Opinion Testimony Flashcards
Rule 602: Need for Personal Knowledge
A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness’s own testimony. This rule does not apply to a witness’s expert testimony under Rule 703.
Two types of opinion testimony
(1) Lay Opinions
(2) Expert Opinions
Lay Opinion
FRE 701: if a witness is not testifying as an expert, testimony in the form of an opinion is
limited to one that is:
(a) Rationally based on witness’s perception
(b) Helpful to clearly understanding the witness’s testimony or to determining a fact in
issue; and
(c) Not based on scientific, technical, or other specialized knowledge within the
scope of 702
Rule 701 Overview:
Non-expert or lay opinions may be introduced under the rule if:
Witness testimony is rationally based on their own perception
The lay opinion is helpful to
Understand the witness testimony OR
Determination of a fact at issue
BUT the testimony can’t be based on scientific, technical, or other specialized knowledge
Examples admissible:
Speed
Distance
Physical state of another person
Emotional state of another person
Description of what your sense tell you
Sanity
United States v. Yazzie
Rule of Law
Under Federal Rule of Evidence 701, a lay witness may give opinion testimony if the testimony is rationally based on the witness’s perception and is helpful to a clear understanding of the testimony or the determination of a fact at issue.
Facts
Johnny Yazzie (defendant) had sexual intercourse with a female victim who was 15-and-a-half years old at the time. Yazzie was charged with the statutory rape of a minor, to which reasonable mistake was a defense. Yazzie defended himself on the ground that he reasonably believed the victim was 16 years old on the night in question. Yazzie sought to introduce the testimony of several witnesses regarding the victim’s age. Specifically, Yazzie sought to introduce testimony that the witnesses believed the victim was 16 years old on the night in question. The district court permitted the witnesses to testify to the victim’s appearance on that night, including that she was smoking cigarettes, was driving, was wearing makeup, and was fully developed physically. However, the district court did not permit the witnesses to testify to their opinion about the victim’s age. Yazzie was convicted, and he appealed.
Issue
Under Federal Rule of Evidence 701, may a lay witness give opinion testimony if the testimony is rationally based on the witness’s perception and is helpful to a clear understanding of the testimony or the determination of a fact at issue?
Holding and Reasoning (Reinhardt, J.)
Yes. Under Federal Rule of Evidence (FRE) 701, a lay witness may give opinion testimony so long as the testimony is rationally based on the witness’s perception and is helpful to a clear understanding of the witness’s testimony or the determination of a fact at issue. Essentially, FRE 701 permits lay opinion testimony where the facts could not be adequately presented to the jury without the testimony. In this case, the district court abused its discretion by declining to permit Yazzie’s lay witnesses to give their opinion as to the victim’s age on the night in question. The excluded testimony meets the standard of lay-opinion admissibility under FRE 701. First, the witnesses’ opinions on the victim’s age on the night in question are rationally based on their perceptions of the victim on that night. Second, the witnesses’ opinions on the victim’s age would help a jury to more clearly understand the witnesses’ testimony regarding those perceptions. Guessing a person’s age is difficult, and explaining the reasoning for a guess is even more difficult. The witnesses described the victim’s characteristics and activities on the night in question. However, without context for those descriptions in terms of a final conclusion on the victim’s age, a jury would not have a clear understanding of the witnesses’ descriptive testimony in the context of this case. In other words, permitting the witnesses to offer their opinion on the victim’s age would make the witnesses’ other testimony much more comprehensible for the jury. Finally, one of the central issues of this case is whether Yazzie’s belief about the victim’s age was reasonable. The jury did not see the victim on the night in question and thus, without some frame of reference, would be unable to determine whether Yazzie’s belief was reasonable. Permitting the jury to hear other people’s beliefs about the victim’s age would aid the jury in making a reasonableness determination. For these reasons, the district court should have permitted the proffered lay-witness opinion testimony under FRE 701. Accordingly, Yazzie’s conviction is reversed.
Gorby v. Schneider Tank Lines Inc
Rule of Law
To be admissible under Federal Rule of Evidence 701, lay-witness opinion testimony must be based on the witness’s firsthand knowledge or observation.
