PROPOSED AMENDMENTS TO EXPERT WITNESS RULES IN THE FEDERAL RULES OF EVIDENCE

Transcription

1 PROPOSED AMENDMENTS TO EXPERT WITNESS RULES IN THE FEDERAL RULES OF EVIDENCE RESULTS OF A JUDICIAL SURVEY by THE EVIDENCE PROJECT AMERICAN UNIVERSITY WASHINGTON COLLEGE OF LAW Professor Paul R. Rice, Director Spring, 1998 EXPERT WITNESS TESTIMONY INTRODUCTION As the twenty-fifth anniversary of the Federal Rules of Evidence approached, the Evidence Project of American University s Washington College of Law conducted a two-year study of the Code and published a 350-page report proposing comprehensive revisions. The Evidence Project--Proposed Revisions to the Federal Rules of Evidence, 171 F.R.D. 330 (June 1997). Within this Report the revisions proposed for the expert witness rules, Article VII, were some of the most important. With the relaxed standard for admissibility of expert testimony, cases involving expert witnesses have become the rule rather than the exception. The Supreme Court has given increased screening responsibilities to the trial judge when scientific evidence is presented. In addition, none of the problems within Article VII have been addressed by the Advisory Committee since its adoption in To test the reaction of federal trial judges to the proposed revisions to Article VII, the Project distributed a survey to all sitting judges. Thirty-one judges responded, of which twenty-four attempted to address each question. Seven protested any revisions of any rule in any procedural code. This article reproduces each rule for which revisions are proposed; briefly summarizes the rule s common law origin, with an explanation of the changes it codified; and sets out the proposed revisions in the Evidence Project Report, an explanation of how and why each revision would change the current rule, and the results of the judicial survey with representative comments of judges. The Project welcomes comments from all members of the Bar in the

2 continuing discussion of these issues I. CURRENT RULE/PROPOSED REVISIONS/JUDICIAL REACTIONS A. Who is an Expert--Standard for Admissibility of Expert Testimony Current Rule 702. Testimony by Experts If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. The expert opinion rules in Article VII of the Federal Rules of Evidence brought about significant changes in the use of expert witnesses. Under the common law a necessity standard was imposed--experts could only be called to testify about matters for which there was a need by the finder of facts for expert assistance in understanding and interpreting the evidence or in the applying the relevant scientific or technological principles to the facts in a case. Rule 702 relaxed that standard. Now an expert witness is permitted to testify if the scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue. This relaxed standard for admissibility was coupled with an equally relaxed standard for the determination of expertise. Under the common law an individual could be recognized as an expert only if he possessed substantially more knowledge on the subject in question than the average juror. In contrast, Rule 702, after requiring only that the testimony be helpful, simply states that a witness qualified as an expert by skill, experience, training, or education, may testify. Scientific Evidence Under the common law, the admissibility of novel scientific evidence was determined by the standard promulgated in United States v. Frye, 23 F (D.C. Cir. 1923). Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs. 293 F. at 1014 (emphasis added). When the Federal Rules of Evidence were adopted, there was no explicit rule that addressed the standard for the admissibility of scientific principles and methodologies. The drafters neither endorsed nor repudiated the general acceptance standard. Therefore, without direction in the Rules, courts continued to employ the Frye test until the Supreme Court s decision in Daubert v. Merrell Dow Pharmaceutical, 509 U.S. 579 (1993). In Daubert the Court held that

