SERIES 300 EVIDENCE
F 332 Expert Witness Testimony
TABLE OF CONTENTS
F 332 Inst 1 Jurors Not Required To “Decide” Truth And Accuracy Of Information Relied Upon By Expert
F 332 Inst 2 Cautionary Instruction Regarding Juror Use Of Common Sense And Experience To Trump Expert Opinion
F 332 Inst 3 (a & b) Court-Appointed Expert Should Be Treated The Same As Any Other
F 332 Inst 4 Expert Witness: Opinion Only As Good As Foundational Facts
F 332 Inst 5 Consideration Of Reasonableness Of Reliance On Information From Others
F 332 Inst 6 Consideration Of Expert’s Qualifications
F 332 Inst 7 (a-d) Deletion Of The Term “Expert” From Expert Witness Instruction
F 332 Inst 8 Juror Claim Of Personal Expertise During Deliberations
F 332 Inst 9 Expert Witness: Weighing One Expert Against Another
F 332 Inst 10 Opinion Testimony: Inadmissible As To Definition Of The Crime Or Defendant’s Guilt Or Innocence
F 332 Inst 11 Failure Of Defendant To Call Expert Witness
F 332 Inst 12 Explanatory Instruction Regarding Receipt Of Monetary Fee By Expert Witness
F 332 Inst 13 Expert Testimony: Not Admissible Regarding Reasonable Person Standard (Objective Reasonableness)
F 332 Inst 14 Expert Opinion: Availability Of Limiting Instruction To Counter EC 352 Objection To Admission Of Expert Testimony
F 332 Inst 15 Hypothetical Questions: Improperly Placing Burden On Defendant To Prove Hypotheticals
Return to Series 300 Table of Contents.
F 332 Inst 1 Jurors Not Required To “Decide” Truth And Accuracy Of Information Relied Upon By Expert
ALERT: CALCRIM HISTORY – The CALCRIM Committee addressed this defect in its December 2008 revisions.
*Modify CC 332, paragraph 1, sentence 5 as follows [added language is underlined; deleted language is stricken]:
You must decide Consider whether information on which the expert relied was true and accurate.
*Modify paragraph 2, sentence 3 as follows:
It is up to you to decide In evaluating the testimony consider whether an assumed fact has been proved.
Points and Authorities
See FORECITE F 101.4 Inst 1.
F 332 Inst 2 Cautionary Instruction Regarding Juror Use Of Common Sense And Experience To Trump Expert Opinion
See FORECITE F 105.1 Inst 3.
F 332 Inst 3 (a & b) Court-Appointed Expert Should Be Treated The Same As Any Other
*Add to CC 332:
Alternative a:
The fact that a witness was court appointed does not mean that [I] [the appointing judge] believes that the witness is better or more likely to be correct than the witnesses called by the parties. You are the final judges of which, if any, witnesses to believe and how much weight to give their testimony.
Alternative b:
I asked __________ <insert name of witness> to give an opinion in this case. This means only that __________ <insert name of witness> has not been (hired) (asked to appear) by either side. It does not mean that I believe that __________ <insert name of witness> is a better witness than [insert name(s) of expert witness(es) called by the parties]. Nor does it mean that __________ <insert name of court-appointed witness> is more likely to be correct than __________ <insert name(s) of expert witness(es) called by parties>. You must decide which of these witnesses, if any, to believe after you have carefully considered all the evidence in the case.
[Source: Federal Criminal Jury Instructions (2d ed. 1991, Michie), No. 2.23 [Cautionary Instruction—Court-Appointed Expert Witness].]
Points And Authorities
Under EC 722, the jury may be informed that an expert has been appointed by the court. (People v. Coddington (2000) 23 C4th 529, 616.) However, without a cautionary instruction, the jurors may tend to consider a court-appointed expert differently than other experts. An instruction on a court-appointed expert is needed to remind the jury that the fact that the judge appointed the expert does not require the jury to give that expert any special deference or consideration. The significant factor is that the expert is not paid by or related to either party.
