Monday, October 17, 2011
Professor David H. Kaye at Penn State has posted Some clips from the Conrad Murray trial and asked whether testimony by experts that Dr. Murray's acts/omissions constituted "gross negligence" would have been ruled inadmissible if defense counsel objected to it. My conclusion: While the answer would be "yes" in many (most?) jurisdictions, the answer is "no" in California.Federal Rule of Evidence 704 states that
(a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.
(b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.
Most states (43 after Georgia's new Comprehensive Revised Evidence Code takes effect) have state rules of evidence modeled after the Federal Rules of Evidence (although not all of these states have counterparts to Rule 704(b), and under Rule 704, it seems clear that expert testimony that Dr. Murray acted (or failed to act) with "gross negligence is inadmissible. Why?
Rule 704 does allow testimony on ultimate issues to be decided by the trier of fact, but it does not allow testimony that amounts to a legal conclusion. For instance, check out this language from Shahald v. City of Detroit, 889 F.2d 1543, 1547-48 (6th Cir. 1989):
Federal Rule of Evidence 704 permits a witness to testify in the form of an opinion or inference to an "ultimate issue to be decided by the trier of fact." However, "[i]t is not for the witness to instruct the jury as to applicable principles of law, but for the judge."
Thus, under if Dr. Murray were being tried in most states, under Federal Rule of Evidence 704 or a state counterpart, an expert likely could not opine that Dr. Murray acted with "gross negligence."
California, however, is one of the few states that does not have an Evidence code modeled after the Federal Rules of Evidence. True, California does have California Evidence Code Section 805, which provides that
Testimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to decided by the trier of fact.
That said, look at the way that the Court of Appeal, Fourth District, Division 2, California, interpreted this language in Downer v. Bramet, 199 Cal.Rptr. 830 (Cal.App. 4 Dist. 1984):
While in many cases expert opinions that are genuinely needed may happen to embrace the ultimate issue of fact (e.g., a medical opinion whether a physician's actions constitute professional negligence), the calling of lawyers as “expert witnesses” to give opinions as to the application of the law to particular facts usurps the duty of the trial court to instruct the jury on the law as applicable to the facts, and results in no more than a modern day “trial by oath” in which the side producing the greater number of lawyers able to opine in their favor wins." (emphasis added).
Moreover, the 2nd District Court of Appeal (Los Angeles) has cited to the language a few times, most recently in Mora v. Big Lots Stores, Inc., 124 Cal.Rptr3d 535 (Cal.App. 2 Dist. 2011). Therefore, it seems like the testimony in the Murray trial was admissible (although I acknowledge that I haven't come across an opinion applying this reasoning in a criminal case).