© By the Honorable Charles R. Richey, United States District Judge for the District of Columbia. Frye Frye Daubert v. Merrell Dow Pharmaceuticals Inc. 104 403 611

I. INTRODUCTION

Experience has shown that opposite opinions of persons professing to be experts may be obtained to any amount; and it often occurs that not only many days, but even weeks, are consumed in cross-examinations, to test the skill or knowledge of such witnesses and the correctness of their opinions, wasting the time and wearying the patience of both court and jury, and perplexing, instead of elucidating, the questions involved in the issue.

Writing for the Fifth Circuit in 1986, Judge Patrick E. Higginbotham, himself a former trial judge on the front line of justice, issued a clarion call to contemporary trial jurists:

Our message to our able trial colleagues: it is time to take hold of expert testimony in federal trials.

Unfortunately for our judicial system, contemporary attorneys have not heeded the admonitions of Justice Grier and Judge Higginbotham. The use of "expert" testimony in both civil and criminal cases has increased substantially in my own experience over the years, first as a trial lawyer and, during more than the last twenty-three years, as a federal trial judge. "Expert" clearinghouses now exist that catalog and sell lists of the names of individuals willing to testify as "expert" witnesses. One of the oldest services, the Technical Advisory Service for Attorneys, lists over 10,000 experts in over 4,000 fields. Furthermore, "expert" referral services are readily available to litigators. WESTLAW, West Publishing's computerized legal database, now offers access to ExpertNet, a service which provides biographical information on medical malpractice and personal injury consultants, including whether the witnesses are available to testify for plaintiffs, defendants, or both. For $150, ExpertNet will provide you with the name, address and telephone number of any of its listed specialists. If your budget does not allow for a referral fee, just pick up any recent issue of the American Bar Association Journal. Nearly two thirds of the classified advertisements are generally placed by "expert" witnesses looking for work.

As my distinguished colleague, Judge Jack Weinstein of the Eastern District of New York, has observed:

An expert can be found to testify to the truth of almost any theory, no matter how frivolous.

How can the federal judiciary concomitantly allow relevant "expert" testimony in under the Federal Rules of Evidence, while also ensuring that the jury is not unduly impressed by the witness? I argue that to help cabin complications that often result from certifying a witness as an "expert" — such as the "aura of special reliability" which jurors tend to affix to this person's opinion — the Advisory Committee on the Federal Rules of Evidence should delete any reference to "expert witness" in the 700 series. Amending the rules in this manner would require such testimony to be labeled for what it is, namely "opinions." Additionally, trial judges should issue sua sponte instructions to juries that refer to the witness as an "opinion witness" and caution that they should give such testimony only such weight as they believe is appropriate. I strongly believe that jurors under these circumstances, without an immediate limiting instruction as to how opinion testimony should be evaluated, may then abdicate their fact-finding obligations in favor of adopting the opinion testimony of the socalled "expert."

II. THE USE OF THE TERM "EXPERT WITNESS" IN CIVIL AND CRIMINAL JURY TRIALS IS PREJUDICIAL, AND RULES 701-706 OF THE FEDERAL RULES OF EVIDENCE SHOULD BE AMENDED TO ALLOW ONLY THE TERM "OPINION WITNESS" TO BE USED.

The late Irving Younger, a very talented trial lawyer and former New York City trial judge, wrote an article for the Cleveland State Law Review in which he counselled young litigators on the benefit of laying the proper foundation for an "expert" witness. Mr. Younger explained:

[Y]ou say to the judge something like, "Your Honor, I ask the court to declare Dr. Elko an expert in the field of physiology." . . . And, of course, you've done it, so the judge says, "Yes." How does the jury hear it? The jury hears it as the judge certifying that your expert is an expert. The judge's authority begins to be associated with your expert's authority. And since the judge is the ultimate figure in the courtroom, its a nice phenomenon to have working for you.