Facts
Dennis Gorby was driving on a road when his pickup truck was hit by a semi-tanker truck driven by David Welsch and owned by Schneider Tank Lines, Inc. (Schneider) (defendant). Dennis was severely injured. Edith Gorby (plaintiff), Dennis’s wife, brought suit against Schneider. At trial, Edith called Carl Highlan as a witness. Highlan had been traveling in the opposite direction on the road and had seen the accident. There was no evidence that Highlan had ever driven a semi-tanker or pickup truck. There was also no evidence that Highlan was familiar with either type of vehicle’s safety features or acceleration and stopping times. On cross-examination, Schneider asked for Highlan’s opinion on two issues: (1) whether Welsch did everything he could to avoid the accident, and (2) whether Dennis could have avoided the accident. The district court excluded Schneider’s questions and Highlan’s responses. The jury found in favor of Edith. Schneider appealed.
Issue
To be admissible under Federal Rule of Evidence 701, must lay-witness opinion testimony be based on the witness’s firsthand knowledge or observation?
Holding and Reasoning (Pell, J.)
Yes. Under Federal Rule of Evidence (FRE) 701, a lay witness may give opinion testimony only if the testimony is rationally based on the witness’s perception. Thus, lay-witness opinion testimony must be based on the witness’s firsthand knowledge or observation in order to be admissible under FRE 701. In this case, the district court did not abuse its discretion by excluding Highlan’s opinion testimony. This testimony was not based on Highlan’s firsthand knowledge or observation. Highlan did not have firsthand knowledge of whether Welsch did everything he could to avoid the accident. As Highlan was not in the semi-tanker truck, he did not have firsthand knowledge of what Welsch actually did to avoid the accident. More importantly, Highlan did not know when Welsch first saw Dennis’s truck. Without firsthand knowledge, Highlan’s opinion testimony on this issue is inadmissible. Similarly, Highlan did not have firsthand knowledge of whether Dennis could have avoided the accident. Highlan did not know anything about Dennis’s truck and was generally unfamiliar with pickup trucks. Although this is a more difficult question than the one involving Welsch, the district court did not commit an abuse of discretion by excluding Highlan’s opinion testimony on this issue as the result of speculation rather than firsthand knowledge. For these reasons, the judgment of the district court is affirmed.
Offer of proof: is how appellate court knew what happened without the evidence being admitted
This case vs. Yazze: opinion test was helpful in yazze because of how much personal knowledge the person had, here it would be more helpful for an expert to testify
Expert Opinion
FRE 702: A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise if the
proponent demonstrates to the court that it is more likely than not that:
(a) The expert’s scientific, technical, or other specialized knowledge will help the trier
of fact to understand the evidence or to determine a fact in issue:
(b) The testimony is based on sufficient facts or data;
(c) The testimony is the product of reliable principles and methods; and
(d) The expert’s opinion reflects a reliable application of the principles and methods to
the fact of the case
Qualifications for Expert Opinions
Polston v. Boomershine Pontiac-GMC
Rule of Law
Under evidence law, an expert witness is permitted to give expert testimony only in the field in which he or she is qualified to give an expert opinion.
Facts
Linda Polston (plaintiff) was driving her car, which was manufactured by General Motors Corporation (GMC) (defendant), when she got into an accident. Polston suffered serious injuries as a result. Polston brought suit against GMC, alleging defective design. Polston claimed that she had suffered enhanced injuries due to her car’s lack of crashworthiness. At trial, Polston called Murray Burnstine to testify as an expert witness. Burnstine was a mechanical engineer who worked for Harvard Medical School’s legal-medicine department. Burnstine had significant experience with car accidents generally, as well as how a car’s lack of crashworthiness caused injuries specifically. Burnstine did not have any medical training. The district court permitted Burnstine to testify that Polston’s car was not crashworthy. However, the district court did not allow Burnstine to testify, to a reasonable degree of medical certainty, that this lack of crashworthiness had enhanced Polston’s injuries. GMC moved for a directed verdict. The district court granted the motion, and Polston appealed.
Issue
Is an expert witness permitted to give expert testimony only in the field in which he or she is qualified to give an expert opinion?
