Tuesday, June 9, 2009
The (Non)Science Of Fear: Florida Court Finds Lay Witness Should Have Been Able To Testify That Defendant Appeared Afraid In Murder Appeal
Federal Rule of Evidence 701 indicates that
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, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
Florida's counterpart, Fla. Stat. Section 90.701, is a bit more restrictive. It indicates that
If a witness is not testifying as an expert, the witness's testimony about what he or she perceived may be in the form of inference and opinion when:
(1) The witness cannot readily, and with equal accuracy and adequacy, communicate what he or she has perceived to the trier of fact without testifying in terms of inferences or opinions and the witness's use of inferences or opinions will not mislead the trier of fact to the prejudice of the objecting party; and
(2) The opinions and inferences do not require a special knowledge, skill, experience, or training.
As the above language makes, clear, however, even in trials in Florida state courts, lay witnesses should be able to testify that a defendant appeared fearful before committing a violent act if that defendant is claiming self-defense at trial. And that was indeed the conclusion of the District Court of Appeal of Florida, Fourth District, in its recent opinion in Bryant v. State, 2009 WL 1531656 (Fla.App. 4 Dist. 2009).
In Bryant, Phillip Bryant was convicted of first degree murder based upon the following facts adduced at trial:
This crime arose out of a dispute between [Bryant] and [Swint]. Appellant Bryant approached the victim, Swint, and confronted him about some light bulbs. Bryant appeared upset. He pulled some brass knuckles from his pocket and swung at Swint. Swint backed up and reached into the back of his friend's truck for a flat bar, which he used to chase Bryant. Bryant went into his apartment and retrieved a gun. Upon exiting the apartment, Bryant aimed the gun at Swint and verbally threatened to kill him, but then aimed the gun down. As Swint approached him, Bryant discharged the weapon.
Unfortunately, the opinion in Bryant doesn't give us much more in the way of facts, but what we do know is that Bryant claimed that he was in fear of Swint because Swint was approaching him with and threatening to kill him. And, in order to corroborate this claim, defense counsel asked an eyewitness for the prosecution on cross-examination
whether she saw Bryant's face when he fired the gun. She replied, "It was fear, like he was afraid." The prosecutor moved to strike on the grounds that it was speculative. The court told the jury to disregard the testimony. The court ruled that the witness could describe what she observed, but she "cannot under any way say he was in fear."
After Bryant was convicted, he appealed, claiming, inter alia, that the eyewitness should have been able to testify that Bryant appeared to be afraid before shooting Swint. And the court agreed, finding that
[t]he trial court abused its discretion by preventing Byrd from testifying that Bryant appeared fearful, because the evidence was both admissible and relevant to his self-defense claim. Under the first prong of section 90.701, the description was necessary for Byrd to adequately communicate her observations, and the testimony would not have misled the jury. Under the second prong, no specialized training was required to recognize fear in someone's expression. Testimony that Bryant appeared fearful was relevant to demonstrate that he “actually believed that the danger was real.
The court then reversed because this error was not harmless, concluding that
Bryant testified that Swint had a crowbar in his hand earlier and continued to threaten to kill him as he approached Bryant who was holding the gun. While Bryant himself testified that he was in fear, the jury may have very well placed greater credence in an independent eyewitness. Furthermore, by refusing to permit Byrd to testify to observing a fearful expression, Byrd then had to use various other terms and settled on "angry." That constitutes an entirely different emotion than “fear” and one inconsistent with a claim of self-defense. In and of itself it may have swayed the jury on the self-defense claim.