With all due respect to Mr. Younger's sense of advocacy, the practice of labeling a person an "expert" must be forbidden. As a result of barring the use of the word "expert" in my courtroom, I ensure that no untoward affiliations unfold between opinion witnesses and the jury. Moreover, a judicial acknowledgement of the status of an "expert" as a witness, is fundamentally unfair and prejudicial, and may even violate Rule 1 of the Federal Rules of Civil Procedure and Rules 102, 402, 403, and possibly 611(a) of the Federal Rules of Evidence.

A. THE FEDERAL RULES OF EVIDENCE EXTEND GREATER LATITUDE TO THE TESTIMONY OF BOTH LAY AND "EXPERT" WITNESSES THAN DID THE COMMON LAW.

Historically, both lay and "expert" opinion evidence were viewed with skepticism by the courts. At common law, the general rule was that lay opinion testimony was not permitted. Witnesses were required to testify in terms of what they had seen, heard, felt, smelled, tasted, or done, and not in terms of what they had concluded. Mere opinions were considered unreliable bases for testimony. "Expert" evidence, on the other hand, while generally permitted, was also limited. Among other requirements, "expert" testimony at common law was limited to those topics that were "beyond common knowledge or experience," and was not permitted to incorporate the ultimate fact in question. Moreover, the bases for expert opinions were strictly circumscribed. With the Federal Rules of Evidence, the permissible content of "expert" evidence has been broadened and its bases expanded while the limitations on lay opinions have largely been retained.

The 700 series of the Federal Rules of Evidence envisions two circumstances in which opinion testimony can be given in the federal trial courts. Rule 701 retains the requirement that a lay witness must have first-hand knowledge for his or her opinion testimony to be admissible. In addition, lay opinion testimony must also be "helpful to a clear understanding of the witness' testimony or the determination of a fact in issue." Rule 702 allows the opinion testimony of a witness who has "knowledge, skill, experience, training, or education" where it would be "helpful to the jury."

However, Rule 703 poses additional problems with this same subject matter, because the "expert" can base his or her testimony on facts or data that have not been admitted into evidence. For example, an epidemiologist need not explain the basis behind his or her methodology to the jury if it is commonly accepted in the scientist's field. Rule 703, therefore, is a sieve through which matters other than the evidence provide a basis for a decision by the jury. In criminal cases, this testimony cannot be tested in a pre-trial hearing absent a specific rule, such as Rule 16 of the Federal Rules of Civil Procedure in civil cases. Thus, "expert" testimony opens a wide door which is sprung on the trial judge in criminal trials in a matter of seconds. A more complete examination of this problem will be left for another day, but meanwhile, Rule 703 should be tightened to require that facts and data relied upon which are not in evidence must at the very least be disclosed in advance of either a civil or a criminal jury trial. Perhaps Rule 16 of the Federal Rules of Criminal Procedure should be amended so as to permit a hearing before trial in order to test the reliability and the relevancy, as well as the probative value, of proposed opinion testimony — as trial judges can do in civil cases.

At present, however, Rule 703 provides a backdoor method of getting matters before the jury which are not otherwise admissible in evidence and thus can be contrary to the highest quality of justice.

B. JURIES, AS ILLUSTRATED BY EMPIRICAL RESEARCH, DEFER TOO MUCH TO EXPERT WITNESSES.

In the words of the Federal Rules of Evidence, witnesses testifying under Rule 701 are "lay witnesses," while those qualifying under Rule 702 are "experts," a word mentioned 17 times in the 700 series. However, in order to achieve a higher quality of justice, I have adopted a procedure whereby no one is permitted to be called an "expert," and when one is qualified to give an opinion, I then give my limiting instruction immediately after the foundation is laid for that witness.

One source of the term's prejudice is that the everyday meaning of the word "expert" causes juries to give more weight to such testimony than it may deserve merely because in the everyday meaning and use of the term, every human being's ears pick up on the word "expert," giving the "expert" witness more attention and credence than any other witness or evidence. In other words, to the jury an "expert" is just an unbridled authority figure, and as such he or she is more believable. Thus, in normal parlance, stating that someone is an "expert" not only speaks to his or her credentials, but also vouches for his or her credibility. This does not comport with fundamental fairness.

