while we vacate the order of the superior court

denying the application of the defendants for appointment of an

expert, we remand to the superior court for further proceedings

consistent with this opinion.

Andrew D. Hurwitz, Justice

CONCURRING:

_
Charles E. Jones, Chief Justice

10
In contrast, in Mesa-Roche, the court found discriminatory
effect after analyzing studies that accounted for both the
“transient motor population” and “violator” benchmarks. 288 F.
Supp. 2d at 1179-82, 1188-92.

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Ruth V. McGregor, Vice Chief Justice

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Rebecca White Berch, Justice

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Michael D. Ryan, Justice

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