3 the drafters had tacitly repudiated Frye with the language in Rule 702 that makes expert witness testimony admissible if scientific... knowledge will assist the trier of fact to understand evidence or determine a fact in issue. If the trial judge determines that scientific evidence is reliable, it is admissible, regardless of whether it has obtained a level of reliability that would make it generally acceptable in the relevant science. Without providing a test for reliability, the Court delineated some factors that should be relevant to the determination: (1) whether the science can be tested; (2) whether the science has been published and subjected to peer review; (3) the potential rate of error in the science; and (4) whether the science is generally accepted in the relevant scientific community. Trial judges have had difficulty in fulfilling their responsibilities in this new gate keeper role for two reasons. First, the standard of reliability is vague and subject to different interpretations. Second, it is not clear how the Daubert determination is, in fact, different than the Frye determination since all of the factors delineated by the Supreme Court in Daubert ultimately require judges, who seldom possess scientific expertise, to resort to the relevant science for answers. While the new Daubert test has theoretically changed general acceptance from a prerequisite to merely a consideration, in reality, lack of general acceptance has been a controlling factor. The only difference is that when judges reject scientific evidence today-- because it is not generally accepted as reliable in the relevant science--they characterize their decision as being premised on their lack of belief in its reliability. This is why many of the judges surveyed indicated that their determination of admissibility under Daubert is virtually the same as it was under Frye. This issue has explicitly been moved from Current Rule 702 to Revised Rule 703 where the basis of expert witness testimony, both factual and the scientific or technical, is separately addressed in subsections (a) and (b). Evidence Project Proposed Revisions Revised Rule 702. Testimony by Qualification of Experts If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a A witness is qualified as an expert by if the witness has acquired substantial knowledge of scientific, technical, or other specialized areas, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. Changes from the current rule This proposal would effect two changes in the scope and purpose of Rule 702. First, as the title makes clear, the rule is intended to control only the question of the expert s qualifications. Rule 702 will no longer control the standard for the screening of any particular science or technology, as the Supreme Court interpreted it in Daubert. That question is specifically addressed in the proposed revisions to Rule 703. Second, the standard of expertise is explicit, rather than implicit--the witness must have acquired substantial knowledge in the scientific, technical or other specialized area about which he is testifying. The current rule establishes no

4 standard of knowledge. A witness is considered an expert if that person s scientific, technical, or other specialized knowledge will assist the trier of fact. The reactivation of the common law standard will ensure that the expert testimony will be helpful to the trier of fact. Judicial Survey Responses Question. Would it be preferable for the standards by which the qualifications of expert witnesses are judged, and the standards for screening the basis of individual opinions, to be addressed in separate rules? Twenty-four (24) judges responded to this question. Twenty, or 83%, expressed the belief that the revision would be preferable to the current Rule. [Q]ualifications and basis for opinion are entirely different and should be addressed in separate rules. Even the most qualified expert may not possess a strong basis for an opinion in a fact specific case. Only three judges, or 12.5%, did not favor the proposed change. One judge did not provide an answer because he was not sure that the change addressed any of the real problems that exist in Article VII. Revised Rule 702 is not helpful and too broad. The by any means gives no meaningful guidance on the sources from which information must emanate before a person is permitted to testify. Rule 702 as it exists gives better guidance. B. Basis of Expert Witness Testimony Current Rule 703. Basis of Opinion Testimony by Experts The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. Changes from the common law were most significant in Rule 703. Because the common law role of the expert was solely to assist the jury in its determination of facts, the expert was permitted to give an opinion only on the basis of evidence that had been presented to the jury. Although there was no professed intention to change the role of the expert, Rule 703 did precisely that by permitting the expert to rely on otherwise inadmissible evidence-- evidence that either would not be presented to the triers of fact, or if heard by them, could not be accepted for its truth. In other words, the expert may now give a conclusion to the jury, which the jury would be asked to accept for its truth, but the jury would not itself be permitted to consider the same evidence considered by the expert on arriving at that conclusion. This, in substance, permits the expert to testify about a different case than the one being heard and decided by the jury. Evidence Project Proposed Revisions

5 Revised Rule 703 Basis of Opinion Testimony by Experts If expert testimony will help the trier of fact understand the evidence or determine a fact in issue, a qualified witness may testify to specialized knowledge, as well as opinions and inferences drawn therefrom, without personal knowledge of the underlying facts. (a) Principles, methodologies and applications employed. A proponent of expert testimony must demonstrate, by a preponderance of the evidence, that the scientific, technical, or other bases of the testimony, including all principles, methodologies, and applications employed by the witness in forming opinions and inferences, produce credible results. (b) Factual basis of opinion. The facts or case specific facts in the particular case that an expert uses to support an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. A proponent of expert testimony must demonstrate reliability, under Rule 803(5), for all otherwise inadmissible hearsay data relied on by the expert. An expert may not rely on inadmissible data. Proposed Rule 803. Hearsay Exception; Availability of Declarant Immaterial [changes highlighted] The following are not excluded by the hearsay rule, even though the declarant is available as a witness:.... (5) Recorded Recollection. [Moved to Revised Rule 805(3)] Statements employed in expert testimony. Statements employed by experts in developing testimony for trial, to the extent that such statements are (1) personally observed by the expert, or (2) if not personally observed by the expert, of the type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, and, in both instances, the expert has demonstrated to the presiding judge a basis for concluding that the particular statements possess substantial guarantees of trustworthiness. Changes from the current rule Revised Rule 703 proposes several significant changes. First, it separately addresses in subsections (a) and (b) the standards for screening of principles, methodologies and applications, and the factual basis for the expert s opinion. Second, relative to the screening of principles, methodologies and applications, Revised Rule 703(a) establishes an explicit screening standard-- the principles, etc., must be shown to produce results that are credible by a preponderance of the evidence -- in lieu of the nebulous standard announced in Daubert of scientific validity. Consistent with the Daubert decision, this explicitly relaxes the standard for admissibility of both scientific and technical evidence. Third, the expert would no longer be permitted to rely on inadmissible evidence--but evidence that is reasonably relied on by experts in the relevant community (the standard used now for expert reliance on inadmissible evidence under Rule 703) would become admissible for truth under a Revised Rule 803(5) if it possesses substantial guarantees of trustworthiness.

