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F 2.80 n1 Duty To Instruct Even If Witness Not Formally Designated An Expert.

In People v. Razo REV GTD/DISD/DEPUB (90) 217 CA3d 616 [266 CR 158], the Court of Appeal found a sua sponte duty to give CJ 2.80 when the testimony required a special expertise even though the witness was not formally designated as an expert.

In Razo, a detective gave his opinion that the manner of driving by the suspects was drug related. On appeal, the defendant contended that CJ 2.80 should have been given sua sponte because the testimony relied upon the officer’s expertise. The Attorney General argued that this was not expert testimony and that the witness was not formally designated an expert. The Court of Appeal concluded that the testimony was “beyond the ken of the ordinary person” and therefore CJ 2.80 was required sua sponte.

[Research Note: See FORECITE BIBLIO 2.80]

F 2.80 n2 Sua Sponte Duty To Limit Child Abuse Expert Testimony.

See FORECITE F 10.41b.

[Research Note: See FORECITE BIBLIO 2.80]

F 2.80 n3 Expert Witnesses: Expert Qualification.

“A witness is qualified to testify about a matter calling for an expert opinion if his particular skill, training or experience enables him to form an opinion that will be useful to the jury.” (People v. Davis (65) 62 C2d 791, 800 [44 CR 454]; see also People v. Harvey (91) 91 CA3d 1206, 1226-29 [285 CR 158] for a discussion of the factors to consider in determining whether the expert opinion is “helpful” to the trier of fact.)

[Research Note: See FORECITE BIBLIO 2.80]

F 2.80 n4 Expert Testimony: When Permissible.

“‘The jury need not be wholly ignorant of the subject matter of the opinion in order to justify its admission; if that were the test, little expert opinion testimony would ever be heard. Instead, the statute declares that even if the jury has some knowledge of the matter, expert opinion may be admitted whenever it would “assist” the jury. It will be excluded only when it would add nothing at all to the jury’s common fund of information, i.e., when “the subject of inquiry is one of such common knowledge that men of ordinary education could reach a conclusion as intelligently as the witness”‘ [Citation.]” (People v. McAlpin (91) 53 C3d 1289, 1299-1300 [283 CR 382].)

[Research Note: See FORECITE BIBLIO 2.80]

F 2.80 n5 Expert Witnesses: Bias Of Police Witness Re: Forfeiture.

In cases where a police officer “expert” testifies that the defendant possessed drugs for the purposes of sale, the defendant may wish to request an instruction informing the jury that if the defendant is convicted of possession for sale, his/her property may be forfeited and over 75% of the proceeds may go to the local police agency which participated in the seizure. (HS 114895(b)(2).) Such an instruction is warranted because the police officer may have a bias or motive in seeing that the defendant is convicted of possession for sale as opposed to simple possession which does not result in forfeiture. (See People v. Cardwell UNPUBLISHED (F014847).) [A copy of this opinion is available to FORECITE subscribers. Ask for Opinion Bank # O-105.]

RESEARCH NOTES: See Annotation, Admissibility, in criminal prosecution, of expert opinion allegedly stating whether drugs were possessed with intent to distribute — state cases, 83 ALR4th 629 and Later Case Service.

[Research Note: See FORECITE BIBLIO 2.80]

F 2.80 n6 Limitations On Expert Testimony Regarding Gangs: Admissibility Of Gang Expert Evidence.

See FORECITE F 1403 Note 3.

F 2.80 n7 Expert Testimony As To Combined Effects Of Alcohol And Cocaine.

In People v. Coyle (94) 22 CA4th 1679, 1684-85 [28 CR2d 488], the court held that a forensic expert on alcohol and cocaine use may offer an opinion as to the substances combined effects despite absence of clinical studies on that issue.

[Research Note: See FORECITE BIBLIO 2.80]

F 2.80 n8 Expert Witnesses: DNA Issues And Instructions.

ALERT: As of January 1, 2001, PC 1405 and PC 1417.9 were added concerning motions and procedures for obtaining post-conviction DNA testing and the retention period of biological material obtained. (SB 1342, Ch. 821.)

ALERT: Effective January 1, 2002, PC 1405 and PC 1417.9 were amended to allow an indigent inmate to request appointment of counsel by sending a written request for postconviction DNA testing to the court and requires the court to appoint counsel. (SB 83, Stats. 2001, Ch. 943.)