Holding and Reasoning (Per curiam)
Yes. An expert witness is permitted to give expert testimony only in the field in which he or she is qualified to give an expert opinion. A witness may be qualified as an expert in one field, but not in another field, even if the two fields are related. Thus, a single witness may testify as an expert in one field and as a lay witness in another field. In this case, the district court did not abuse its discretion in limiting Burnstine’s expert testimony to the car’s crashworthiness. Burnstine was qualified as an expert in the field of mechanical engineering generally and in determining the crashworthiness of a car specifically. Accordingly, Burnstine was properly permitted to testify that, in his expert opinion, Polston’s car was not crashworthy. However, Burnstine had no medical training. As a result, Burnstine was not qualified to offer an expert opinion on the extent of Polston’s injuries, including any medical probabilities that her injuries were enhanced by the car’s lack of crashworthiness. For these reasons, the district court did not abuse its discretion in limiting Burnstine’s expert testimony to engineering, the field in which Burnstine was qualified as an expert. The judgment of the district court is affirmed.
Reliability of Expert Testimony (Frye and Daubert)
3 requires reliability…. To reach reliability, court can look at:
Frye had a “general acceptance” test for methodology being reliable enough to testify about
Daubert introduced more to the test. Court has to consider:
1. Whether Expert will testify as to scientific knowledge
2. That will assist the trier of fact
3. Evidence is reliable
4. Evidence is relevant
● Whether the theory or technique used can be or has been tested
● Whether it has been subjected to peer review and publication
● The known or potential error rate
● The existence and maintenance of standards for the technique
● The degree to which it is accepted in the scientific community
Expert Testimony Based On
Three categories of facts or data experts can base their opinions on:
1. Firsthand observations
2. Presentation of evidence at trial
a. Expert attends trial and listens to evidence
b. Expert is asked hypothetical questions
3. Documents and data provided out of court.
a. Hearsay issue? FRE 703 helps with going around this.
i. 703 allows experts to base their testimony off documents they were
provided with or firsthand experience so long as other experts in their
fields would reasonably rely on that information
Don’t confuse 703 & 702!
● FRE 703 Bases of an Expert → WHAT an expert is allowed to bring it
● FRE 702 Expert Testimony → WHETHER the information relied upon is
SUFFICIENT
General Electric Co. Joiner
Rule of Law
When reviewing a trial court’s decision to admit or exclude expert testimony, an appellate court should apply an abuse of discretion standard.
Facts
Robert Joiner (plaintiff) worked as an electrician for the Water and Light Department in Thomasville, Georgia. As part of his job, he came into frequent contact with a mineral-based dielectric fluid, used as a coolant. After several years, it was discovered this fluid contained significant amounts of hazardous chemicals. These chemicals were banned in the United States in 1978. Joiner continued working as an electrician, but in 1991, he was diagnosed with small cell lung cancer. Joiner sued General Electric Co (GE) (defendant) and Westinghouse Electric (WE) (defendant), both manufacturers of the dielectric fluid. In his complaint, Joiner linked his cancer to exposure to the fluid. However, Joiner had also been a smoker for eight years, and both his parents were smokers. There was also a history of lung cancer in his family. Although admitting he may have already been at a heightened risk for lung cancer, Joiner alleged his exposure to the fluid “promoted” his cancer. He stated that but for his exposure to the fluid his cancer likely would not have developed for many years, if at all. At trial, GE and WE presented expert testimony stating that there was no evidence Joiner was actually exposed to the hazardous chemicals, and there was no evidence of a link between exposure to the chemicals and small cell lung cancer. The district court admitted this testimony but excluded the counter testimony of Joiner’s experts on the ground that it did not rise above “subjective belief or unsupported speculation.” The court of appeals reversed after applying a “particularly stringent standard of review.” The United States Supreme Court granted certiorari on the issue of the standard of review.
Issue
Whether an abuse of discretion standard is appropriate for an appellate court to apply in reviewing a trial court’s decision to admit or exclude expert testimony.
Holding and Reasoning (Rehnquist, C.J.)