6 Judicial Survey Responses In the survey judges were asked three questions about these proposed revision to Rules 703 and 803(5): QUESTION. Assuming that the standard for screening the basis for expert witness testimony should be higher than the standard for screening other evidence, i.e., relevance balanced against potential unfair prejudice, should the scientific principles, methodologies and applications employed by an expert have to be shown to be reliable by the standards employed in the particular sciences to which they most closely relate--some of which require an accuracy rate of 98 to 99 per cent? The level of reliability inquired about in this question was the old Frye standard purportedly overruled in Daubert. Nineteen judges responded. Their answers, however, were not clear. Many responses were inconsistent with accompanying comments. Many judges appeared to be commenting on the proposed revisions in Proposed Rule 703(a), rather than responding to the question that was asked. Therefore, rather than reporting the answer, only the comments are reproduced below: Favorable: [The proposed change] may be helpful. OK change I like proposed 703(a). Revised Rule 703 may be helpful and appears to contain sound principles. However, the revision might be unnecessary in light of Federal Rule of Civil Procedure 26(b)(2) which already addresses what an expert must disclose before trial. Rule 26, with respect to the timing and context of disclosure, is more comprehensive and better structured than your revision. Unfavorable: Judges not trained in such areas are not capable of making such fine distinctions and would have to merely rely on the opinions of other experts as to whether methodology achieves such accuracy. This is really just a reformulation of Frye. It is too difficult. Will be having separate hearings on what percentage accuracy required in a particular science. Also some soft sciences (i.e., sociology) may have no such rates (at least agreed upon generally).

7 I don t need to hold another pretrial hearing on what standards for reliability are in each given field. Daubert is enough. QUESTION. If a separate rule addressed the standards for screening the basis of expert testimony, should the standards for screening the factual basis be addressed separately from the standards for screening principles, methodologies & applications? Twenty responses were received. Seventeen, or 85%, believed that the standards should be separately addressed. The format is sensible and useful. I disagree with the last sentence as an all inclusive rule. [The standards should be addressed separately] in order to be consistent with the difference between qualifications and basis for opinion. Good idea. Only three judges, or 15%, responded negatively. Reasons ranged from the Proposed Rules being too strict, and thereby depriving jurors of relevant evidence, to a fear that it would create too much additional work for the judge. This appears to be an overstatement or restatement of Daubert, and I see no purpose in this proposed Rule. The Rule is too strict, or at least it may be so construed, and takes away from the province of the jury. Leave Daubert alone and it will go away. This is asking for more problems, hearings and delay. QUESTION. In the [expert s role as an advisor to the finder of facts], should expert witnesses be permitted to rely on inadmissible evidence of adjudicative facts--those facts upon which the particular issues in controversy will be judged? Twenty judges responded to this question. Twelve, or 60%, expressed the view that experts should not be permitted to rely on different evidence than that being heard by the finder of facts. The following comments were made about the proposed revision to Rule 703(b) and the new hearsay exception for otherwise inadmissible statements employed by the expert: I agree with this proposed change. The current exception allows the rankest type of hearsay to be heard by the jury under the guise that the expert considered it in forming an opinion. I think revised Rules 703(b) and 803(5) are improvements. The present type of

