OPINIONS AND EXPERT TESTIMONY

In 2006, the Texas Court of Appeals held that an expert witness may not testify to his opinion on a pure question of law. Anderson v. State, 193 S.W.3d 34 (Tex. Crim. App. 2006).

An expert witness may state an opinion on a mixed question of law and fact as long as the opinion is confined to the relevant issues and is based on proper legal concepts. However, an expert witness may not testify to his opinion on a pure question of law.@ Id.

One court has held that expert testimony on the typical structure of a mail fraud scheme was admissible to assist jury in understanding operation of scheme and in assessing whether defendant was involved. U.S. v. McCollum, 802 F.2d 344 (9th Cir. 1986).

Medicare employees testifying as to various technical Medicare concepts, which went to the heart of the case, should have been qualified as experts because their testimony was based “to significant degree on specialized knowledge acquired over years of experience.” U.S. v. White, 492 F.ed 380, 403-04 (6th Cir. 2007).

Testimony based on reports from forensic software, even if it is publicly available, is considered expert testimony and must be qualified as such. U.S. v. Ganier, 468 F.3d 920 (6th 2006).

OPINION TESTIMONY BY LAY WITNESSES [FED. R. EVID. RULE 701]

If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.

OPINION ON ULTIMATE ISSUE [FED. R. EVID. RULE 704]

Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. But, an expert witness may not express an opinion on a conclusion of law. U.S. v. Lueben, 812 F.2d 179, 184 (5th Cir. 1987) [holding that trial court erred in excluding defendant’s expert’s testimony on materiality of certain false statements in a financial statement. Whether these statements would influence a loan officer is a factual inquiry, as opposed to whether they are material which is a legal question].

TESTIMONY AS TO ULTIMATE ISSUE

“. . . FED. R. EVID. 704(b) precludes an experts opinion or inference ‘as to whether the defendant did or did not have the mental state or condition constituting an element of the crimes charged or of a defense thereto.’ …While the distinction may appear to be a fine one, the Advisory Committee explained that the trust of the Rule is to abandon the restriction precluding witnesses from expressing opinions, even on the ultimate issue, as long as the opinions meet the helpfulness requirement.”

Query              Could the defense obtain an expert as to what innocent citizens sound like on the telephone?

But See            U.S. v. Scop, 856 F.2d 5 (2d Cir. 1988). In Scop, the court stated, “None of our prior cases, however, has allowed testimony similar to [this expert’s] repeated use of statutory and regulatory language indicating guilt. For example, telling the jury that a defendant acted as a “steerer” or participated in a narcotics transaction differs from opining that the defendant “possessed narcotics, to wit: heroin, with the intent to sell,” or “aided and abetted the possession of heroin with intent to sell, “the functional equivalent of Whitten’s testimony in a drug case. It is precisely this distinction, between ultimate factual conclusions that are dispositive of particular issues if believed. and “inadequately explored legal criteria,” that is drawn by the Advisory Committee’s Note to Rule 704.

See also Cooper v. Sowders, 837 F.2d 284 (6th Cir. 1988) [evidentiary rule regarding a law enforcement officers testimony];

U.S. v. Thomas, 768 F.2d 611 (5th Cir. 1985) [polygraph expert may not testify as a character of witness for truthfulness based on the result’s of a polygraph test, as same is not in reality “character” testimony under FED. R. EVID Rule 405 or 608].

SCIENTIFIC EVIDENCE-ADMISSIBILITY

FRYE’S INSISTENCE ON GENERAL ACCEPTANCE OF EXPERT (SCIENTIFIC) EVIDENCE REJECTED FOR FEDERAL TRIALS

In Daubert v. Merrell Dow, 509 U.S. 579, 113 S. Ct. 2786, 125 L.Ed.2d 469, 480 (1993),

the Court held:

Given the Rules’ permissive backdrop and their inclusion of a specific rule [702] on expert testimony that does not mention “general acceptance,” . . . Frye made “general acceptance” the exclusive test for admitting expert scientific testimony. That austere standard, absent from and incompatible with the Federal Rules of Evidence, should not be applied in federal trials. Daubert, 509 U.S. 579, 125 L.Ed.2d at 480.

TRIAL JUDGE DETERMINES IF EVIDENCE IS SCIENTIFIC AND HELPFUL

Consequently the Court directed trial judges to make a preliminary inquiry as to whether the proffered testimony is indeed scientific and helpful to the trier of fact. Some of the elements of the Frye test assist the judge in answering these questions; however the Frye test’s reliance on “general acceptance” is not determinative.

Faced with a proffer of expert scientific testimony, then, the trial judge must determine at the outset, pursuant to Rule 104(a), whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.

. . . .

Widespread acceptance can be an important factor in ruling particular evidence admissible, and “a known technique that has been able to attract only minimal support within the community,” [cite omitted] may properly be viewed with skepticism.

. . . .

