Wednesday, June 25, 2008
For The Dogs: 11th Circuit Approves Circumscription Of Lay Witness Testimony On Dog Kennel Operation in Workers' Comp Case
Although the opinion itself is a bit elliptical, the 11th Circuit's recent decision in United States v. Lavigne, 2008 WL 2487917 (11th Cir. 2008), provides a nice opportunity to review what I regard as the completely ineffectual 2000 amendment to Federal Rule of Evidence 701. While the opinion is not a model of clarity, here's what I believe transpired in Lavigne:
Barbara Lavigne applied for federal workers' compensation benefits on the ground that she was unable to work. The feds, however, discovered that she was operating a dog kennel and thus charged her with using fraud to obtain federal workers' compensation benefits. At trial, Lavigne called Vida Ellis and Deborah Howington, who presumably also owned or worked at dog kennels, to testify that her dog kennel operation constituted a hobby and not a business. While the district court allowed these witness to provide some testimony, it also circumscribed their testimony in some manner. I can't say in exactly what manner because the 11th Circuit did not describe their testimony to any degree in finding that the district court acted in within its discretion. But you know what? It really doesn't matter based upon the 2000 amendment to Federal Rule of Evidence 701, under which courts can basically do as they please.
Why do I say this? Well let's look at Federal Rule of Evidence 701. Before 2000, it read:
"If the witness is not testifying as an expert, the witness' 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 the witness' testimony or the determination of a fact in issue."
The problem with this iteration of the rule was that it allowed parties to sneak in expert witness testimony under this rule without the need to establish the witness as an expert witness. So, the decision was made to amend the rule so that lay witness testimony under Federal Rule of Evidence 701 cannot be "based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
That certainly sounds like an admirable goal, but let's look at the Advisory Committee's Note to the rule to see why trial courts can now basically do what they want without abusing their discretion. According to the Note, "[t]he amendment is not intended to affect the ''prototypical example(s) of the type of evidence contemplated by the adoption of Rule 701 relat(ing) to the appearance of persons or things, identity, the manner of conduct, competency of a person, degrees of light or darkness, sound, size, weight, distance, and an endless number of items that cannot be described factually in words apart from inferences."
Okay, that sounds reasonable enough, so how did the Committee apply it to some specific factual scenarios? Well, here are the two situations where the Committee drew permissible/impermissible dichotomies:
-(1) "[C]ourts have permitted lay witnesses to testify that a substance appeared to be a narcotic, so long as a foundation of familiarity with the substance is established....Such testimony is not based on specialized knowledge within the scope of Rule 702, but rather is based upon a layperson's personal knowledge. If, however, that witness were to describe how a narcotic was manufactured, or to describe the intricate workings of a narcotic distribution network, then the witness would have to qualify as an expert under Rule 702."
-(2) "The court in Brown noted that a lay witness with experience could testify that a substance appeared to be blood, but that a witness would have to qualify as an expert before he could testify that bruising around the eyes is indicative of skull trauma. That is the kind of distinction made by the amendment to this Rule."
Is anyone else confused by what exactly is meant by "the kind of distinction made by the amendment to the rule?" I sure am, and my sense is that courts are as well, which has basically resulted in courts doing as they please. To wit, readers might recall another 11th Circuit case, where I posted that the court approved the district court's admission of a DEA agent's testimony that the defendant was conducting a "heat run" as lay witness testimony even though other circuits had found that such testimony could only be rendered by an expert witness. I tend to side with the courts seeking expert qualification in a broader range of scenarios, but with the way that the rules are currently written, it's tough to assign fault to anyone.