8 evidence reasonably relied upon pretty much gives experts carte blanche to weave a lot of inadmissible evidence into their testimony. This will generate great deal of litigation. However, I support it. This is a practical solution to what can become a technical boondoggle. I would be in favor of requiring substantial guarantees of trustworthiness. Only five judges, or 25%, believed that experts should continue to be permitted to base opinions on evidence the finder of facts will not be permitted to consider. Two reasons expressed were: I am sure there are other examples where experts traditionally rely on hearsay without any guarantees of trustworthiness. This is justifiable simply because we have always done things that way. The burden should be on the party challenging the expert opinion. As proposed, the Rule could lead to unnecessary evidence on data that is not really challenged. Three judges were undecided. One offered the following reason: Is screening by presiding judge necessary? Will it require a pre-trial hearing? No provision for notice to the other side as to what the substantial guarantees are. C. The Ultimate Issue Rule Current Rule 704. Opinion on Ultimate Issue (a) Except as provided in subdivision (b), 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. (b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone. The ultimate issue rule under the common law was a rule that precluded witnesses, both lay and expert, from offering opinion on ultimate issues that the jury was being asked to decide. The rule was premised on the belief that jurors would relegate their independent fact finding role to the expert by accepting his conclusions without independently analyzing their bases or applying the relevant scientific or technological principles. The common law tradition made little sense for several reasons. First, there was little agreement about what constituted an ultimate issue. Second, since the experts were permitted

9 to testify about everything that led to the ultimate conclusion, it was always apparent what the expert would say if permitted. Therefore, little was gained from the suppression of the opinion. It only made the jury wonder why the obvious final question was not asked. Third, the premise of the rule--that the testimony usurped the function of the jury--simply wasn t true. Lay jurors, upon hearing the expert s opinion, were not going to unthinkingly adopt it because, in virtually all cases, both sides presented conflicting expert testimony and the conflict had to be resolved by an independent assessment of the evidence. Rule 704 abolished the ultimate issue rule. However, Congress, following the trial of John Hinckley for attempting to assassinate President Reagan, amended the rule. It added a subsection (b) which reinstated the ultimate issue rule in criminal cases concerning the defendant s state of mind that might be an element of either the charge or a defense. The motivation for this limited resurrection of the ultimate issue rule was the perceived national embarrassment from the parade of psychiatric experts testifying to Hinckley s insanity. The amendment was designed to curb what was described as a parade of experts at a circus. Not surprisingly, the amendment failed. The same experts testify to the same mental diseases and defects, describing the same symptoms, and explaining the same consequences to the psyche of the defendant. The only testimony the expert is preluded from giving under Rule 704(b) is the conclusion that is most relevant to the determination the jury as being asked to make--whether the defendant was likely to have possessed the requisite mental state at the time of the crime. No time has been conserved, no costs have been saved, no parade has been avoided, and no circus has been deterred. But most importantly, nothing has really been kept from the jurors because the expert s opinions on the issues will be apparent to the jurors from the general tenor of the expert s testimony. Evidence Project Proposed Revisions Revised Rule 704. Opinion on Ultimate Issue (a) Except as provided in subdivision (b), t Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue of fact or application of the controlling legal principles to the facts to be decided by the trier of fact. (b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone. Changes from the current rule Two significant changes are proposed in Revised Rule 704. First, the revisions explicitly permit experts to give opinions on ultimate issues that involve the application of controlling legal principles to the facts in the case. Second, they eliminate subsection (b) that makes the state of

10 mind of a criminal defendant the sole exception to the elimination of the ultimate issue rule. Judicial Survey Responses The survey only explored the proposed revisions to current subsection (a). Question: If experts are permitted to give opinions on ultimate issues, should expert opinions be permissible on issues requiring the expert to apply the applicable law to the relevant facts, if proponents demonstrate that the experts are applying legal standards approved by the court? The majority of judges responding to this question, thirteen of twenty, or 65%, did not approve of the revision to subsection (a) that would permit experts to give opinions that require the application of the controlling legal principles to the facts. Two wanted to revive the former ultimate issue rule that precludes opinions on such issues in all cases. There was a strong sentiment among the 65% that such opinions usurp the power of the jury. I do not believe experts should be routinely giving juries explanations about the law, which this revision invites. I prefer the current status of the law where an expert can, with the permission of the court, explain complex regulatory schemes but not legal principles. The revision also creates a problem for the court when the court finds that the expert s explanation of legal principles is wrong. Seven judges, or 35%, approved of the proposal with little comment. D. Disclosure of Basis of Expert Opinion Current Rule 705. Disclosure of Facts or Data Underlying Expert Opinion The expert may testify in terms of opinion or inference and give reasons therefor without first testifying to the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination. Prior to the adoption of the Federal Rules of Evidence, an expert was permitted to give opinions only after it had been demonstrated that the expert had applied his expertise to the facts of the case. To ensure that this was the basis of the expert s opinions, courts required that the expert initially disclose the facts upon which the opinion was based. Rule 705 changed this. It provides that an expert may testify in terms of opinion or inference and give reasons therefore without first testifying to the underlying facts or data, unless the court requires otherwise. It is not apparent why a judge will permit this to be done in light of the fact that Rule 703 permits the expert to testify on the basis of otherwise inadmissible facts, so long as they are of the type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject. Without the basis being stated first, there is no