A. Admissibility Of DNA Evidence. People v. Soto (99) 21 C4th 512 [88 CR2d 34] held that DNA forensic analysis is generally accepted in the scientific community and admissible in a criminal prosecution. DNA evidence from polymerase chain reaction matching technique satisfies the standard for general scientific acceptance and admissibility. (People v. Wright (98) 62 CA4th 31, 34 [72 CR2d 246]; regarding DNA, People v. Morganti (96) 43 CA4th 643, 671 [50 CR2d 837] [PCR matching technique satisfied the standard for general scientific acceptance and admissibility stated in People v. Kelly (76) 17 C3d 24, 30-32 [130 CR 144] and Frye v. United States (D.C. Cir. 1923) 293 F 1013, 1014]. (See also People v. Venegas (98) 18 C4th 47 [74 CR 262]; People v. Reeves (2001) 91 CA4th 14, 37-50 [109 CR2d 728] [statistical calculations used to support DNA evidence admissible because they are generally accepted in scientific community].) RFLP Methodology for DNA Analysis has reached a general scientific acceptance and the prosecution no longer need prove this in Kelly-Frye hearings. However, the correct scientific procedures must be followed in making statistical probability calculations.

B. Challenging DNA Evidence. Michael Burt of the San Francisco Public Defender’s Office, who had a major victory in a challenge to admission of DNA evidence, recommends Tainting Evidence: Inside the Scandals at the FBI Crime Lab, by John F. Kelly and Phillip K. Wearne, as a good introduction to crime lab practices. The book also exposes the potential fallibility of forensic evidence.

Counsel contemplating a challenge to forensic evidence should also be sure to read Kim Kruglick’s article, “A Beginner’s Primer on the Investigation of Forensic Evidence.” This extremely useful article appeared in the most recent edition of California Defender. Mr. Kruglick is sponsor of The Forensic Resource and Criminal Law Search Site www.kruglaw.com.

C. Post-Conviction Testing. Due to the powerful potential for exonerating defendants who have been wrongly convicted, post conviction DNA testing should trigger an adjustment in the roles that customarily are played in the adversarial proceedings. (See “Post Conviction DNA Testing: Recommendations for Handling Requests,” by the National Commission on the Future of DNA (9/27/99). This report addresses numerous legal issues including whether a right to DNA testing can be derived from post conviction relief statutes, rules of Brady v. Maryland (63) 373 US 83 [10 LEd2d 215; 83 SCt 1194] or other sources. The report also suggests an analytical framework for evaluating post conviction requests for DNA testing. [A copy of the report is available to FORECITE subscribers. See Article Bank # A-76, which is available on the FORECITE website in two parts: A-76-i and A-76-ii.] The report may also be found at:

www.ojp.usdoj.gov/nij/pubs.aspx

[Bibliographical material regarding the admissibility of DNA as evidence is available to FORECITE subscribers. Ask for Article Bank # A-42.]

D. DNA Jury Instructions And Motions. A motion and instructions regarding DNA are available to FORECITE subscribers. See Motion Bank # M-3012 and Instruction Bank # I-868.

E. DNA Research Notes. For bibliographical material regarding the admissibility of DNA as evidence, see:

“Staying Dumb About DNA,” by Rock Harmon, The San Francisco Recorder (July 18, 1994) p. 8.

Thompson, William C., “Evaluating The Admissibility Of new Genetic Identification Tests: Lesson From The ‘DNA War’,” (1993) 84 J.Crim.L. & Criminology 22.

“Admissibility Rift Clouds DNA Use In Simpson Trial,” by Bill Kisliuk, The San Francisco Recorder (June 24, 1994) p. 1.

“Ninth Circuit OKs DNA Evidence At Criminal Trials,” by Bill Kisliuk, The San Francisco Recorder (July 26, 1994) p. 1.

Ian W. Evett & Bruce S. Weir, Interpreting DNA Evidence: Statistical Genetics for Forensic Scientists (1998).

Elaine Johnson Mange & Arthur P. Mange, Basic Human Genetics (2d ed. 1999).

National Research Council Committee on DNA Forensic Science: An Update, The Evaluation of Forensic DNA Evidence (1996).

National Research Council Committee on DNA Technology in Forensic Science, DNA Technology in Forensic Science (1992).

F. DNA: Improper To Assume Perpetrator’s Ethnicity. See People v. Pizarro (2003) 110 CA4th 530 [DNA analysis was flawed by assumption that defendant was perpetrator].

G. DNA Genetic Profiles Based On Race Data. See People v. Wilson (2005) 38 C4th 1237.

F 2.80 n9 Expert Witnesses: Impact Of Daubert.

