EvidenceProf Blog

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

Wednesday, July 20, 2011

Polly Wants A New Trial: DDC Seemingly Errs Badly In Finding Harmless Error In Connection With Rule 703 Ruling

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.

So, let's assume that the plaintiff's expert relies upon an inadmissible report to offer opinion testimony at trial. And, assume that the court improperly allows the plaintiff to "parrot" the report's conclusions to the jury. Also, assume that the report is really good. So good, in fact, that the defendant's expert endorses the report. That has to be reversible error, right? Not according to the recent opinion of the United States District Court for the District of Columbia in Huthnance v. District of Columbia, 2011 WL 2836363 (D.D.C. 2011).

In Huthnance

Officers Acebal and Antonio arrested [Lindsay] Huthnance on November 16, 2005 for disorderly conduct, loud and boisterous. Huthnance claims that she was a victim of "contempt of cop," meaning the officers didn't have probable cause to believe she had committed any crime and instead arrested her merely because she had criticized the police. After her arrest, officers transported her to the station and locked her in a cell while her arrest was processed. She resolved her arrest through the District's "post and forfeiture" procedure, meaning she posted $25 collateral and was released from custody several hours later. After posting and forfeiting, no criminal charges were ever brought against Huthnance, so no one ever reviewed her arrest. As a result of her arrest, Huthnance spent several hours in jail, paid $25 to secure her release, claims she experienced mental anguish, fear, and humiliation, and was saddled with a permanent arrest record she claims she didn't deserve.

Huthnance filed suit against Officers Acebal and Antonio and the district of Columbia asserting claims of false imprisonment, intentional infliction of emotional distress, assault and battery, violations of her constitutional First, Fourth, Fifth, and Eighth Amendment rights, and violations of the Code of the District of Columbia, arising from her arrest and detention on November 15th and 16th, 2005. 

At trial, the plaintiff's expert witness offered opinion testimony that the District was on constructive notice of problems with arrests in part based upon an inadmissible "study performed by Dr. James Ginger that found over 34% of disorderly conduct arrest reports from the first six months of 2005 failed to state probable cause for arrest." Thereafter, the defendant's expert endorsed Dr. Ginger's report.

After the jury found for Huthance, defense counsel then timely renewed a prior Rule 50 motion and moved in the alternative for a new trial and remittitur. According to defense counsel, the district court improperly allowed the plaintiff's expert to "parrot" Dr. Ginger's conclusions such that it was as if the plaintiff were admitting the report into evidence under Federal Rule of Evidence 703. But according to the United States District Court for the District of Columbia,

it is abundantly clear that—in this case—even if allowing reliance on Ginger's report was error, it was harmless. Federal Rule of Evidence 703 permits a testifying expert to rely on reports prepared by others for the specific purpose of providing a basis for the testifying expert's opinions as long as they are "of a type reasonably relied upon by experts in the particular field." Both experts testified that Ginger's report is of a type reasonably relied upon by experts in the field....Moreover, to the extent that the testifying experts "parroted" Ginger's conclusions, nothing prevented counsel from challenging those conclusions by cross-examining the parroting expert witness. True, that would have been difficult for defendants in light of the fact that their own expert endorsed Dr. Ginger's report, but that only shows that the defendants weren't at all prejudiced by the inclusion of this testimony. In short, the parties' reliance on the Ginger report simply doesn't require a new trial.

What!? Assume that a defendant is charged with murder, and the prosecution has a DNA report or fingerprint report prepared by a non-testifying expert, making the report inadmissible. And assume that a prosecution expert offers opinion testimony that the defendant killed the victim and improperly "parrots" the conclusions of the analyst who prepared the report to the jury. Finally, assume that there's nothing facially wrong with the report. Everything about it looks kosher. So, the defense expert adopts the report. What else can he do? Defense counsel has not been able to cross-examine the analyst who prepared the report regarding his credentials or how the report was created.

According to the United States District Court for the District of Columbia in both this hypothetical case and Huthnance, the "parroting" of such a report does not prejudice the defendant at all because the defense expert adopts the report. But doesn't it prove the exact opposite? Doesn't it prove that the report was (extremely) prejudicial because, without the analyst to cross-examine, defense counsel could not attack the reliability/validity of the report? I'm baffled by the court's conclusion.



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