Yes. The district court did not abuse its discretion in excluding questionable expert testimony offered by Joiner, and the decision of the court of appeals is reversed. When reviewing a trial court’s decision to admit or exclude expert testimony, an appellate court should apply an abuse of discretion standard. This rule holds true even after Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579 (1993), where a district court decided to exclude scientific evidence. While Daubert expands the scope of evidence admissible under the Federal Rules of Evidence, it still ensures the trial judge will serve in a “gatekeeper” role in screening this evidence. This role requires significant deference from reviewing courts. Accordingly, a trial judge’s decision to exclude expert or scientific evidence should only be overturned if the trial judge clearly abused his discretion. The district court did not abuse its discretion in excluding Joiner’s expert witnesses. These witnesses sought to testify only about clinical studies involving mice that were exposed to the hazardous chemicals in question, not humans. As such, no conclusive evidence exists linking exposure to these chemicals to small cell lung cancer and the trial judge properly held them inadmissible. Additionally, Joiner’s experts sought to introduce four studies about workers in other types of professions who allegedly developed cancer after exposure to other types of chemicals not at issue in Joiner’s case. These studies are irrelevant and unpersuasive given the particular facts of Joiner’s case. Thus, the trial judge did not abuse his discretion in excluding them. The decision of the appellate court is reversed and remanded.
Kumcho Tire Co
Rule of Law
The general principles for preliminary determinations of admissibility outlined in Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) apply to all expert testimony provided for in Federal Rule of Evidence 702.
Facts
Patrick Carmichael (plaintiff) was driving a minivan when one of its tires blew out. The tire was manufactured by Kumho Tire Company (Kumho) (defendant). The blowout caused the death of one passenger and injury to the others. Carmichael brought a products-liability action against Kumho, claiming the tire was defective. At trial, Carmichael sought to introduce the testimony of his engineering expert witness, Dennis Carlson, who stated that he had concluded that the blowout was caused by a manufacturing or design defect in the tire. Carlson testified that he could tell the difference between blowouts caused by defects and those caused by tire abuse. He stated that blowouts caused by tire abuse exhibited four symptoms and that at least two of those symptoms had to be present for a blowout based on tire abuse to occur. Finally, Carlson testified that he saw all four symptoms of abuse in his inspection of the tire in question but that none of the symptoms were present to a significant degree. He concluded that tire abuse did not cause the blowout and so it must have been caused by a defect. Kumho sought to exclude the testimony based on the preliminary reliability test from Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993). The district court agreed and excluded the testimony based on a preliminary determination that Carlson’s methodology in his determination of what caused the blowout was unreliable. The United States Court of Appeals for the Eleventh Circuit reversed. The United States Supreme Court granted certiorari.
Issue
Do the factors used in determining whether scientific knowledge of an expert witness is admissible under Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) apply to all expert testimony?
Holding and Reasoning (Breyer, J.)
Yes. The general principles outlined in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), apply to all expert testimony provided for in Federal Rule of Evidence 702. The rule makes no distinction between “scientific” knowledge and “technical” or “other specialized” knowledge, and thus its reliability standard applies to all expert knowledge. It would be almost impossible for courts to distinguish between evidentiary rules for scientific knowledge and technical knowledge, as they often overlap. Additionally, because the court in Daubert stressed that the factors it laid out to assist a court in its preliminary determination of the admissibility of the expert testimony are not exclusive, a trial judge may consider the factors that Daubert specifically discussed but may consider other factors as well. Indeed, the reliability inquiry is very flexible and at the discretion of the trial court, with the primary emphases being validity and reliability. In this case, the district court did not abuse its discretion in holding that Carlson’s methodology in determining whether a defect caused the blowout was unreliable. According to the trial court, Carlson’s premise that he could tell by visual inspection whether a tire had been abused was questionable. Also questionable was Carlson’s explicit theory that two out of his four tire-abuse symptoms were necessary to prove that abuse caused the blowout. Finally, the district court also questioned how Carlson determined that the blowout was caused by a defect despite evidence of each of the four symptoms of tire abuse. These were all valid criticisms of Carlson’s methodology. More importantly, the district court found that none of the factors explicitly laid out in Daubert indicated that his methodology was reliable, and the district court could not come up with any relevant factors that would make his testimony reliable. As a result, the district court did not abuse its discretion, and the United States Court of Appeals for the Eleventh Circuit is reversed.
Rule 703: Bases of an Expert
An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.
Rule 703 Overview: switch
If facts or data are inadmissible, they can still be disclosed to the jury but only if:
Probative value substantially outweighs prejudicial effect (switch of 403 test)
For the purpose of helping the jury evaluate the opinion
What can Experts base their opinions on?