In Daubert v. Merrell Dow (93) 509 US 579 [125 LEd2d 469, 479; 113 SCt 2786], an opinion not binding on state courts, the U.S. Supreme Court declared that the Frye “general acceptance“ test did not survive adoption of the federal rules of evidence. At the same time, the Supreme Court imposed a requirement that with respect to scientific evidence, the trial judge under the federal rules must act as a gate keeper, screening scientific evidence to ensure reliability. (Daubert, 125 LEd2d at 480; see also Kumho Tire Co., Ltd. v. Carmichael (99) 526 US 137 [143 LEd2d 238; 119 SCt 1167] [Daubert applies to all expert testimony, not just scientific opinion].) In People v. Wash (93) 6 C4th 215, 243, fn 9 [24 CR2d 421], the California Supreme Court left open the question of whether it will follow Daubert. For a discussion of the Daubert opinion, see 30 Criminal Law Bulletin 153 (1994). [FORECITE subscribers may obtain a copy of this article. Ask for Article # A-33.]

In People v. Leahy (94) 8 C4th 587, 612 [34 CR2d 663], the Supreme Court held that new scientific techniques are required to meet the Kelly-Frye standard of admissibility. (See also People v. Protsman DEPUBLISHED (2001) 88 CA4th 509, 516 [105 CR2d 819] [expert testimony is properly excluded at trial if no consensus exists regarding new scientific technique (use of PET scan to show frontal lobe damage caused by prior head trauma)].)

PRACTICE NOTE: Given the fact that the California Supreme Court has expressly rejected the Daubert Rule (see People v. Leahy (94) 8 C4th 587 [34 CR2d 663]), and Daubert is not a constitutional rule, that rule should not be applicable in California.

F 2.80 n10 Failure To Give Expert Instruction Held Harmless.

In People v. Orbe REV GTD/DISD/DEPUB (94) 29 CA4th 1532, 1538-40 [35 CR2d 339], the court held that the failure to give CJ 2.80 was harmless.

F 2.80 n11 Opinion Testimony: Inadmissible as to Definition of the Crime or Defendant’s Guilt or Innocence.

People v. Torres (95) 33 CA4th 37, 44-48 [39 CR2d 103] held that neither the definition of a crime nor a defendant’s guilt or innocence are proper subjects of opinion testimony.

F 2.80 n12 “Drug Involvement Profile” Evidence Inadmissible As Substantive Proof Of Guilt.

“Drug involvement profile” evidence which seeks to establish the defendant’s guilt by demonstrating that his or her behavior matched that of drug dealers previously encountered by the expert is too unreliable to be of assistance to the trier of fact and should be excluded as being more prejudicial than probative on the issue of the defendant’s guilt. (See People v. Martinez (92) 10 CA4th 1001, 1004-08 [12 CR2d 838]; see also, People v. Hubbard (95) 530 NW2d 130 [209 Mich.App. 234], but see People v. Barnes DEPUBLISHED (2004) 122 CA4th 858 [profile evidence properly admitted regarding operation of crack cocaine dealers in the area and opinion that defendants were cocaine dealers based on their behavior]; People v. Singh (95) 37 CA4th 1343, 1377-79 [44 CR2d 644].)

(See FORECITE F 2.80 n19.)

F 2.80 n13 Expert Witnesses: Kelly-Frye Analysis Inapplicable To Expert Psychiatric Or Psychological Testimony.

(See People v. Ward (99) 71 CA4th 368, 373 [83 CR2d 828] [testimony of psychologist who assesses whether a criminal defendant displays signs of deviance or abnormality is not subject to Kelly-Frye].)

Psychological evaluation is a “learned professional art rather than the purported exact ‘science’ with which Kelly-Frye is concerned….” (People v. Stoll (89) 49 C3d 1136, 1159 [265 CR 111] [emphasis in original].)

F 2.80 n14 Expert Testimony: Improper Prosecutorial Comment On Failure Of Expert To Testify Regarding Whether Defendant Did Or Did Not Have Required Mental State As Misconduct.

(See People v. Ochoa (98) 19 C4th 353, 489-90 [79 CR2d 408] [comment was misconduct in light of PC 29 which precludes experts from testifying as to whether a defendant did or did not have a required mental state].)

F 2.80 n15 Whether Kelly Rule Of Admissibility Is Applicable To Psychiatric And Psychological Testimony.