Under Rule 702 of the Federal Rules of Evidence, one who has specialized "knowledge, skill, experience, training, or education" is an expert.

The Advisory Committee which drafted Rule 702 made it clear in its Note that this Rule envisioned a broader scope of witnesses than "only experts in the strictest sense of the word, e.g., physicians, physicists, and architects." Rather, the Committee sought to extend "expert" status to "the large group sometimes called 'skilled' witnesses, such as bankers or landowners testifying to land values." Judge Weinstein has described a witness qualifying under Rule 702's lenient guidelines as a "quasi-expert." Thus under the Federal Rules of Evidence, in order to broaden the basis of opinion testimony, there is no requirement that an "expert" be an "authority," but most laypersons nevertheless give the opinion witness testimony greater weight than they give fact witnesses or documentary evidence. Rather, in the eyes of most courts today, the Rules rely on minimal qualifications and allow jurors to weigh the "expert's" qualifications in deciding whether to credit the testimony.

Given that juries are comprised of people from every walk of life, it should come as no surprise that jurors frequently attach more than the ordinary meaning to the word "expert" when the word is heard in the courtroom. Moreover, jurors do not pick up on the credibility dimension of the word "expert" when it is used in court.

In a recent study of jurors performed in Texas, researchers investigated the effect of "expert" testimony on juror deliberations. Twenty-four percent of the jurors surveyed listed the reputation of an expert as a "leading expert in the field" as a factor which made the "expert's" opinion credible. No one seriously questions the proposition that so-called "expert witnesses" can add an aura of authority to any asserted opinion. But it does not follow that courts and judges should give "expert" witnesses their imprimatur without the limitations expressed herein, the current Federal Rules of Evidence notwithstanding.

C. IN CIVIL CASES, BOTH THE DELETION OF THE TERM "EXPERT" FROM THE FEDERAL RULES OF EVIDENCE AND LIMITING INSTRUCTIONS WILL HELP PREVENT "EXPERT" TESTIMONY FROM BECOMING UNDULY PREJUDICIAL BEFORE JURIES.

1. The now-overruled Frye test was easy for trial judges, most of whom were not well-versed in science, to apply.

Prior to the Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., the most used, and most famous, method for screening the reliability of scientific evidence was the now-abandoned Frye test, first articulated in 1923 by the United States Court of Appeals for the District of Columbia Circuit.

The Frye test applied generally to applications of scientific evidence, and required that the theory behind the evidence,

be sufficiently established to have gained general acceptance in the particular field in which it belongs.

Requiring general acceptance in the relevant scientific community ensured that the individuals giving opinions were the most qualified to determine the reliability and validity of new scientific techniques. Additionally, tionally, by creating a higher threshold for the admission of scientific evidence, Frye facilitated district courts' efforts to determine the admissibility of scientific evidence. Many trial judges possess neither the time or the scientific or technical expertise to delve into the vagaries of scientific methodologies.

Under Frye, the inquiry was very simple. Is the evidence generally accepted by the scientific community?

2. Even under the Frye test, however, suspect scientific evidence was routinely admitted by trial judges.

Along with the increased quantity of "expert" testimony during the Frye era, as detailed in the Introduction, there was a concomitant decrease in its overall quality.

Reported cases contain numerous examples of proffered "experts" who later were judged to be "crackpots" or who gave opinions that were "illogical, inconsistent, . . . incomprehensible, and lack any basis in fact." Professor Donald Elliott of the Yale Law School summarized this judicial state of affairs:

The law extends equal dignity to the opinions of charlatans and Nobel Prize winners with only a lay jury to distinguish between the two.

3. Under Daubert v. Merrell Dow Pharmaceuticals, Inc., it is even more likely that trial judges will admit questionable scientific evidence.