Firsthand observation
Presentation of evidence at trial
Presentation of data out of court
Expert v. Lay Opinions (Us. v. Freeman)
United States v. Freeman
Rule of Law
Lay opinion testimony must be based on the witness’s personal knowledge and experience that the jurors do not possess.
Facts
Marcus Freeman, Roy West, and others (defendants) were charged with crimes based on their involvement in a murder-for-hire conspiracy. The United States (plaintiff) alleged that West paid Freeman to kill Leonard Day. The government’s evidence included 23,000 phone conversations involving Freeman, West, and their codefendants. At trial, the government played portions of 77 calls for the jury. The government called Federal Bureau of Investigation (FBI) Special Agent Scott Lucas to testify about his impressions of the phone calls. Lucas had been qualified as an expert witness to testify about code words and drug slang. As the calls were played, Lucas identified voices, explained nicknames, and interpreted some of the statements made in the calls. Lucas’s interpretations repeatedly reminded the jury of the government’s theory of the case. For example, Lucas testified that he believed Freeman’s statement, “So I’m on it for sure ‘cause I need that,” meant that Freeman needed the payment from West if he successfully located and killed Day. Lucas also testified that Freeman’s statement, “[T]he situation is over with,” was referring to West putting a hit on Day and Day being killed. Lucas testified that his interpretations were based on the FBI’s investigation, the 23,000 phone calls, and his 15 years of FBI experience, but he never identified any personal experience that allowed him to understand and interpret the calls. Defense counsel objected to Lucas’s testimony, asserting that it went beyond Lucas’s expert qualifications. The government responded that Lucas was testifying as a lay witness. The district court allowed Lucas’s testimony. The jury ultimately convicted Freeman, and he appealed to the United States Court of Appeals for the Sixth Circuit.
Issue
Must lay opinion testimony be based on the witness’s personal knowledge and experience that the jurors do not possess?
Holding and Reasoning (Cole, J.)
Yes. Lay opinion testimony must be based on the witness’s personal knowledge and experience that the jurors do not possess. There is a unique risk from law-enforcement officers giving lay opinion testimony to interpret conversations for a jury. The officer’s interpretation may be mere speculation and may be based on the agency’s entire investigation, rather than on matters within the officer’s personal experience. However, jurors may think that the officer’s involvement in the investigation gives the officer special knowledge or information beyond the jury’s reach. That raises the possibility that the jury may simply accept the officer’s interpretation rather than rely on its own ability to interpret the evidence. Here, Lucas’s purported lay opinion testimony interpreting the phone calls was based on the FBI’s investigation and not on Lucas’s personal knowledge or experience that the jury did not possess. There was thus not a proper foundation for Lucas’s testimony under Rule 701. Moreover, the calls involved ordinary language that jurors could have interpreted for themselves. But under the guise of lay opinion testimony, Lucas interpreted that ordinary language in a way that essentially argued the government’s theory of the case to the jury. The jury could have believed that Lucas’s knowledge of the investigation and his FBI experience gave Lucas special knowledge about the calls and deferred to his interpretation. Although the government argues that admitting Lucas’s testimony was harmless error because he would have been qualified to give the same opinion testimony as an expert, it is not clear whether the district court would have allowed Lucas to testify as an expert witness. Freeman’s conviction is vacated, and the case is remanded for a new trial.
What about hearsay for expert opinion?
South Central Petroleum Inc v. Long Brothers Oil
Rule of Law
Under Federal Rule of Evidence 703, an expert witness may rely on inadmissible information to form an opinion, as long as the information is of a type reasonably relied on by experts in the particular field.
Facts
Long Brothers Oil Company (Long Brothers) (plaintiff) brought suit against South Central Petroleum, Inc. (SCPI) (defendant) to determine the proper ownership of an oil well. At trial, SCPI called an expert witness who gave an opinion about the proper revenue calculation for determining the amount that was due to Long Brothers for SCPI’s share of the well. The expert witness based his testimony on information that he had received from a commercial production service. The commercial production service had, in turn, received the information from the state government, which had received the information from the operator of the well. There was no dispute that the information forming the basis of the expert’s opinion was hearsay. There was also no dispute that the information was of a type relied upon by experts in the particular field. The district court admitted the expert witness’s opinion testimony, but only the opinion itself and not the underlying information. SCPI moved for summary judgment. The district court granted the motion based on the expert’s revenue calculation. Long Brothers appealed, arguing that the district court abused its discretion by relying on inadmissible hearsay evidence.