Psychological or psychiatric testimony such as whether a defendant is a sexually violent predator (People v. Ward (99) 71 CA4th 368 [83 CR2d 828]) or testimony regarding defendant’s propensity for sexual deviance (People v. Stoll (89) 49 C3d 1136 [265 CR 111]) are not subject to the Kelly rule (People v. Kelly (76) 17 C3d 24 [130 CR 144]; see also People v. Leahy (94) 8 C4th 587 [34 CR2d 663]; see also FORECITE F 2.80 n17.)

F 2.80 n16 Expert Witness: Work Product Privilege — Improper To Comment On Defendant’s Failure To Call Expert.

PRACTICE NOTE: People v. Coddington (2000) 23 C4th 529, 604-06 [97 CR2d 528] 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 [127 CR2d 802] [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).)

F 2.80 n17 Challenging Admission Of Recovered Memory (Repressed Memory Syndrome).

It may be argued that “Recovered Memory” evidence is unreliable and inadmissible as novel scientific evidence. (See People v. Kelly (76) 17 C3d 24 [130 CR 144]; see also People v. Leahy (94) 8 C4th 587 [34 CR2d 663]; but seeWilson v. Phillips (99) 73 CA4th 250 [86 CR2d 204] [Kelly rule not applicable to testimony on repressed memory].) [See Brief Bank # B-886 and Article Bank # A-74 for briefing arguing that such evidence is inadmissible and an article on repressed/recovered memory.

F 2.80 n18 Confessions And Admissions: Expert Testimony Regarding Defendant’s Language/Communication Difficulties To Explain Discrepancies Between Statements To Police And Defendant’s Version.

(See FORECITE F 2.70 n10.)

F 2.80 n19 Expert Testimony: Improper Profile Evidence.

See People v. Robbie (2001) 92 CA4th 1075, 1084-86 [112 CR2d 479] [abuse of discretion for trial court to admit expert “profiling” evidence which tied accused rapist’s conduct to profile description of other sex offenders]; see also FORECITE F 2.80 n12.

F 2.80 n20 Improper To Characterize Prosecution Witness As Fingerprint “Expert.”

Instructions which characterize a particular witness as an “expert“ may improperly mislead the jury into giving undue weight to the testimony of that witness. (See FORECITE F 2.80d [Deletion Of The Term “Expert“ From Expert Witness Instruction].) This practice may be especially prejudicial with regard to fingerprint evidence. (See e.g., State v. Melton (NC 1971) 180 SE2d 476, 478 [court improperly emphasized to jury that it had found the witness to be an expert].)

See also FORECITE F 2.025 n4.

F 2.80 n21 Explanatory Instruction Regarding Receipt Of Monetary Fee By Expert Witness.

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’ 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.)

F 2.80 n22 Opinion Testimony In Sex Cases: Appellate Counsel Should Be Especially Alert To The Improper Admission Of Opinion Testimony By Sexual Assault Response Team Nurses.

An article on this issue, “Evidentiary Issues Frequently Arising In Sex Cases“ by Dallas Sacher, is available to FORECITE subscribers. See Article Bank # A-95.

F 2.80 n23 Expert Testimony In Sex Cases: Although The Prosecution Can Present Expert Testimony To Disabuse Jurors Of Myths Which They May Believe, Such Testimony May Not Be Used As Substantive Evidence Of Guilt.

An article on this issue, “Evidentiary Issues Frequently Arising In Sex Cases“ by Dallas Sacher, is available to FORECITE subscribers. See Article Bank # A-95.

F 2.80 n24 Whether Reliability Of Polygraph May Be Proven Under Kelly.

Relying on U.S. v. Scheffer (98) 523 US 303 [140 LEd2d 413; 118 SCt 1261], People v. Wilkinson (2004) 33 C4th 821 held that there is a “deep division in the scientific and legal communities regarding the reliability of polygraph evidence. . . .“ Therefore, categorical exclusion of such evidence by EC 351.1 is not unconstitutional because evidence has no probative value unless is it reliable.

F 2.80 n25 Expert Testimony: Not Admissible Regarding Reasonable Person Standard (Objective Reasonableness).

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 alsoU.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].

F 2.80 n26 Expert Opinion: Availability Of Limiting Instruction To Counter EC 352 Objection To Admission Of Expert Testimony.

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 (72) 23 CA3d 236, 243 [100 CR 104] [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“].)

F 2.80 n27 Challenging Prosecution Forensic Evidence.

Michael Burt has written an excellent article entitled “Challenging Prosecution Forensic Evidence.” The article discusses the latest potential challenges to many kinds of forensic evidence, including fingerprints, ballistics, handwriting and many others. To read this article, see Article Bank #A-97.

