EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

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Saturday, December 12, 2009

The Areas Of My Expertise: Fifth Circuit Reverses Expert Witness Ruling In Hurricane Katrina Related Appeal

Federal Rule of Evidence 701 provides 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.

As the Advisory Committee Note to the amendment to Rule 701 makes clear, Rule 701(c) was added in the wake of the Supreme Court's opinion in Daubert v. Merrdll Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), "to eliminate the risk that the reliability requirements set forth in Rule 702 will be evaded through the simple expedient of proffering an expert in lay witness clothing." The Advisory Committee Note goes on to indicate, however, that

most courts have permitted the owner or officer of a business to testify to the value or projected profits of the business, without the necessity of qualifying the witness as an accountant, appraiser, or similar expert. See, e.g., Lightning Lube, Inc. v. Witco Corp. 4 F.3d 1153 (3d Cir. 1993) (no abuse of discretion in permitting the plaintiff's owner to give lay opinion testimony as to damages, as it was based on his knowledge and participation in the day-to-day affairs of the business). Such opinion testimony is admitted not because of experience, training or specialized knowledge within the realm of an expert, but because of the particularized knowledge that the witness has by virtue of his or her position in the business. The amendment does not purport to change this analysis.

Despite the latter portion of the Note, in its recent opinion in Pendarvis v. American Bankers Ins. Co. of Florida, 2009 WL 4250686 (5th Cir. 2009), the Fifth Circuit found that a contractor could not testify as a lay witness about the estimated cost to repair a mobile home damaged by Hurricane Katrina.

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December 12, 2009 | Permalink | Comments (0) | TrackBack (0)

Friday, December 11, 2009

Allow Me To Demonstrate: California Case Reveals Lack Of Standards Governing Admissibility of Demonstrative Evidence

In contrast to testimonial or documentary evidence, demonstrative evidence is "principally used to illustrate or explain other testimonial, documentary or real proof, or judicially noticed fact. It is, in short, a visual (or other) sensory aid." A diagram of the scene of a crime drawn on a board by a percipient witness who is present at trial to testify would be classic demonstrative evidence. Whereas the diagram illustrates the witness' testimony, it should, technically speaking, add nothing further. In this way and despite its title as "evidence," demonstrative evidence is more of a visual aid than evidence per se because it merely illustrates or "demonstrate[s]" a witness' testimony. Jessica M. Silbey, Judges as Film Critics: New Approaches to Filmic Evidence, 37 U. Mich. J.L. Reform 493, 503 (2004).

Perhaps the most (in)famous example of demonstrative evidence was the failed glove experiment in the O.J. Simpson trial. But what standards governs the admissibility of demonstrative evidence? As the recent opinion of the Court of Appeal, Third District, California, in People v. Bonde, 2009 WL 4264324 (Cal.App. 3 Dist. 2009), makes clear, the answer is "not many." 

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December 11, 2009 | Permalink | Comments (0) | TrackBack (0)

Thursday, December 10, 2009

Conduit For Sale: Fourth Circuit Finds No Problem With Experts Relying Upon Testomonial Hearsay As Long As They Are Not Mere Conduits

Federal Rule of Evidence 703 provides that:

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 in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.

Meanwhile, the Confrontation Clause of the Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him." So, what should courts do when experts for the prosecution plan to provide opinion testimony based upon evidence that itself would violate the Confrontation Clause? That was the question addressed by the Fourth Circuit in its recent opinion in United States v. Johnson, 2009 WL 4348845 (4th Cir. 2009).

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December 10, 2009 | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 9, 2009

Wholesale Changes: Supreme Court Of California Disapproves Of Prior Precedent In Attorney-Client Ruling In Costco Appeal

California Evidence Code Section 954, California's attorney-client privilege, indicates in relevant part that

Subject to Section 912 and except as otherwise provided in this article, the client, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer if the privilege is claimed by:

(a) The holder of the privilege;

(b) A person who is authorized to claim the privilege by the holder of the privilege; or 

(c) The person who was the lawyer at the time of the confidential communication, but such person may not claim the privilege if there is no holder of the privilege in existence or if he is otherwise instructed by a person authorized to permit disclosure.

In Costco

In June 2000, Costco Wholesale Corporation..., which operates warehouse-style retail establishments throughout California, retained the law firm of Sheppard, Mullin, Richter & Hampton to provide legal advice regarding whether certain Costco warehouse managers in California were exempt from California's wage and overtime laws. Attorney Kelly Hensley, an expert in wage and hour law, undertook the assignment, ultimately producing for Costco [a] 22-page opinion letter....The letter followed conversations held by Hensley with two warehouse managers Costco had made available to her. Costco, the managers, and Hensley understood the communications between the managers and Hensley were, and would remain, confidential. Similarly, Costco and Hensley understood that Hensley's opinion letter was, and would remain confidential.