Hence, if there is a court-appointed expert, the jury should be instructed that the opinions of such an expert should be given no greater weight than those of any other expert. (See Maine Jury Instructions (3rd Ed. 1988) Alexander 6-20, comment; Federal Criminal Jury Instructions (2d ed. 1991), No. 2.23; but see State v. Larson (MN 1979) 281 NW2d 481, 485 [jury should be entitled to take into account an expert’s court-appointed status in determining the amount of weight to accord his testimony].)
Identification Of Parties.—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 5.3 [Impairing Jury’s Assessment Of Witness Credibility]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 2.80a.
F 332 Inst 4 Expert Witness: Opinion Only As Good As Foundational Facts
*Add to CC 332:
An opinion is only as good as the facts and reasons on which it is based. Consider the evidence regarding any such fact in determining the value of the opinion. Likewise, consider the strengths and weaknesses of the reasons on which the opinion is based.
Also, if the expert relied on information supplied by others, consider the reasonableness of such reliance, as well as any evidence as to the reliability and/or accuracy of the information, in determining the credibility and weight of the expert’s testimony.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank # CCM-001.]
Need For Instruction – CC 332 fails to elaborate upon how the jury should consider the foundational aspects of the expert’s opinion in evaluating the weight and credibility of the expert testimony. It is well established that “expert opinions, even though uncontradicted, are worth no more than the reasons and factual data upon which they are based.” (Griffith v. County Of Los Angeles (1968) 267 CA2d 837, 847; see also People v. Gardeley (1996) 14 C4th 605, 618 [reliability of material relied on by expert is a threshold requirement]; People v. Bassett (1969) 71 C2d 153, 166; People v. Dodd (2005) 113 CA4th 1564, 1569.) “The value of opinion evidence rests not in the conclusion reached but in the factors considered and the reasoning employed. [Citations].” (Pacific Gas & Electric Co. v. Zuckerman (1987) 189 CA3d 1113, 1135.)
Identification Of Parties—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 5.3 [Impairing Jury’s Assessment Of Witness Credibility]
FORECITE CG 5.8 [Preliminary Factual Finding: Non-Element]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 2.80c.
F 332 Inst 5 Consideration Of Reasonableness Of Reliance On Information From Others
ALERT: CALCRIM HISTORY – The CALCRIM Committee addressed this defect in its December 2008 revisions.
*Add to CC 332, paragraph 1 as follows:
If a witness relied on information supplied by others, consider the reasonableness of such reliance, as well as any evidence as to the reliability and/or accuracy of the information, in determining the credibility and weight of the expert’s testimony.
Points and Authorities
The above-proposed instruction, which is taken from BAJI 2.40, should be added to CC 332. It is well established that when an expert relies on information made known to him or her by others, the reasonableness of the expert’s reliance upon that information is “a foundational question affecting the credibility and authority of the expert’s opinion.” (Mosesian v. Pennwalt Corp. (1987) 191 CA3d 851, 861; see also People v. Snow (2003) 30 C4th 43, 85 [expert may be cross-examined on the reasons for his opinion and on relevant material the expert did not consider]; Pfingsten v. Westenhaver (1952) 39 C2d 12, 20; In re Marriage of Sheldon (1981) 124 CA3d 371, 384 [determination of credibility of expert’s opinion requires consideration of the reasonableness of underlying factors used in forming that opinion].) “Where an expert bases his conclusion upon assumptions which are not supported by the record, upon matters which are not reasonably relied upon by other experts, or upon factors which are speculative, remote or conjectural, then his conclusion has no evidentiary value. [Citations].” (Pacific Gas & Electric Co. v. Zuckerman, 189 CA3d at 1135.) Accordingly, the second paragraph of the above-proposed instruction should also be added to CC 332.
Identification Of Parties.—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 5.3 [Impairing Jury’s Assessment Of Witness Credibility]
FORECITE CG 5.8 [Preliminary Factual Finding: Non-Element]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 2.80c.
F 332 Inst 6 Consideration Of Expert‘s Qualifications
*Modify CC 332, paragraph 3, sentence 3 as follows [added language is underlined; deleted language is stricken]:
You may Also compare consider the experts’ qualifications.]
Points and Authorities
The jurors “must” consider all relevant evidence. (See FORECITE F 316(& A) Inst 1.)
