Reviving the dying spirit of rule 704: put the legal conclusion doctrine to rest.

• Author: Cook, Kathy Jo
• Position: Expert testimony

Expert testimony should be admissible if the expert is qualified willing to follow the instructions, and the testimony is helpful

The use of experts in trials is no longer the exception but the norm. Technical Advisory Service for Attorneys Inc., the largest referral service for experts in the United States, lists 22,500 experts willing to testify on some 5,500 subjects, including ear print identification, unidentified flying objects and wigs. Expert testimony is big business, and experts are here to stay.

But when and to what can they testify? The Federal Rules of Evidence, attempting to resolve the common law confusion, set forth some basic premises:

* Experts can testify whenever it is helpful to the trier of fact. (Rule 702)

* Experts' testimony may be based on their own perceptions, the testimony of others, or the observations of certain others on whom experts usually rely. (Rule 703)

* When experts render opinions, their testimony is not objectionable simply because it goes to the ultimate issue the parties seek to resolve. (Rule 704(a))

Although these rules may seem simple, appellate briefs continue to stack up, and courts are handing down countless opinions on the admissibility of expert opinion testimony in cases in which the expert relates legal principles to factual bases.[1] For the most part, the decisions have only one thing in common: they track the language of the Federal Rules. Substantively, however, they are inconsistent.

There is a need to formulate a uniform and predictable approach to the admissibility of expert opinion testimony, an approach that relates the law to the facts. This article attempts to do that.

What History Teaches

In a 1901 article in the Harvard Law Review, Learned Hand looked at the history of expert testimony.[2] Before jury trials were fully developed, he wrote, expert testimony was used to settle disputes in at least two circumstances. First, someone, often the court, the mayor, the prosecutor or a private individual would call people whose experience was especially relevant to the facts of the specific case to serve as a "jury." Second, experts were often called when the court simply was unable to make a finding on its own. For example, in 1352, a court sought the advice of a group of London surgeons as to whether a wound was "mayhem."

In the early stages of the development of the jury trial system, it is unclear how much weight courts actually gave to the conclusions of these experts." By the 14th century, however, the practice of having "experts" decide factual issues was well established. Hand cites a 1620 case, Alsop v. Bowtrell, in which the conclusions of an expert were submitted to a true jury

Despite what appeared to be a growing trend toward admission of expert testimony, the practice began to meet with resistance as early as the 17th century.[3] By the 18th and 19th centuries, the so-called opinion rule became the subject of increasing scrutiny. Professor Wigmore suggests that this was caused, in part, by the promulgation of several "erroneous theories," one of which, the theory of the "ultimate issue," rapidly gained support among courts and commentators. In fact, it remains unsettled today. That theory sets forth the notion that an expert cannot offer testimony on the ultimate issue to be decided by the jury because to do so would "usurp" the function of the jury.[4]

Others have advanced even more stringent positions, one judge going so far as to say that "opinion, belief, deduction from fact, and such like are matters which belong to the jury,"[5] a rule that would have entirely eliminated expert testimony. At the opposite end of the spectrum, commentators like Mason Ladd have strongly supported the use of expert testimony in certain circumstances. He differentiated between expert testimony that is rooted in scientific analysis and that which is not.[6]

Examining the web of common law confusion, Wigmore promulgated a simple, singular principle: Does the proffered testimony help? He posited a three-part test to be used case by case:

[1] Is it a topic as to which the witness as such needs a special experience above the ordinary, and [2] if so, does he [the witness] have this? ... [and 3] Does the jury need any inference from the witness, either because of his skill or because his observed data cannot be adequately reproduced by him?[7]

The 1973 Federal Rules of Evidence seem to have been intended to eliminate the potpourri that grew up from the common law, to provide a sound basis for judicial decision making and to foster uniformity. It is worth noting that the Civil Rules Advisory Committee's Note to Rule 704 sets forth Wigmore's principle of "helpfulness" as the basic premise in determining whether to admit both lay and expert witness testimony. One might be tempted, therefore, to believe that the drafters were influenced by Wigmore's position.

Rather than formally adopting Wigmore's three-part test, however, the drafters promulgated a more general, seemingly straightforward approach in Rules 702-705:

Rule 702 Testimony by Experts

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Rule 703 Bases of Opinion Testimony by Experts

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.

Rule 704 Opinion on Ultimate Issue

(a) ... 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.

Rule 705 Disclosure of Facts or Data Underlying Expert Opinion

The expert may testify in terms of opinion or inference and give reasons therefor without first testifying to the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.

To meet the standard of relevance in Rule 401, opinions must be helpful to the trier of fact, and Rule 403 provides for the exclusion of evidence which wastes time. These provisions afford ample assurances against the admission of opinions which would merely tell the jury what result to reach, somewhat in the manner of the oath-helpers of an earlier day.

Rules 702 and 704 seem to recapitulate Wigmore's basic notion. Judges have not been swayed, however, by the relatively simplistic tenor of the Federal Rules. A brief review of the cases dispels any notion that the confusion that existed at common law has been resolved. Courts are particularly troubled by opinion testimony, and the common law theories that Wigmore criticized still live on, as courts struggle to differentiate between "facts," "opinions" and "legal" conclusions.

The Purported Standard

1. Admissibility

   1. General

      The threshold question in determining whether an expert's testimony is admissible under the Federal Rules is helpfulness. The court must first be convinced that the testimony may help the jury to "understand the evidence or determine a fact in issue." Second, the court must determine that the testimony will not unfairly prejudice the jury. Having passed these preliminary hurdles, however, does not ensure that the proffered testimony will be admissible. The Advisory Committee's Note to Rule 704 states one additional criterion: "opinions phrased in terms of inadequately explored legal criteria" are inadmissible.

      But what exactly is such an opinion? While the drafters of the rules failed to...