Subbsequently, Costco employees filed a class action against Costco, "claiming that from 1999 through 2001 Costco had misclassified some of its managers as 'exempt' employees and therefore had failed to pay them the overtime wages they were due as nonexempt employees." Those plaintiffs then sought to compel discovery of Hensley's opinion letter, and "Costco objected on the grounds the letter was subject to the attorney-client privilege and the attorney work product doctrine." The "[p]laintiffs disagreed, arguing both that the letter contained unprivileged matter and that Costco had placed the contents of the letter in issue, thereby waiving the privilege." Thereafter, "[t]he trial court, over Costco's objection, ordered a discovery referee to conduct an in camera review of Hensley's opinion letter to determine the merits of Costco's claims of attorney-client privilege and work product doctrine."

This ruling prompted Costco's appeal and led to the Supreme Court of California to reverse and disapprove of prior California precedent.

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December 9, 2009 | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 8, 2009

The Shrink(ing) Privilege, Take 2: New York Times Article Reports That Exceptions To Military Psychotherapist-Patient Privilege Are Hindering Therapy

Although it was ultimately rejected, Proposed Federal Rule of Evidence 504 set forth a psychotherapist- patient privilege, under which

A patient has a privilege refuse to disclose and to prevent any other person from disclosing confidential communications, made for the purposes of diagnosis or treatment of his mental or emotional condition, including drug addiction, among himself, his psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of the psychotherapist, including members of the patient's family.

Even though the proposed Rule was rejected, the Supreme Court later recognized the existence of a federal psychotherapist-patient privilege in its 1996 opinion in Jaffee v. Redmond, 518 U.S. 1 (1996). Because the Court left the scope of the privilege and its exceptions for later determination, courts vary in the number of exceptions that they carve out of the psychotherapist-patient privilege, with some widely adopted ones being the "crime-fraud" and "dangerous-patient" exceptions. See, e.g., Deirdre M.Smith,An Uncertain Privilege:  Implied Waiver and the Evisceration of the Psychotherapist-Patient Privilege in Federal Courts, 58 DePaul L. Rev. 79, 96 (2009). As a recent article in the New York Times notes, Military Rule of Evidence 513, the military psychotherapist-patient privilege, contains more exceptions than the federal psychotherapist-patient privilege, and, according to some, it is hindering therapy.

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December 8, 2009 | Permalink | Comments (1) | TrackBack (0)

Monday, December 7, 2009

You Can't Look In On One Way Eyes, Ohio: Ohio Opinion Reveals Differences Between Federal and Ohio Rule Of Evidence 607

Back in the common law days, courts applied the "voucher rule," under which the party calling a witness was deemed to have vouched for the witness' credibility and thus could not impeach its own witness' credibility. The voucher rule was abolished by Federal Rule of Evidence 607, which provides that "[t]he credibility of a witness may be attacked by any party, including the party calling the witness." Clearly, there is nothing in the Rule itself that limits parties in their ability to impeach their own witnesses, but judges have imposed limitations on such impeachment. For instance, in United States v.Webster, 734 F.2d 1191, 1192 (7th Cir. 1984), Judge Posner found that:

it would be an abuse of the rule, in a criminal case, for the prosecution to call a witness that it knew would not give it useful evidence, just so it could introduce hearsay evidence against the defendant in the hope that the jury would miss the subtle distinction between impeachment and substantive evidence-or, if it didn't miss it, would ignore it. The purpose would not be to impeach the witness but to put in hearsay as substantive evidence against the defendant, which Rule 607 does not contemplate or authorize. We thus agree that “impeachment by prior inconsistent statement may not be permitted where employed as a mere subterfuge to get before the jury evidence not otherwise admissible.”

In other words, the prosecution can't call a witness for the sole purpose of impeaching the witness through inadmissible hearsay, meaning that there usually shouldn't be a problem with the prosecution calling a witness for the purpose of impeaching the witness through statements that qualify as nonhearsay or meet an exception to the rule against hearsay. See, e.g., Margaret Meriwether Cordray, Evidence Rule 806 and the Problem of Impeaching the Nontestifying Declarant, 56 Ohio St. L.J. 495, 548 (1995). As the recent opinion of the Court of Appeals, Eighth District, in State v. Bell, 2009 WL 4406068 (Ohio App. 8 Dist. 2009), reveals, Ohio Rule of Evidence 607(A) itself makes this fact clear.

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December 7, 2009 | Permalink | Comments (0) | TrackBack (0)

Sunday, December 6, 2009

Excepted Exception: Appeal Reveals Limited Applicability Of Minnesota's Other Source Rape Shield Exception

Federal Rule of Evidence 412 is the federal rape shield rule, and Federal Rule of Evidence 412(b)(1)(A) contains the following exception to that rule:

In a criminal case, the following evidence is admissible, if otherwise admissible under these rules:

(A) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence.

At first blush, Minnesota Rule of Evidence 412(1)(B) appears to provide an identical exception to Minnesota's rape shield rule. It provides an exception to Minnesota's rape shield rule under the following circumstance:

When the prosecution’s case includes evidence of semen, pregnancy or disease at the time of the incident or, in the case of pregnancy, between the time of the incident and trial, evidence of specific instances of the victim’s previous sexual conduct, to show the source of the semen, pregnancy or disease.    

As is clear from the recent opinion of the Court of Appeals of Minnesota in State v. McBroom, 2009 WL 4251080 (Minn.App. 2009), there is an important distinction between the two exceptions.

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December 6, 2009 | Permalink | Comments (0) | TrackBack (0)