Sunday, March 14, 2010
What's Your Damage?: Fifth Circuit Finds Lay Witness Can't Offer Opinion Testimony On Organic Brain Damage
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 Rule intimates, when testimony is based on scientific, technical, or other specialized knowledge, it can only be offered by an expert witness pursuant to Federal Rule of Evidence 702. And, under these Rules, the Fifth Circuit could make an easy ruling in its recent opinion in United States v. York, 2010 780166 (5th Cir. 2010): A lay witness cannot opine that his son suffers from organic brain damage.
In York, Timothy Lee York was convicted of arson, carrying a destructive device in relation to a crime of violence, and possession of a firearm not registered in the National Firearms Registration and Transfer Record. These convictions stemmed out of an incident in which York allegedly used a Molotov cocktail to start a fire at the Cooke County Courthouse in Gainesville, Texas.
As part of his defense, York sought to have his father testify about complications with York's birth leading his father to "'suspect that Mr. York suffered organic brain damage." The district court deemed this testimony irrelevant, and, on York subsequent appeal, the Fifth Circuit agreed that this testimony was irrelevant. Moreover, the Fifth Circuit found that
Even if proper evidence that York had suffered organic brain damage were relevant, the error was harmless because the defendant merely offered inadmissible opinion....The rules forbid lay opinions based on scientific, technical, or other specialized knowledge within the scope of Rule 702....The drafters added this language to Rule 701 to prevent parties from offering expert testimony as lay opinion and circumventing discovery rules....The distinction between lay and expert testimony is that lay testimony results from a process of reasoning familiar in everyday life, whereas expert testimony results from a process of reasoning that can only be mastered by specialists in the field....York's father's testimony seems to be speculative medical causation testimony. Testimony about York's birth and any brain damage caused by his birth requires specialized medical knowledge. It is not the type of opinion that one could reach as a process of everyday reasoning.