The Supreme Court in Daubert, however, makes the once straightforward Frye inquiry more complex. A unanimous Supreme Court, through Justice Blackmun, held that the Frye test was superseded by the adoption of the Federal Rules of Evidence in 1975. In adopting the rules, the Court held, Congress intended to liberalize the admission of scientific evidence, allowing novel approaches that perhaps had been eschewed by the shibboleths of a given field to be admitted into evidence under Rule 702.

Under Daubert, the district judge must determine if the scientific evidence is (1) relevant and (2) reliable. The reliability inquiry, however, is problematic for the judge, who must assess the scientific methodology's reliability pursuant to Rule 104(a). Seven justices, Chief Justice Rehnquist and Justice Stevens dissenting, endorsed a list of non-exclusive questions that district judges should ask of a given methodology. First, can it be tested through the scientific method? Second, has "the theory or technique been subjected to peer review and publication"? Third, what is the known or potential rate of error of the theory? Fourth, a district judge could maintain a vestige of the Frye test by asking whether the methodology has been generally accepted. The majority emphasized that the approach should be "flexible," focusing on "principles and methodology, not on the conclusions they generate."

While the Court was correct in holding that Frye has been superseded by Rule 702, its advice on how to determine if a technique is reliable is unduly problematic. First, problems might arise if a judge determines that the technique meets two parts of the Daubert test, but fails the other two. Is it then admissible? Second, how dispositive should each of the various parts be? Is it more important that a technique be peer reviewed or that it have a nominal rate of error?

In view of the fact that the Daubert test is amorphous, commentators suggest that it is likely that a technique's acceptance will depend more on which district judge is assigned at random to a case than any other factor. Sensing that more "junk science" will be admitted under Daubert, I believe that my proposal to amend the Federal Rules of Evidence and provide curative jury instructions becomes even more important.

4. There are methods to both manage "expert" testimony and minimize its prejudicial effect at civil trials, such as pre-trial hearings pursuant to Rules 16 and 42(a) of the Federal Rules of Civil Procedure and Rule 104(a) of the Federal Rules of Evidence.

Even with the Supreme Court's ambiguous guidelines, district judges can take a number of remedial measures to prevent juries from being unduly influenced by expert testimony. First, under Rule 104(a), judges, as evidentiary gatekeepers, can hold in limine hearings to determine the admissibility of opinion testimony. Second, pursuant to Rule 706 of the Federal Rules of Evidence, a judge can appoint an "expert" to parse through scientific evidence, making conclusions about it and perhaps even testifying before the court. Although few judges have chosen to avail themselves of this option, it remains available for those who feel that the Supreme Court has given them an inadequate amount of guidance in Daubert. Third, Rule 42(a) of the Federal Rules of Civil Procedure gives judges the authority to "make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay." Pursuant to this rule, judges can issue orders and conduct pre-trial hearings, as I have, to help mitigate the prejudicial effect of "expert" testimony. Fourth, judges can hold pre-trial hearings pursuant to Rule 16(c)(4) to determine the admissibility of opinion testimony. Fifth, some courts have decided to flatly exclude "expert" opinion evidence regarding witness credibility, and the accuracy of eyewitness testimony, two areas historically considered well within the competence of an unaided jury. Other courts, concerned with the "bootstrapping" effect of "expert" credentials on witness credibility, employ more rigorous cautionary instructions when an "expert" witness also testifies as a fact witness. Thus, in addition to my proposal, district judges have ample weapons in their arsenal to wage battle against the prejudicial effect of "expert" testimony in civil cases.

D. IN CRIMINAL CASES, BOTH THE DELETION OF THE TERM "EXPERT" FROM THE FEDERAL RULES OF EVIDENCE AND LIMITING INSTRUCTIONS WILL HELP PREVENT "EXPERT" TESTIMONY FROM BECOMING UNDULY PREJUDICIAL BEFORE JURIES.