To summarize: “general acceptance” is not a necessary pre-condition to the admissibility of scientific evidence under the Federal Rules of Evidence, but the Rules of Evidence – especially Rule 702 – do assign to the trial judge the task of ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand. Pertinent evidence based on scientifically valid principles will satisfy those demands. Daubert, 509 U.S. 579, 125 L.Ed.2d at 482, 483, 485.

In Kumho Tire Co, Ltd. V. Carmichael, 526 U.S. 137, 110 S.Ct. 1167 (1999) the Court further held that all types of expert testimony are subject to the Daubert analysis prior to admission. Thus expert witness testimony and lay opinion are subject to the gatekeeping inquiry by the court.

Thus the testimony and the expert must be reliable and helpful.

But see State v. Williams, Wis, No. 00-3065-CR (June 6, 2002)[defendant’s right of confrontation not violated when crime supervisor testified about results form a test performed by a colleague, while admission of the lab report violated the hearsay rule].

DISCRETION TO ADMIT POLYGRAPHS

At least one Court has held that a trial court has “discretion” to admit the results of polygraph tests where same have been “stipulated”, or for impeachment or corroboration of trial witnesses, similar to receipt of “character” evidence for “truthfulness”.

U.S. v. Piccinonna, 729 F. Supp. 1336, affd, 925 F.2d 1474 (11th Cir. 1989) (en banc).

“There is no question that in recent years polygraph testing has gained increasingly widespread acceptance as a useful and reliable scientific tool. Because of the advances that have been achieved in the field which have led to the greater use of polygraph examination, coupled with a lack of evidence that juries are unduly swayed buy polygraph evidence, we agree with those courts which have found that a per se rule disallowing polygraph evidence is longer warranted. Of course, polygraph is a developing and inexact science, and we continue to believe it inappropriate to allow the admission of polygraph evidence in all situations in which more proven types of expert testimony are allowed…

“The first rule governing admissibility of polygraph evidence is one easily applied. Polygraph expert testimony will be admissible in this circuit when both parties stipulate in advance as to the circumstances of the test and as to the scope of its admissibility….

“The second situation in which polygraph evidence may be admitted is when used to impeach or corroborate the testimony of a witness at trial.”

“Whether used to corroborate or impeach, the admissibility of the polygraph administrator’s testimony will be governed by the Federal Rules of Evidence for the admissibility of corroboration or impeachment testimony. For example, Rule 608 limits the use of opinion or reputation evidence to establish the credibility of a witness in the following way: “[E]vidence of truthful character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.” Thus, evidence that a witness passed a polygraph examination, used to corroborate that witness’s in-court testimony, would not be admissible under Rule 608 unless or until the credibility of that witness were first attacked. Even where the above three conditions are met, admission of polygraph evidence for impeachment or corroboration purposes is left entirely to the discretion of the trial judge.” U.S. v. Piccinonna, 729 F. Supp. 1336, affd, 925 F.2d 1474 (11th Cir. 1989) (en banc).

Texas, however, continues to deem polygraph exams inadmissible. In an unpublished memorandum opinion in 2005, the Texas Court of Appeals (Houston 14th Dist.) revisited the issue of whether a trial court abuses its discretion in refusing to admit polygraph evidence.

Texas courts have long held that polygraph evidence is inadmissible for all purposes. See Tennard v. State, 802 S.W.2d 678, 683 (Tex. Crim. App. 1991); Lee v. State, 455 S.W.2d 316, 321 (Tex. Crim. App. 1970). Appellant invites us to reconsider this issue, citing a decision by the United States Court of Appeals for the Fifth Circuit and a subsequent dissenting opinion by Justice Meyers of the Texas Court of Criminal Appeals. See United States v. Posado, 57 F.3d 428 (5th Cir. 1995); Landrum v. State, 977 S.W.2d 586 (Tex. Crim. App. 1998) (Meyers, J., dissenting). In Posado, the Fifth Circuit held that a per se rule against polygraph evidence is no longer viable in light of Daubert and recent advances in polygraph technique. Posado, 57 F.3d at 432-33. The Fifth Circuit did not endorse polygraph evidence, but >merely remove[d] the obstacle of the per se rule against admissibility.= Id. at 434.  Three years after Posado, the Texas Court of Criminal Appeals declined to reconsider its per se rule against the admissibility of polygraph evidence in Landrum State, 977 S.W.2d at 586. In his dissenting opinion, Justice Meyers argued that Texas should follow the Fifth Circuit in reconsidering polygraph evidence in light of Daubert, Kelly, and Posado and advances in polygraph technique. Id. at 586-57. (Meyers, J., dissenting). Since Landrum, the Court of Criminal Appeals has suggested that polygraphs may be subject to a Daubert analysis, but it has not explicitly overruled the per se rule against admissibility. See Ross v. State, 133 S.W.2d 618, 625-26 (Tex.Crim.App. 2004). Hunter v. State, 2005 WL 3116478 (Tex. App. Hous. (14 Dist.)).

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