Academic journal article Defense Counsel Journal

Reviving the Dying Spirit of Rule 704: Put the Legal Conclusion Doctrine to Rest

Academic journal article Defense Counsel Journal

Reviving the Dying Spirit of Rule 704: Put the Legal Conclusion Doctrine to Rest

Article excerpt

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? …

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