As the nation's drug dealers and organized crime syndicates continue to develop increasingly sophisticated measures to evade law enforcement, the government is forced to use "expert" witnesses to testify against those accused of crimes at trial. Otherwise, it is extremely difficult to convince a lay juror that, for example, seemingly harmless jargon is in reality a sophisticated code that dealers use to hawk their insidious wares.

In addition to employing the standard code decipherer, the government uses "expert" witnesses in a number of other ways. First, the government often uses law enforcement officers, who have participated in an operation, to testify as "experts" about certain aspects of the enforcement operation. Second, it often employs "expert" witnesses to assemble criminal profiles in an effort to classify a defendant's actions as being criminal in nature. Third, the government also uses "expert" witnesses to testify whether a particular statute has been violated.

As previously stated with respect to our civil jurisprudence, Rules 102, 402, 403, and possibly 611(a) of the Federal Rules of Evidence — in addition to Rule 2 of the Federal Rules of Criminal Procedure — are applicable to criminal cases, and should require limiting or cautionary instructions with respect to the unfair and prejudicial effect of "expert testimony" and provide a basis for labeling such as "opinion testimony."

In view of the above, given the government's frequent use of these "experts" at trial, and the dangers attendant to the jury's natural proclivity to accept their testimony, trial judges should permit these witnesses to offer opinions only where the jury is given a limiting and curative instruction concerning such testimony. Nothing less than the notions of due process and fundamental fairness in criminal trials command this.

E. IN CRIMINAL CASES, EVEN THOUGH RULE 16 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE, UNLIKE RULE 16 OF THE FEDERAL RULES OF CIVIL PROCEDURE, DOES NOT AUTHORIZE PRE-TRIAL CONFERENCES, MOTIONS IN LIMINE SHOULD BE ENCOURAGED AND PRE-TRIAL CONFERENCES PERMITTED WITH REGARD TO OPINION TESTIMONY SO AS TO ELIMINATE SURPRISE AND PREJUDICE.

As will be discussed infra, the trial courts have not only inherent power, but also power under Rule 611(a) of the Federal Rules of Evidence to control the manner and mode of the examination of witnesses and under the Rule 401/403 balancing test to avoid prejudice. Even in the absence of an amendment to Rule 16 requiring or permitting in criminal cases a pre-trial conference under the criminal rules, Rule 16(a)(1)(E) and 16(b)(1)(E) regarding "expert" witnesses provide for the disclosure in advance of trial of the opinions of witnesses, the bases and reasons therefore, and the witnesses' qualifications. In this technological and sophisticated age where opinion testimony is to be used, both the bench and bar should insist on the bases and reasons for opinion testimony in advance of trial — in addition to the witness' qualifications. This will promote a greater degree of fairness and enhance cross examination by giving counsel an opportunity to more intelligently prepare cross examination in advance.

At the same time, as indicated throughout this article, such testimony when offered should be labeled opinion testimony so as to eliminate, by use of my Order and limiting instruction as set forth as Exhibits B and C hereto, any potential bias or prejudice.

III. BECAUSE OF THE PREJUDICIAL EFFECT OF THE WORD "EXPERT" ON JURORS, TRIAL COURTS HAVE THE POWER AND THE DUTY TO BAR ITS USE IN THEIR COURTROOMS. A. FEDERAL TRIAL JUDGES CAN ISSUE LIMITING INSTRUCTIONS IN ACCORDANCE WITH THEIR INHERENT POWER TO MANAGE COURTROOM PROCEEDINGS.

It is uncontroverted that courts have the inherent authority to implement procedures reasonably necessary to the administration of justice. As the Supreme Court recently noted:

It has long been understood that certain implied powers must necessarily result to our Courts of justice from their institution, powers which cannot be dispensed within a Court, because they are necessary to the exercise of all others. For this reason, Courts of justice are universally acknowledged to be vested, by their very creation, with power to impose silence, respect, and decorum, in their presence, and submission to their lawful mandates. These powers are governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.