Identification Of Parties.—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 5.3 [Impairing Jury’s Assessment Of Witness Credibility]
FORECITE CG 7.1 [Right To Jury Consideration Of The Evidence]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 332 Inst 7 (a-d) Deletion Of The Term “Expert” From Expert Witness Instruction
*Modify CC 332, Instruction Title, as follows [added language is underlined; deleted language is stricken]:
Expert Opinion Witness Testimony Based On Knowledge, Experience, Education, Etc.
Alternative a:
*Modify CC 332 as follows [added language is underlined; deleted language is stricken]:
(A witness was/Witnesses were) allowed to testify as [an] expert[s] and to give [an] opinion[s] about _____________<insert subject of opinion testimony> [__________ <insert other>] [,] [and] [__________ <insert additional subject>] [.] [,] [and] [__________ <insert additional subject>]. You must consider the opinion[s], but you are not required to accept (it/them) as true or correct. The meaning and importance of any opinion are for you to decide. In evaluating the believability of an expert such a witness, follow the instructions about the believability of witnesses generally. In addition, consider the expert‘s witness‘knowledge, skill, experience, training, and education, the reasons the expert witness gave for any opinion, and the facts or information on which the expert witness relied in reaching that opinion. You must decide whether information on which the expert witness relied was true and accurate. You may disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence.
[An expert A witness may be asked a hypothetical question. A hypothetical question asks the witness to assume certain facts are true and to give an opinion based on the assumed facts. It is up to you to decide whether an assumed fact has been proved. If you conclude that an assumed fact is not true, consider the effect of the expert’s reliance on that fact in evaluating the expert‘s witness‘s opinion.]
[If the expert witnesses disagreed with one another, you should weigh each opinion against the others. You should examine the reasons given for each opinion and the facts or other matters on which each witness relied. You may also compare the experts‘ witness‘ qualifications.]
Alternative b:
*Replace CC 332 with:
You have heard a witness [witnesses] give opinions about matters requiring special knowledge or skill. You should judge this testimony in the same way that you judge the testimony of any other witness. The fact that such a person has given an opinion does not mean that you are required to accept it. Give the testimony whatever weight you think it deserves, considering the reasons given for the opinion, the witness’ qualifications, and all of the other evidence in the case.
[Source: 7th Circuit Federal Jury Instructions—Criminal 3.07 [Weighing Expert Testimony] (1999).]
Alternative c:
*Replace CC 332 with:
When knowledge of a technical subject matter might be helpful to the jury, a person having special training or experience in that technical field is permitted to state an opinion concerning those technical matters.
Merely because such a witness has expressed an opinion, however, does not mean that you must accept that opinion. The same as with any other witness, it is up to you to decide whether to rely upon it.
[Source: 11th Circuit Pattern Jury Instructions—Criminal Basic Instruction 7 [Expert Witnesses] (1997).]
Alternative d:
*Replace CC 332 with:
A witness who has special knowledge in a particular matter may give an opinion on that matter.
[Source: Idaho Criminal Jury Instructions, ICJI 104 [ Trial Procedure And Evidence] & & 8 (Idaho Law Foundation, Inc., 1995).]
Points and Authorities
Role Of CALCRIM Titles—See FORECITE F 200.1.2 Note 2.
Use Of The Term “Expert.”—Using the term “expert” in jury instructions may improperly mislead the jury into giving greater weight to the evidence than is appropriate. This is of particular concern in light of the modern reality that the “expert witness” is no longer likely to be neutral and objective (the idea once upon a time when expert witnesses were new to the judicial system), but rather will almost certainly be a partisan of the party that hired him—otherwise, that party would never have paid all that money to have him testify.
A way of dealing with the danger that jurors may be unduly deferential to expert opinion testimony is to preclude both the judge and counsel from using the term “expert.” Instead, the expert witnesses could be referred to as “opinion witnesses.” (See e.g., Stephen A. Saltzburg, “Testimony from an Opinion Witness: Avoid Using the Word “Expert” at Trial,” Criminal Justice, Summer 1994, p. 35; see also 5th Circuit Pattern Jury Instructions—Criminal 1.17 [Expert Witness] (2001); 7th Circuit Federal Jury Instructions—Criminal 3.07 [Weighing Expert Testimony] & & 1 Comment (1999) [“term ‘expert’ has been omitted to avoid the perception that the court credits the testimony of such a witness” ]; 11th Circuit Pattern Jury Instructions—Criminal Basic Instructions 7 [Expert Witnesses] (1997) [witness not referred to as expert in body of instruction]; Oklahoma Uniform Jury Instructions—Criminal, OUJI-CR 9-42 [Credibility Of Opinion Witness] (Oklahoma Center for Criminal Justice, 2nd ed. 1996, 1997 Supp.).)
