"Hybrid Witnesses" Are Not Entitled to "Hybrid Rules": The Federal Rules Delineating Lay and Expert Testimony and Governing Expert Disclosure Must Be Amended

By Chern, Alexander J. | The Review of Litigation, Spring 2019 | Go to article overview

"Hybrid Witnesses" Are Not Entitled to "Hybrid Rules": The Federal Rules Delineating Lay and Expert Testimony and Governing Expert Disclosure Must Be Amended


Chern, Alexander J., The Review of Litigation


ABSTRACT.333

INTRODUCTION.335

I.THE CURRENT LEGAL LANDSCAPE: TRANSPARENCY IN THEORY, A SHELL GAME IN PRACTICE.336

A. The FRE Allow Hybrid Witnesses to Give Both Lay Opinion and Expert Opinion Testimony.337

B. The FRE Were Amended to Clarify What Constitutes Expert Testimony and to Prevent Nondisclosure of Hybrid Witnesses.337

II.DETERMINING WHETHER A WITNESS IS TESTIFYING AS AN EXPERT UNDER THE FEDERAL RULES.339

A. Conflicting Approaches for Determining Whether a Treating Physician's Testimony is Expert Testimony Would be Resolved with the Proposed Rule.339

1. Current conflicting approaches to physician testimony. 339

2. Application of the proposed rule to physician testimony.341

B. Conflicting Approaches for Determining Whether a Law Enforcement Officer's Testimony is Expert Testimony Would be Resolved with the Proposed Rule.343

1. Current conflicting approaches to officer testimony. 343

2. Application of the proposed rule to officer testimony. 345

III.NONDISCLOSURE OF EXPERTS SHOULD OFTEN RESULT IN THE EXCLUSION OF THE EXPERT TESTIMONY IN BOTH CIVIL AND CRIMINAL TRIALS.348

A. Nondisclosure of Experts in Violation of Federal Rule of Civil Procedure Rule 26(a)(2)(A) Should, More Often Than Not, Result in the Exclusion of the Expert Testimony.349

B. The Nondisclosure of Experts in Violation of Federal Rule of Criminal Procedure 16(a)(1)(G) Should, More Often Than Not, Result in the Exclusion of the Expert Testimony.351

Conclusion.352

Introduction

Witnesses that offer both lay- and expert-opinion testimony have been dubbed "hybrid witnesses."1 The Federal Rules of Evidence ("FRE") contemplate hybrid witnesses, stating: "Certainly it is possible for the same witness to provide both lay and expert testimony in a single case."2 However, a hybrid witness must be disclosed as an expert by the party seeking to elicit the testimony, just like any other witness offering expert testimony. The FRE's acceptance of hybrid witnesses and the disclosure requirement presents two practical challenges for courts who must play a "gatekeeping role"3 in deciding what evidence the jury will hear: (1) when does a witness's testimony cross the line from lay testimony to expert testimony, causing them to become a hybrid witness; and (2) what happens when a hybrid witness was not disclosed as an expert by the party eliciting the testimony? This paper answers these two questions as follows: (1) a lay witness provides expert testimony and becomes a hybrid witness when the witness testifies while relying on specialized reasoning conferred by the witness's experience or training; and (2) failing to disclose a hybrid witness as an expert should result in the exclusion of the expert testimony unless the non-disclosing party can show good cause or rebut a presumption of prejudice.

I examine these two issues by first surveying the relevant rules and the current landscape of the FRE. Next, I begin by discussing the varied approaches taken by courts in determining when a witness is offering lay-opinion testimony or expert-opinion testimony. I discuss civil cases involving doctors' testimony, applying my proposed Rule701 amendment to resolve the conflicts between these cases and create uniformity under the FRE. And because the FRE are applied congruently in civil and criminal cases, 1 will then discuss criminal cases involving officers' testimony, once again applying my proposed rule to resolve the conflicts between these cases and create uniformity under the FRE. Finally, I suggest amendments to the Federal Rules of Civil Procedure and Federal Rules of Criminal Procedure to make the penalty of nondisclosure more daunting to litigants who utilize hybrid witnesses to frustrate the goals of expert-witness disclosure.

I. The Current Legal Landscape: Transparency in Theory, A Shell Game in Practice

The shell game is an illusion dating back to ancient Greece:4 a confidence trickster hides a ball under one of three cups and implores enchanted observers to guess which cup the ball is hidden under. …

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