Powers which are inherent in courts include the ability to control the conduct of attorneys appearing before it, to punish for contempt, to assess attorneys' fees, to regulate admission to the bar, to vacate judgments that were perpetuated by fraud, to dismiss cases on the grounds of forum non conveniens, and to dismiss cases sua sponte for want of prosecution. The general rule of recognition is that if the power is "necessary to the exercise of all other [powers]," then it is inherent in the court. Thus, courts may invoke their inherent powers to aid in the exercise of their jurisdiction, the administration of justice, and the preservation of their independence and integrity. Given the prejudicial effect of the term "expert," courts have the inherent power in their pursuit of justice and fairness to bar its use.

B. JUDGES CAN ALSO LIMIT THE USE OF THE WORD "EXPERT" PURSUANT TO RULE 403 OF THE FEDERAL RULES OF EVIDENCE.

Moreover, to the extent that the term "expert" is used in open court, Rule 403 of the Federal Rules of Evidence supports its exclusion. Rule 403 provides that otherwise relevant evidence, such as the fact that a witness is considered to be an "expert," may be excluded if its probative value is substantially outweighed by the danger of misleading or prejudicing the jury. Under the Rule 401/403 calculation, labelling an opinion witness an "expert" has no probative value as to the witness' qualifications because the qualifications have generally, absent a stipulation, already been presented to the jury. Insofar as "expert" is descriptive of a witness' credentials, use of the term merely duplicates factual evidence already in foundation for the opinion testimony. However, the term "expert" also has prejudicial force and effect upon a jury with regard to credibility. Jurors have indicated that their tendency to believe an opinion witness is affected by the witness' "expert" reputation.

Thus, under a standard Rule 401/403 balancing test, as well as under our inherent power, judges may and should properly prohibit the use of the term "expert" in their courts.

C. RULE 611(a) OF THE FEDERAL RULES OF EVIDENCE ALSO GIVES JUDGES DISCRETION TO LABEL "EXPERT" WITNESSES AS "OPINION" WITNESSES.

In addition, Rule 611(a) of the Federal Rules of Evidence gives courts additional authority to prohibit the use of the word "expert" in the courtroom. In defense of the jury's right to decide factual issues, which I support, it must be understood that courts have wide latitude under Rule 611(a) to "exercise reasonable control over the mode and order of interrogating witnesses so as to . . . make the interrogation and presentation effective for the ascertainment of the truth." Such control certainly includes the right to limit the use of prejudicial and unreliable witness descriptions such as the term "expert."

D. THE BROAD AMBIT OF RULE 102 GIVES JUDGES GREAT DISCRETION TO REFUSE TO ADMIT "EXPERT" TESTIMONY, INCLUDING THE AUTHORITY TO PROHIBIT USE OF THE WORD "EXPERT" ALTOGETHER.

Moreover, Rule 102 directs that the Rules of Evidence be construed "to the end that the truth may be ascertained and proceedings justly determined." I will leave for another day my objection to the word "truth," as I think judges and juries are more precisely engaged in a "fact finding" mission rather than a "quest for truth" which is too ambiguous. The word "truth" is also, in the eyes of many, associated with religion or philosophy. In other words, the singular purpose of the litigation process is the ascertainment of what the facts are based upon the evidence only, rather than some amorphous term such as "truth." At a minimum, the rule requires that evidence that is more prejudicial than probative be excluded by the trial court. For the reasons already presented in this article, the use of the term "expert" is highly prejudicial and adds little to the jury's knowledge. Thus, under Rule 102's demand of fairness, federal courts should bar the use of the word "expert" in a jury's presence.

E. IT MAY BE INAPPROPRIATE JUDICIAL COMMENT, MOREOVER, FOR A COURT TO LABEL A WITNESS AN "EXPERT."

Given the credibility dimension of the word "expert," restrictions on a judge's right to comment on evidence support my rationale for precluding the word "expert" from the courtroom. In Quercia v. United States, the Supreme Court outlined the inherent limitations on the judicial privilege to comment on facts. Chief Justice Hughes stated:

In commenting upon testimony [the trial judge] may not assume the role of witness. He may analyze and dissect the evidence, but may not distort it or add to . . . The influence of the trial judge on the jury is necessarily and properly of great weight and his lightest word or intimation is received with deference, and may prove controlling.