Identification Of Parties.—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 5.4 [Argumentative, Improper Comment, Undue Emphasis Of Evidence]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 2.80d.
**CLICK HERE FOR F 332 INST 8-15 TEXT.**
F 332 Inst 8 Juror Claim Of Personal Expertise During Deliberations
*Add to CC 332:
Some of you may have gained experience or information in the course of your own lives which bears on questions which you are deciding as a jury. If this knowledge or expertise is beyond the common knowledge of the average person, do not disclose or discuss this with any of the other jurors. Instead, notify me immediately by a written note, since I must ensure that the rights of both parties are protected in the event one or more jurors might be exposed to such information.
Points and Authorities
“A fine line exists between using one’s background in analyzing the evidence, which is appropriate, even inevitable, and injecting an opinion explicitly based on specialized information obtained from outside sources, which we have described as misconduct.” (People v. Steele (2002) 27 C4th 1230, 1266; see also In re Malone (1996) 12 C4th 935 [juror expression of opinion explicitly based on specialized knowledge is misconduct]; Haley v. Blue Ridge Transfer Co., Inc. (4th Cir. 1986) 802 F2d 1532, 1538 [juror’s assertion during deliberations that his expertise regarding trucking industry confirmed witness’s testimony carries reasonable possibility of prejudice requiring new trial].
As with jury experiments, when “expert” opinions are expressed during deliberations by jurors with special knowledge, skill, or experience, ” ‘the jury has been itself taking evidence without the knowledge of either party, evidence which is not possible for the party injured to meet, answer, or explain.’ [Citation.] … Jurors cannot be permitted to investigate the case outside the courtroom. They must describe the guilt or the innocence of the defendant upon the evidence introduced at the trial. It is impossible for this court to say that this outside investigation did not affect the result as to the character of the verdict rendered. For, when misconduct of jurors is shown, it is presumed to be injurious to the defendant, unless the contrary appears.’ [Citation.]” (Bell v. California (1998) 63 CA4th 919, 931.)
Because the defendant cannot confront or respond to such expressions of expertise by a juror during deliberations, the state and federal (6th and 14th Amendment) constitutional rights to due process, confrontation, assistance of counsel and fair trial by jury are implicated.
Accordingly, it may be appropriate to caution the jury in this regard.
See FORECITE F 101.1 Note 7 [Juror Experiments During Trial Or Deliberations].
Identification Of Parties.—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 7.3 [Consideration Of Matters Not Admitted Into Evidence]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 2.80e.
F 332 Inst 9 Expert Witness: Weighing One Expert Against Another
*Add to CC 332, paragraph 3, after sentence 1:
In doing this, you should compare the relative credibility of the witnesses.
Points and Authorities
“It rest[s] with the jury to determine the credibility of the expert witnesses and resolve conflicts in their opinions. [Citations.]” (Monterey v. W.W. Leasing (1980) 109 CA3d 636, 646.) The essence of such evaluation is to compare the relative credibility of the witnesses.
Identification Of Parties.—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 5.3 [Impairing Jury’s Assessment Of Witness Credibility]
FORECITE CG 7.1 [Right To Jury Consideration Of The Evidence]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 2.83a.
F 332 Inst 10 Opinion Testimony: Inadmissible As To Definition Of The Crime Or Defendant’s Guilt Or Innocence
*Add to CC 332 as follows:
You may not rely on the opinion testimony of any witness as to [the definition of the charged crime] [or] [whether the defendant is guilty]. You must only rely on my instructions for that purpose.