Issue
May an expert witness rely on inadmissible information to form an opinion if the information is of a type reasonably relied on by experts in the particular field?
Holding and Reasoning (Heaney, J.)
Yes. Under Federal Rule of Evidence 703, an expert witness may rely on inadmissible information in forming his or her opinion, as long as the underlying information is of a type reasonably relied upon by experts in the particular field. When an expert relies on inadmissible information, any perceived weaknesses in the testimony go to its weight rather than its admissibility. In this case, the district court did not abuse its discretion in admitting SCPI’s expert testimony. The information underlying the expert witness’s revenue calculation was of a kind reasonably relied upon by experts in the particular field. Accordingly, the expert witness was properly permitted to base his opinion on the information, even though the information itself was inadmissible hearsay. The district court made the proper distinction by admitting the expert’s opinion itself, but not the underlying hearsay information. The judgment of the district court is affirmed.
(triple hearsay): first level was information from commercial production service, second is commercial production service got its information from the state, third was state got its information from operator of the well
What if underlying data is unreliable?
Two part test:
Data must be of the type reasonably relied upon by this type of expert (703)
Data must provide a sufficient basis for the opinion (702)
Opinion on the Ultimate Issue
Not automatically objectionable just because it embraces an ultimate issue
United States v. Lockett
Rule of Law
Under Federal Rule of Evidence 704, an expert witness may testify regarding an ultimate issue in a criminal case, as long as the expert does not give a direct opinion about the defendant’s guilt or innocence.
Facts
The Portland Police Bureau entered a house pursuant to a search warrant. Bradford Lockett (defendant) and other individuals were inside the house, along with 1,800 grams of cocaine, some of which was separated into small bags. According to one of the police officers, a room in the house looked like a cocaine-packaging assembly line. Lockett was charged with several cocaine-related crimes. At trial, the prosecution called Portland police officer Derrick Foxworth as an expert witness. Foxworth testified, over Lockett’s objection, that only the people intimately involved with a cocaine-packaging operation would be allowed at the house where the packaging occurred. Lockett was convicted. Lockett appealed, arguing that Foxworth’s testimony improperly gave an opinion about Lockett’s guilt.
Issue
May an expert witness testify regarding an ultimate issue in a criminal case if the expert does not give a direct opinion about the defendant’s guilt or innocence?
Holding and Reasoning (O’Scannlain, J.)
Yes. Under Federal Rule of Evidence 704, an expert witness may testify regarding an ultimate issue to be resolved by the trier of fact in a criminal case, as long as the expert witness does not give a direct opinion about the defendant’s guilt or innocence. In this case, the district court did not abuse its discretion by permitting Foxworth to testify about the types of people typically present in a cocaine-packaging house. Foxworth did not give his direct opinion on Lockett’s guilt or innocence. After Foxworth’s testimony, the jury was still left to determine whether the house in which Lockett was found was a cocaine-packaging house, and whether Lockett’s presence in the house was an anomaly or exception to the general practice that Foxworth described in his testimony. As a result, Foxworth’s testimony was properly admitted. Accordingly, Lockett’s conviction is affirmed.
Exception:
In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.
United States v. Finley
Rule of Law
Under Federal Rule of Evidence 704(b), an expert witness may testify to a defendant’s mental state so long as the expert does not draw the ultimate inference or conclusion for the jury.
Facts
Richard Finley (defendant) was charged with bank fraud and other crimes related to various financial transactions. Intent was a required element of the crime of bank fraud. At trial, Finley sought to introduce the expert testimony of his psychologist, Dr. John Wicks. Wicks testified that Finley had an abnormal belief system that was closed and not subject to change. Finley sought to introduce this testimony in order to permit the jury to conclude that he did not have the intent to commit bank fraud. The district court excluded Wicks’s expert testimony under Federal Rule of Evidence (FRE) 704(b). Finley was convicted, and he appealed.
Issue
Under Federal Rule of Evidence 704(b), may an expert witness testify to a defendant’s mental state if the expert does not draw the ultimate inference or conclusion for the jury?