Moreover, there is no question that a judicial declaration that a witness is an "expert" can be an inappropriate judicial comment. It is well-settled that it is improper to inform the jury of certain preliminary findings of fact. For example, although sometimes harmless, it is error for a judge to inform the jury that he has made a preliminary finding of a conspiracy sufficient to admit a statement under the co-conspirator exception of Rule 801(d)(2)(E) that would otherwise be hearsay. As the Sixth Circuit has explained:

[The trial judge] should refrain from advising the jury of his findings that the government had satisfactorily proved the conspiracy. The judge should not describe to the jury the government's burden of proof on the preliminary question. Such an instruction can serve only to alert the jury that the judge has determined that conspiracy involving the defendant has been proven by a preponderance of the evidence. This may adversely affect the defendant's right to a trial by jury. The Judge's opinion is likely to influence strongly the opinion of the individual jurors when they come to consider their verdict and judge the credibility of witnesses.

The above quotation above lends support to my obviously strong view that a trial judge should NOT inform a jury that he believes a proffered witness to be an "expert."

IV. TRIAL COURTS MUST EMPHASIZE BY WAY OF LIMITING INSTRUCTIONS THAT IT IS SOLELY WITHIN THE PROVINCE OF THE JURY TO ACCEPT OR REJECT OPINION TESTIMONY AND TO GIVE IT SUCH WEIGHT AS THEY DEEM APPROPRIATE IN LIGHT OF THE EVIDENCE PRESENTED.

In addition to refusing to acknowledge the "expert" status of a witness testifying pursuant to the 700 series of the Federal Rules of Evidence, I am always careful to emphasize to the jury that they are not bound by opinion evidence and may accept or reject it in whole or in part. Before a jury retires to deliberate, I give a limiting instruction in every case in which an "expert" witness has testified.

My charge has been explicitly praised by the distinguished Professor Stephen A. Saltzburg, a member of the Advisory Committee on Criminal Rules and a liaison member of the Advisory Committee on the Rules of Evidence. He writes:

[B]y excluding the word "expert" from the trial, Judge Richey has assured that lawyers do not use it in ways that invite jurors to assume that the judge has anointed any witness with the title "expert."

A. HISTORICALLY, JURIES HAVE BEEN GRANTED WIDE DISCRETION TO JUDGE THE VERACITY OF "EXPERT" TESTIMONY.

There is no question that it is within the prerogative of the jury to believe or disbelieve "expert" testimony.

In 1878, the Supreme Court, through Justice Clifford, held "it is for the jury to decide whether any, and if any what, weight is to be given to the [expert] testimony."

In Obold v. Obold, which involved a dispute over testamentary capacity, the D.C. Circuit upheld a jury instruction similar to my own, which charged the jury to take into account "the professional standing and experience of an 'expert' witness." The court also rejected another instruction which would have informed the jury of its right to believe the proffered "expert" over all other witnesses, including two eyewitnesses to the contested will's execution. Although allowing that this rejected instruction would have been a correct statement of the law, the court said it preferred the trial court's formulation:

Expert opinions are controlling only insofar as found to be reasonable, and their weight is for the trier of facts to determine. No rule of law compels him to give controlling influence to opinions of experts or surrender his judgment.

B. MANY JUDGES AND COMMENTATORS BELIEVE THAT JURIES SHOULD ROUTINELY BE GIVEN SPECIAL CHARGES ABOUT "EXPERT" TESTIMONY.

In the District of Columbia, it is considered "correct procedure" to instruct and advise the jury of their right to judge the credibility of "expert" witnesses. Courts and commentators agree, and most model jury instructions support my recommendation that a similar jury instruction be used whenever "expert" testimony has been utilized. Although no federal court has yet ruled that it is error to fail to give such an instruction sua sponte, in my view, it is the better practice to incorporate such a charge routinely. Indeed, failure to give the charge may be so prejudicial as to constitute grounds for reversal.