Points and Authorities
Opinion Testimony May Not Usurp The Jury’s Function.—Allowing an expert to comment on the defendant’s guilt improperly usurps the jury’s function. (See People v. Torres (1995) 33 CA4th 37.) Unless this instructional request is granted the instruction will abridge the defendant’s rights under the above constitutional provisions by failing to assure that the jury will fairly and reliably assess witness credibility. “A fundamental premise of our criminal trial system is that ‘the jury is the lie detector.’ [Citation.] Determining the weight and credibility of witness testimony, therefore, has long been held to be the ‘part of every case [that] belongs to the jury, who are presumed to be fitted for it by their natural intelligence and their practical knowledge of men and the ways of men.’ [Citation.]” (U.S. v. Scheffer (1998) 523 US 303, 313 [118 SCt 1261; 140 LEd2d 413].) “Implicit in the right to trial by jury afforded criminal defendants under the Sixth Amendment to the Constitution of the United States is the right to have that jury decide all relevant issues of fact and to weigh the credibility of witnesses.” (U.S. v. Hayward (DC Cir. 1969) 420 F2d 142, 144; see also U.S. v. Gaudin (1995) 515 US 506, 511 [115 SCt 2309; 132 LEd2d 444]; Davis v. Alaska (1974) 415 US 308, 318 [94 SCt 1105; 39 LEd2d 347]; Bollenbach v. U.S. (1946) 326 US 607, 614 [66 SCt 402; 90 LEd 350] [“… the question is not whether guilt may be spelt out of a record, but whether guilt has been found by a jury according to the procedure and standards appropriate for criminal trials ….” ]; United States v. Geston (9th Cir. 2002) 299 F3d 1130 [prosecutor’s repeated questions to defense witnesses, asking whether, if a government witness had testified to a specific fact, that witness would be lying, impacted defendant’s due process rights]; United States v. Rockwell (3rd Cir. 1986) 781 F2d 985, 991 [instructions which “improperly invaded the province of the jury to determine the facts and assess the credibility of witnesses … [were] sufficiently misleading to deprive Rockwell of a fair trial” ]; Snowden v. Singletary (11th Cir. 1998) 135 F3d 732, 738 [allowing expert testimony that 99% of child sexual abuse victims tell the truth usurped the jury’s fact-finding role and made the trial fundamentally unfair].)
Improper To Usurp The Function Of The Court.—People v. Torres (1995) 33 CA4th 37, 44-48 held that neither the definition of a crime nor a defendant’s guilt or innocence are proper subjects of opinion testimony.
Identification Of Parties.—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 5.4.4 [Unconstitutional To Usurp Jury’s Functions]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 2.80 n11.
F 332 Inst 11 Failure Of Defendant To Call Expert Witness
*Add to CC 332:
The presumption of innocence places the burden on the prosecution to prove the defendant guilty beyond a reasonable doubt. Hence, even though the prosecution called a witness to testify about ___________ <insert subject> the defense had no obligation to call its own witness on that subject. Even uncontradicted prosecution witnesses cannot overcome the presumption of innocence unless, in light of all the evidence, those witnesses convince you beyond a reasonable doubt that the defendant is guilty.
Points and Authorities
See People v. Hill (1998) 17 C4th 800; see also FORECITE F 100.1 Inst 1.
Identification Of Parties.—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.2 [Defendant Has No Burden To Prove Defense Theory Which Negates Element Of Charge]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
PRACTICE NOTE: People v. Coddington (2000) 23 C4th 529, 604-06 held that it is a violation of the work product privilege (CCP 2018) for the prosecution to cross-examine defense psychiatrists as to whether they were aware that other psychiatrists had been retained and examined the defendant but did not testify. The Supreme Court held that the work product privilege protects investigation into mental defenses and which experts to present, and that the decision not to call an expert is itself shielded. (But see People v. Bolden (2002) 29 C4th 515 [nothing in the record indicated that any of the defense expert’s observations during the testing were the product of a privileged communication]; People v. Wash (1993) 6 C4th 215, 262-263 [prosecutor may comment on defense’s failure to call a logical witness].)
NOTE: A comment on the defendant’s failure to produce evidence could also constitute an unconstitutional shifting of the burden of proof. (See PG VII(C)(8).)
CALJIC NOTE: See FORECITE F 2.80 n16.
