A sea of confusion: expert legal testimony adrift in Florida.

• Author: Ciampa, Nancy C.
• Position: Trial Lawyers Forum

When addressing issues of domestic law, the general rule is that an expert's dispositive legal testimony is inadmissible because it invades 1) the province of the court to instruct the jury concerning legal standards, and 2) the competence of the jury to apply the facts to the instructed law. (1) However, there are exceptions--albeit ill-defined exceptions--to the recognized rule. This article focuses upon the ongoing confusion with regard to the nature and extent of permissible expert legal testimony.

Sections 90.403, 90.702, and 90.703 of the Florida Evidence Code, along with relevant precedent, form the basis for the rule. In addition, the Florida Supreme Court has recognized that "[t]he Federal Rules of Evidence may provide persuasive authority for interpreting the counterpart provisions of the Florida Evidence Code." (2) For this reason, Fed. R. Evid. 403, 702, and 704(a), their commentary, and germane federal case law provide additional insight.

The admissibility of expert legal opinions is ripe for clarification. While ostensibly applying the same rules, Florida appellate decisions often provide divergent guidance. Therefore, trial courts and practitioners are often left guessing as to the admissibility of expert testimony involving legal issues. One prospective solution is to read [section][section]90.403, 90.702, and 90.703 in pari materia, (3) and thereby permit explanatory expert testimony concerning legal issues when it will "assist the trier of fact in understanding the evidence or in determining a fact in issue," (4) and when it does not, merely tell the fact-finder which result to reach.

The trial court exercises broad authority concerning whether to admit expert testimony, and, on appeal, its decision will be reviewed for abuse of discretion. (5) However, this deferential standard does not support a blanket refusal to permit expert legal testimony when it 1) is consistent with the applicable law; 2) assists the fact-finder in understanding the issues to be decided; 3) is phrased in such a manner that it does not merely tell the fact-finder how to resolve the issue; and 4) is not unfairly prejudicial, needlessly cumulative, or otherwise confusing or misleading. (6) Some Florida decisions have essentially applied this suggested standard, but have not provided comprehensive reasoning. Accordingly, in an appropriate case, the Florida Supreme Court should resolve the issue by recognizing that this framework follows from [section][section]90.403, 90.702, and 90.703, and hold that this standard must be followed.

Abrogation of the "Ultimate Issue" Rule

The common law of evidence recognized the so-called "ultimate issue" rule, which prevented witnesses from expressing opinions concerning the ultimate issues involved in a case. (7) The rule's purported basis was that such testimony would usurp the jury's fact-finding function. (8) However, the rule was exceedingly difficult to apply, and there was no clear standard to separate "ultimate" and "nonultimate" issues. When possible, courts avoided applying the rule. (9)

In 1975, the Federal Rules of Evidence were promulgated, and Rule 704 abrogated the "ultimate issue" rule in federal courts. (10) The Florida Legislature followed suit in 1976 with its codification of the Florida Evidence Code, (11) which the Florida Supreme Court subsequently approved in 1979 "to the extent that [the code's sections] are procedural." (12) In particular, [section]90.703 of the code had the same effect as federal Rule 704(a): "Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it includes an ultimate issue to be decided by the trier of fact." (13)

Nevertheless, Rule 704(a) and [section]90.703 do not permit all opinion testimony concerning dispositive issues. For example, the relevant commentary to [section]90.703--which is highly similar to that accompanying Rule 704(a)--provides:

The abolition of the "ultimate issue" exclusionary rule does not admit all opinion testimony.... Section 90.702 limits expert opinion testimony to circumstances where the trier of fact will be assisted by such testimony in understanding the evidence or determining a fact in issue. Section 90.403 provides for exclusion of evidence for waste of time.

These sections ... afford ample assurance that the admission of opinions which would merely tell the jury what result to reach will be excluded. In addition, an opinion phrased in terms of inadequately explored legal criteria where there was not a sufficient foundation to show expertise in determining the legal effect of the facts could be excluded. The question, "Did T have capacity to make a will?" could be excluded, while the question, "Did T have sufficient mental capacity to know the nature and extent of his property and the natural objects of his bounty and to formulate a rational scheme of distribution?" would be allowed. (14)

In a relatively straightforward manner, this commentary explains that [section]90.703 has abrogated the common law "ultimate issue" rule, but (in combination with related code sections) still prohibits expert testimony that 1) merely tells the fact-finder how to decide an issue; 2) consists of inadequately explored legal criteria; or 3) wastes time. (15) The commentary also supports the following conversely stated principles. First, expert testimony addressing legal issues that does not simply tell the fact-finder how to decide an issue, but, instead, supplies probative information to help "understands the evidence or [to] determin[e] a fact in issue" may be permitted under [section][section]90.702 and 90.703. Second, expert testimony may also be permitted when it is based upon adequately explored legal criteria in which a sufficient foundation supports the witness' expertise to determine the potential legal effect of the facts. Of course, potential admissibility always assumes that the proffered testimony does not waste time, is not unfairly prejudicial, does not simply tell the fact-finder to reach a particular result, and is not needlessly cumulative or confusing. (16)

Conflicting Florida Precedent

Despite the commentary's relative clarity, Florida precedent provides conflicting, difficult-to-resolve guidance regarding the admissibility of this type of expert testimony. One line of decisions provides that experts may not testify concerning legal issues, (17) while, in contrast, another line essentially applies the rule-based framework suggested above. (18) Still another line of cases recognizes both approaches, but fails to reconcile the conflict. (19)

The incongruous nature of these Florida decisions is especially apparent when attempting to determine whether an expert may address the meaning of legal terms. For example, in more recent decisions, the Second District Court of Appeal has taken a hard line stance against this type of testimony: "Expert testimony is not admissible concerning a question of law. Statutory construction is a legal determination to be made by the trial judge, with the assistance of counsels' legal arguments, not by way of 'expert opinion.'" (20) In opposition to this explanation, the First District has recognized:

[S]ection [90.703] has been...