11 way for the presiding judge to know whether inadmissible evidence was relied upon, and, if so, to determine whether that reliance was appropriate. Simply stated, the judges screening function cannot adequately be performed. In addition, unless the opinion is accompanied by its basis, the jurors cannot assess its value. Therefore, a party will usually have little to gain from separating the opinion from its basis. Evidence Project Proposed Revisions Revised Rule 705. Disclosure of Facts or Data Underlying Expert Opinion The Unless testifying in response to a hypothetical question, an expert, may testifying in terms of opinion or inference, and give reasons therefore without first testifying must, on direct examination, testify to the underlying facts or case specific data that serves as the basis for the any opinion or inference offered by the expert. unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination. Changes from the current rule The proposal in Revised Rule 705 would reverse Current Rule 705, which permits an expert to give an opinion without first giving its basis. Because it is the judge s responsibility to screen the basis of an expert s testimony under Revised Rules 703, and 803(5), and because it makes little practical sense for an adversary to do otherwise, the revision would always require disclosure on direct examination. This will serve to close the present loophole in Rules 703 and 705 whereby inadmissible evidence forms the basis of expert testimony, that basis is never screened by the trial judge for reliability, and the degree to which this has occurred is never made apparent to the trier of facts. Judicial Survey Responses Question: If the role of the expert is to assist the finder of facts in drawing conclusions from facts proven through admissible evidence presented at the trial, should the proponent of an expert witness be permitted to elicit an opinion without eliciting the basis for that opinion? Twenty-one judges responded. Fifteen, or 71%, agreed with the proposed revision, offering the following comments: Revised rule 705 is very helpful and I endorse the recommendation fully. I do not think conclusory opinions help juries. Most direct examinations already operate in this way, i.e., with experts explaining the basis of their opinion, without an objection. Nevertheless, a revised rule requiring the information in direct examination is useful. This is probably a wise change. No lawyer should be foolish enough to elicit an opinion from an expert witness without eliciting the basis for the opinion. The

12 Rule which dispensed with prior practice in this regard was purely theoretical.

13 I believe so, otherwise the opinion becomes lodged in the minds of the jurors before disqualification on cross-examination. Six judges disagreed, on the belief that exploring the basis is purely a tactical decision, and if not done on direct it can adequately be done on cross-examination because liberal discovery rules give parties access to the information prior to trial. It is not necessary to make this change. Rule 705 should stay as is. Liberal discovery rules allow the cross examiner to get at the bases for the opinion. This would cause undue delay in direct examination and a lot of squabbling. [I]f the data is actually disputed cross-examination is adequate to bring out the inadequacies of the evidence upon which the expert relies. II. CONCLUSION The expressed desire of some members of the judiciary that there be a moratorium on revisions is somewhat surprising. Since there have been so few revisions to the Federal Rules of Evidence since their adoption, there has been a virtual moratorium, with a few exceptions that serve to highlight and accentuate the work left undone. Perhaps some of this attitude reflects little more than a desire on the part of over-taxed judges to avoid having to learn new rules and refinements of existing rules and deal with the litigation that any change inevitably prompts. While a justifiable concern, the litigation that will be spawned will quickly subside. And much of that litigation could be avoided if the Advisory Committee commentary following each rule were more complete, with better explanations of each rule s logic, purpose, and scope, as well as explanations of how the rules complement one another. Article VII needs improvement. This study indicates that judges not only agree, they believe that Rules 702 through 705 would be improved by many of the revisions that the Evidence Project has proposed. These proposals offer solutions to the fundamental inconsistency within Article VII of characterizing expert witnesses as aids to the finder of facts, yet permitting them to rely on evidence that the finder of facts cannot consider. The Project has also proposed solutions to the ambiguity in the rules regarding the standards for screening individuals as experts and the standards for screening the bases for experts