F 332 Inst 12 Explanatory Instruction Regarding Receipt Of Monetary Fee By Expert Witness
*Add to CC 332:
In evaluating the testimony of witness[es] ____________ [and _____________] you may not consider the amount of any fee the witness may have received for (his/her/his or her) testimony.
Moreover, the fact that witness ___________ was paid a fee and witness __________ was not is of no relevance whatsoever to the truth and accuracy of their testimony. The People generally have access to a stable of salaries governmental experts while the defense typically must resort to privately paid experts. This is simply part of trying a case and must have no [influence] [bearing] whatsoever on your evaluation of the witnesses.
Points and Authorities
In State v. Smith (NJ 2001) 770 A2d 255 the defendant appealed, contending that comments made by the prosecutor with respect to defendant’s expert witnesses’ compensation, and their relationship to the reliability of their testimony, constituted prosecutorial misconduct that required a new trial. The New Jersey Supreme Court found that the prosecutor’s comments improperly implied that because a prosecution witness (a law enforcement officer) was not paid, and the defense experts were, the State’s witness was more credible. Further, in practical terms, the prosecutor’s remarks could have been understood by the jury as an implied endorsement of the credibility of the State witness. Finally, the court concluded that the prosecutor’s remarks were improper and constituted prosecutorial misconduct.
“[W]e note that in criminal cases the State’s expert witnesses are almost always unpaid. Accordingly, we question the fairness of a jury instruction in criminal cases that merely states that the amount of a defense expert witness’s fee is a matter that a jury may consider as possibly affecting the credibility of the witness. Such an instruction, in a close case, may tip the scales in favor of the credibility of the State’s expert witnesses who, although unpaid, may have an equal or greater interest in the outcome than do the defense witnesses because they often are employed by a law enforcement agency involved in the prosecution. We request the Supreme Court Committee on Model Jury Charges, Criminal to consider the issue and to modify the standard expert witness instruction to achieve better balance in the trial of criminal cases. (Smith, 770 A2d at 274.)
“[A] unitary instruction tailored specifically to the vast majority of criminal cases in which the State’s expert is ‘unpaid’ and defense expert ‘paid’ should be given. The instruction should include, among other things, an explanation of the practical reasons why the State is not required to resort to paid experts; that the defense generally does not have access to a stable of ‘unpaid’ witnesses; and that payment of experts by the defense is simply part of the business of trying a case.” (Smith, 770 A2d at 275, Long, J., concurring opinion.)
“Further, the Committee should revisit the following language in the Model Charge: ‘You are instructed that the amount of the expert witness’s fee is a matter which you may consider as possibly affecting the credibility, interest, bias, or partisanship of the witness.’ Model Jury Charges (Criminal, “Expert Testimony” (September 15, 2000). The logical nexus between a legitimate and reasonable expert’s fee and the truthfulness of the expert is questionable. Indeed, a huge expert’s fee that might seem shocking and suspicious to jurors can be entirely legitimate if it is generated by the amount of time and effort expended on a particularly difficult project. I see no reason why a jury should be factoring the size of an expert’s fee into its credibility call unless there is evidence that the rate is not reasonable and customary for an expert of the sort; that the hours expended are inflated; or that the size of the fee evidences that it is in exchange for the substance of the opinion and not the work underlying it. … I would leave it to the Model Charge Committee to debate those issues and, if necessary, to develop a procedure for determining if and when the amount of a fee becomes relevant. The crucial point is that it is not relevant in every case.” (Smith, 770 A2d at 275, Long, J., concurring opinion.)
Identification Of Parties.—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 5.3 [Impairing Jury’s Assessment Of Witness Credibility]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 2.80 n21.
F 332 Inst 13 Expert Testimony: Not Admissible Regarding Reasonable Person Standard (Objective Reasonableness)
*Add to CC 332 when appropriate:
It is up to you to decide, if you can, whether the prosecution has proven that _________ <insert reasonableness issue, e.g., the defendant used reasonable force>. Hence, you must not defer to the opinion of any witness on this issue.