The D.C. Circuit has outlined the considerations which should be taken into account in formulating jury instructions on credibility. In United States v. Lee, the court stated:

The instructions that a judge should give the jury on credibility call for a sound exercise of discretion. No universal formula can be stated, except perhaps that the judge should provide a fair and balanced perspective as context for deliberation. The baseline of doctrine sustains a judge who confines his credibility instructions to generalized comment on the significance of a witness's interest. Some cases may need more, but there is always the dangers of oversteering and undue intrusion. Every time a judge is asked to caution the jury specially concerning a certain type of witness or witness's interest, he must consider whether in the context of the trial he is not in effect singling out a witness or class in such a way as to give undue weight to one party or the other.

A special opinion witness charge is desirable because it alerts the jury to its role in determining opinion witness credibility. Moreover, where both sides have presented "expert" testimony on a particular point, the opinion witness instruction given immediately before such witness is allowed to testify straightforwardly informs the jury that it may choose among the various opinions offered. Like the general credibility instruction, which informs the jury that it is the sole judge of witness credibility and that it may consider any matter bearing on such testimony, including any interest in the case, the opinion witness instruction merely restates the law. Whether or not an opinion witness's testimony is credible is a matter ENTIRELY for the jury.

Moreover, my general instruction on the credibility of witnesses, outlined on page 542, is harmless in comparison to what others might give. That "expert" witnesses are hired for their conclusions and paid for their testimony may warrant a stronger and more fact-specific instruction. However, courts regularly give jury instructions informing jurors of their right to take into consideration a particular witness's bias or personal interest in testifying. It is the rule in many courts that where a witness is a paid government informant who has been promised future consideration contingent on the outcome of the criminal trial, the jury must be specially instructed to weigh such witness's testimony with care. Similarly, courts give special instructions to the jury where there has been uncorroborated accomplice testimony. My instruction about opinion testimony is significantly more innocuous; it refers to a class of witnesses, which includes laypersons, and merely informs the jurors of their right to believe or disbelieve the opinion testimony and assign such weight to it as the jury believes is appropriate and proper. It is the least that should be required.

V. CONCLUSION

The wide berth given "expert" opinion testimony under both the Federal Rules of Evidence and Procedure warrants added precautions by the Courts to ensure that juries are not overwhelmed by the so-called "experts," so as to deprive them of their right to determine the facts of a case based upon all of the evidence. Banning the use of the term "expert" in open court and mandatory jury instructions regarding the jury's right to credit or not credit the testimony of opinion witnesses ensures that trial courts do not inadvertently put their stamp of authority on "expert" testimony. Given the state of "expert" testimony in our society today, it is a matter of fundamental fairness and, increasingly, the duty of the courts and counsel to neutralize the impact and possible prejudicial weight given to such opinions. Moreover, these specialized instructions should explicitly be enshrined in the Federal Rules of Evidence by deleting any reference to the word "expert." The Advisory Committee, the Supreme Court, and the Congress should act with all "deliberate speed" to see that this is done so as to achieve a higher quality of justice, particularly in light of the liberally relaxed Daubert standard.

In addition, Rule 16 of the Federal Rules of Criminal Procedure should be amended to authorize and permit pre-trial conferences at least with respect to "expert" testimony that the government intends to use in its case in chief at trial. While disclosure of such testimony is now required upon request pursuant to Rule 16(a)(1)(E) — and this should be encouraged — the Criminal Rules should also be amended so as to enable trial judges to better manage criminal cases, eliminate the possibility of surprise, and enhance the quality of cross-examination and justice. Judges should also give the limiting instruction whenever such testimony is offered during criminal trials, as in civil cases, as set forth in Exhibits B and C.