Holding and Reasoning (Bright, J.)
Yes. Under FRE 704(b), an expert may not give his or her opinion on whether a defendant had the mens rea, or mental state, to fulfill an element of the crime charged. In other words, expert testimony may not compel a conclusion by the jury about an element of the crime. This would inappropriately encroach on the function of the jury. However, an expert witness may testify to a defendant’s mental state so long as the expert does not draw the ultimate inference or conclusion for the jury. In this case, the district court abused its discretion by excluding all of Wicks’s expert testimony. Wicks testified to Finley’s mental state, but did not give an opinion as to whether Finley had the mental state necessary to commit bank fraud. Rather, Wicks merely testified that, in his opinion, Finley had an atypical belief system. After hearing this testimony, the jury would still be left to reach its own conclusions regarding how Finley’s belief system related to the crimes charged. For example, the jury could still conclude that a person with Finley’s belief system could knowingly commit bank fraud. Wicks’s testimony did not compel a conclusion by the jury about an element of the crime. Thus, Wicks’s testimony should have been admitted. Accordingly, Finley’s conviction is reversed,
Disclosure of Facts or Data Underlying Expert Opinion
FRE 705: Unless the court orders otherwise, an expert may state an opinion – and give
the reasons for it – without first testifying to the underlying facts or data. But the
expert may be required to disclose those facts or data on cross examination.
Experts can testify without disclosing underlying facts. However, if the court states
it needs to be disclosed, then required to do so.
Marsee v. United States Tobacco
Rule of Law
Federal Rule of Evidence 705 permits inquiry on cross-examination into the facts underlying an expert’s opinion, even if those facts would otherwise be inadmissible.
Facts
Betty Ann Marsee’s son, Sean, died from oral cancer. Marsee (plaintiff) brought a products-liability suit against United States Tobacco Company (USTC) (defendant), the manufacturer of a snuff product. Marsee alleged that Sean’s use of USTC’s snuff had caused his cancer. At trial, Marsee called Dr. Kent Westbrook as an expert witness. Westbrook testified that, in his opinion, using snuff could cause oral cancer. Westbrook also testified that, based on his review of Sean’s case, Sean’s cancer was caused by USTC’s snuff. On redirect examination, Westbrook testified that he had spoken with other doctors about snuff’s tendency to cause cancer. At this point, USTC objected on hearsay grounds. The district court sustained the objection and excluded any details of conversations that Westbrook had with other doctors about other patients. The jury found in favor of USTC. Marsee appealed, arguing that the district court erred by excluding Westbrook’s additional testimony.
Issue
Does Federal Rule of Evidence 705 permit inquiry on cross-examination into the facts underlying an expert’s opinion, even if those facts would otherwise be inadmissible?
Holding and Reasoning (Seth, J.)
Yes. Federal Rule of Evidence (FRE) 705 permits an expert witness to state an opinion without testifying to the facts that underlie his or her opinion. When an expert does so, FRE 705 also permits inquiry on cross-examination into the facts underlying the expert’s opinion, even if those facts would otherwise be inadmissible. Under this rule, the facts must actually underlie the expert’s opinion in order to be admissible. Facts that are ancillary to or simply reinforce an already established expert opinion are not admissible. In this case, the district court did not abuse its discretion by excluding Westbrook’s testimony about the details of his conversations with other doctors about other patients. The testimony recounting what other doctors said to Westbrook was inadmissible hearsay, because it sought to introduce out-of-court statements for the truth of the matters asserted. However, the other doctors’ conversations with Westbrook did not form the basis of Westbrook’s opinion regarding the link between snuff and cancer. Westbrook formed his opinion on the issue prior to these conversations. This is shown by the fact that Westbrook did not mention the conversations when describing the basis for his opinion during direct examination. The conversations may have reinforced Westbrook’s opinion, but they did not underlie his opinion. Thus, the conversations were not admissible under FRE 705, and were properly excluded as inadmissible hearsay. Accordingly, the judgment of the district court is affirmed.
Rule 706: Court appointed expert witnesses
Trial judge can appoint experts
Sua sponte or in response to motion
Expert can be called an or crossed by either party
Court may authorize disclosure of status to jury
Parties can still call their own experts