Points and Authorities
See U.S. v. Hanna (9th Cir. 2002) 293 F3d 1080, 1085-87 [average lay-person is qualified to determine what a “reasonable person” would foresee under the circumstances; hence, expert testimony on this issue is inadmissible]; see also U.S. v. Whitfield (8th Cir. 1994) 31 F3d 747, 749 [expert testimony not admissible as to whether a reasonable recipient of letters would have interpreted them as threats].
Identification Of Parties.—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 5.3 [Impairing Jury’s Assessment Of Witness Credibility]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 2.80 n25.
F 332 Inst 14 Expert Opinion: Availability Of Limiting Instruction To Counter EC 352 Objection To Admission Of Expert Testimony
*Add to CC 332:
The opinion testimony you are about to hear is offered for the following limited purpose _____________________. You may not consider it for any other purpose.
Points and Authorities
If the prosecution objects to a defense expert on the basis that the jury might be misled, limiting instructions may counter this concern. (See People v. Mayfield (1972) 23 CA3d 236, 243 [should it have appeared to the trial court that the evidence might “mislead the jury, proper admonition and instructions could [have] been given to clarify the purpose for which such evidence was to be received” ].)
Identification Of Parties.—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 7.4 [Juror Consideration Of Evidence For An Improper Purpose]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 2.80 n26.
F 332 Inst 15 Hypothetical Questions: Improperly Placing Burden On Defendant To Prove Hypotheticals
*Replace CC 332, paragraph 2, sentence 2 and 3 with the following:
In evaluating the testimony of an opinion witness consider whether or not the assumed fact is truthful and accurate.
Points and Authorities
CALCRIM 332 requires the jury to decide “whether an assumed fact has been proved,” and if the assumption is not proved, the jury is to determine the effect of that failure of proof on the value and weight of the expert opinion. People v. Frye (1998) 18 C4th 894, 960 rejected an argument that this instruction shifted the burden of proof to the defendant in violation of due process, but the matter has not been resolved in federal court.
Identification Of Parties.—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 5.3 [Impairing Jury’s Assessment Of Witness Credibility]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 2.82 n1.
F 332 Inst 16 Limiting Instruction When Expert Relies On Hearsay
*Add to CC 332:
Alternative a [CJ 2.10 adaption]:
There has been admitted in evidence the testimony of _______________ <name of expert witness> of statements made by _______________ <name of person making hearsay statement> in the course of an examination of _______________ <name of person making hearsay statement> which were made for the purpose of [diagnosis] [treatment]. These statements may be considered by you only for the limited purpose of showing the information upon which _______________ <name of expert witness> based [his] [her] opinion. This testimony is not to be considered by you as evidence of the truth of the facts disclosed by _______________ <name of person making hearsay statement> statements.
Alternative b:
In giving (his/her) opinion, _______________ <name of expert witness> [referred to certain alleged facts] [the following alleged facts _____________] which were relied on by _______________ <name of expert> in forming (his/her) opinion. Because these facts have not been proven by the evidence except through __________________’s testimony, you must only consider them for the limited purpose of deciding whether or not to accept ____________________’s opinion. Do not consider those facts for any other purpose.
Alternative c [Adapted from People v. Stanley (1995) 10 C4th 764, 838]:
You may only consider those out-of-court statements for the limited purpose of showing the information on which _______________ <name of expert witness> relied and not for the truth asserted in the statements.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Need For Limiting Instruction – See People v. Elliot (2005) 37 C4th 453; People v. Stanley (1995) 10 C4th 764, 838; CALJIC 2.10; see also People v. Jantz (2006) 137 CA4th 1283, 1295-96 [court erred in failing to give limiting instruction that jury could only consider defendant’s statements relied on by mental health expert to show basis for expert opinion and not for the truth].
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 7.4 [Juror Consideration Of Evidence For An Improper Purpose]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
PRACTICE NOTE—In the case of inflammatory hearsay, the jurors may have a difficult time heeding this sort of limiting instruction. (See generally People v. Kelly (1976) 17 C3d 24, 31; People v. Venegas (1998) 18 C4th 47, 83; Daubert v. Merrell Dow Pharms. (1993) 509 US 579, 595 [125 LEd 2d 469; 113 SCt 2786].) This risk of undue prejudice may be a basis for seeking to exclude the hearsay evidence in the first place under EC 352. (But compare People v. Mayfield (1972) 23 CA3d 236, 243.)
F 332 Inst 17 Reliability Of Foundational Fact Relied On By Expert As Preliminary Fact: Guilt Trial
*Add to CC 332:
Alternative a [Evidence offered by prosecution: CALCRIM 224 and 376 Format—Essential Fact Must Be Proved Beyond A Reasonable Doubt]:
The prosecution has presented the testimony of _______________ <name of expert>. However, you must not consider this testimony for any purpose unless the prosecution has first proved the following preliminary fact by a preponderance of the evidence: _______________ <alleged foundational facts relied on by expert>.
A fact is proved by a preponderance of the evidence if you find that it is more likely than not that the fact is true. This is a lesser burden of proof than proof beyond a reasonable doubt.
Unless [all of you] find this preliminary fact to exist, you must disregard, for all purposes, [the testimony of _______________ <name of witness>].
If you [all] find the above preliminary fact to exist then you [may] [must] consider [the testimony of witness _______________ <name of witness>] in your deliberations.
However, you must not rely on [_______________’s <name of witness> testimony] to find an essential fact or element of the charged offense[s], unless the prosecution has proved [the above preliminary fact beyond a reasonable doubt] [beyond a reasonable doubt that _______________<insert preliminary fact>.]
Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.
Alternative b [Evidence offered by the defense]:
The defendant has presented the testimony of _______________ <name of expert>. Before you may consider this testimony, you must first make a preliminary finding that:
It is more likely than not that _______________ <insert alleged foundational facts relied on by expert>. Any juror who has made this finding [may] [must] consider [the testimony of witness _______________ <name of witness>] in evaluating whether the prosecution has met its burden of proving the defendant guilty beyond a reasonable doubt.
The preliminary finding requirement applies only to the evidence regarding ____________. All other evidence is to be fully considered without any preliminary fact findings.
The preliminary fact finding discussed in this instruction does not alter or lessen the presumption of innocence or the prosecution’s burden to prove the defendant guilty beyond a reasonable doubt.
Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Reliability Of Foundational Fact As A Preliminary Fact—Since the relevance of any expert testimony depends on a finding that the foundational facts for the testimony are reliable (see People v. Gardeley (1996) 14 C4th 605, 618; People v. Dodd (2005) 133 CA4th 1564, 1569), that finding is a preliminary fact under EC 403.
Propriety Of Preliminary Fact Instruction–See EC 403; see also FORECITE F 319 Inst 1.
Preliminary Fact Must Be Proven Beyond A Reasonable Doubt Vis A Vis Essential Facts And Elements Of The Offense—The final paragraph of Alternative b, regarding proof of essential facts is adapted from CALCRIM 224 and 376. (See also, FORECITE 103.2 Inst 1; FORECITE CG 2.2.)
Whether the Jurors “Must” Consider The Evidence After Finding The Preliminary Fact—See FORECITE F 105.2 Inst 1.
Propriety of Juror Unanimity As To Preliminary Facts—See FORECITE F 3500.3.1.
Not Alone Sufficient To Convict—See FORECITE F 319 Inst 1.
Obligation Of Defendant To Prove Preliminary Fact Does Not Alter Prosecution’s Burden Of Proof– See FORECITE F 100.1 Inst 1; see also CAVEAT 3 in FORECITE F 319 Inst 1.
Identification Of Parties—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 5.7 [Preliminary Facts]
Unanimity Use Note—If unanimity is not required, then the instructions should be directed toward individual jurors. Those finding preliminary fact can consider the evidence, those not finding it cannot. (See generally, FORECITE F 100.7 Inst 2.)
CAVEAT 1: Benefits And Risks Of Preliminary Fact Instruction—Because they involve different standards of proof, preliminary fact instructions under EC 403 require careful strategic consideration. (See Caveat 1 in FORECITE F 319 Inst 1.)
CAVEAT 2: Obligation to Prove Preliminary Fact Does Not Alter Prosecution’s Burden of Proof—See Caveat 3 in FORECITE F 319 Inst 1.
CAVEAT 3: Burden Of Proof In EC 403 Instructions—See Caveat 2 in FORECITE F 319 Inst 1.