F 2.80 n28 Challenge To Expert Handwriting Comparison.

(See FORECITE F 2.80 n27 [Challenging Prosecution Forensic Evidence].)

For briefing and a motion on this issue see Brief Bank # B-968 and Motion Bank # M-3018.

RESEARCH NOTE: See “Daubert/Kumho Challenges To Handwriting Analysis,” by Lynn C. Hartfield, NACDL Champion, November 2002 (www.nacdl.org).

F 2.80 n29 Admissibility Of Expert Testimony That Alleged Victim Does Not Exhibit Symptoms Of Molestation.

See People v. Wells (2004) 118 CA4th 179 [citing People v. Bledsoe (84) 36 C3d 236 for proposition that expert testimony on trauma syndromes may not be presented by either side]; but see concurring opinion of Pollak, J.concluding that trial court erred in excluding the testimony.

F 2.80 n30 Error To Admit Gang Evidence On Undisputed Issue To Which Defense Offered To Stipulate.

See People v. Avitia (2005) 127 CA4th 185, 193-94 [reversible error to admit evidence of gang graffiti found in defendant’s bedroom on issue which was undisputed and to which defense offered to stipulate].

F 2.80a

Court-Appointed Expert Should Be Treated The Same As Any Other

*Add to CJ 2.80:

ALTERNATIVE # 1:

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 # 2:

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 [97 CR2d 528].) 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 thing 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].)

F 2.80b

Testimony of Expert Witness

*Add to CJ 2.80:

ALTERNATIVE FORM

During the trial you heard the testimony of __________, who was described to us as an expert in __________. This witness was permitted to testify even though [he] [she] did not actually witness any of the events involved in this trial.

A person’s training and experience may make [him] [her] an expert in a particular field. The law allows an expert to state an opinion here about matters in that particular field. Merely because __________ has expressed an opinion does not mean, however, that you must accept this opinion. As with any other witness, it is up to you to decide whether you believe [his] [her] testimony and choose to rely upon it. Part of that decision will depend on your judgment about whether [his] [her] background of training and experience is sufficient for [him] [her] to give the expert opinion that you heard. You must also decide whether [his] [her] opinions were based on sound reasons, judgment, and information.

Points and Authorities

Adapted from Fed. Jud. Ctr., Pattern Crim. Jury Instructions (1988), Inst. # 27, p. 36.

F 2.80c

Expert Witness: Consideration Of The Foundation Of The Opinion

*Add to CJ 2.80:

An opinion is only as good as the facts and reasons on which it is based. You must consider the evidence regarding any such fact in determining the value of the opinion. Likewise, you must consider the strengths and weaknesses of the reasons on which the opinion is based.

Also, if the expert relied on information supplied by others, you must 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

CJ 2.80 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 (68) 267 CA2d 837, 847 [73 CR 773]; see also People v. Gardeley (96) 14 C4th 605, 618 [59 CR2d 356] [reliability of material relied on by expert is a threshold requirement]; People v. Bassett (69) 71 C2d 153, 166 [77 CR 790]; Sears Roebuck & Co. v. Walls (60) 178 CA2d 284, 289 [2 CR 847].) “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 (87) 189 CA3d 1113, 1135 [234 CR 630].)

Accordingly, the first paragraph of the above proposed instruction, which is taken from BAJI 2.40, should be added to CJ 2.80. Moreover, it is also 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. (87) 191 CA3d 851, 861 [236 CR 778]; 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 (52) 39 C2d 12, 20 [244 P2d 395]; In re Marriage of Sheldon (81) 124 CA3d 371, 384 [177 CR 380] [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 CJ 2.80.

F 2.80d

Deletion Of The Term “Expert” From Expert Witness Instruction

* Modify CJ 2.80 as follows [added language is capitalized; deleted language is between << >>]:

[A witness] [Witnesses] who [has] [have] special knowledge, skill, experience, training or education in a particular subject [has] [have] testified to certain opinions. <<Any such witness is referred to as an expert witness.>> In determining what weight to give to any opinion expressed by <<an expert witness>> SUCH [WITNESS] [WITNESSES], you should consider the qualifications and believability of the witness, the facts or materials upon which each opinion is based, and the reasons for each opinion.

ALTERNATIVE INSTRUCTION # 1:

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 INSTRUCTION # 2:

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 INSTRUCTION # 3:

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

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.).)

F 2.80e

Juror Claim Of Personal Expertise During Deliberations

*Add to CJ 2.80:

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 or the bailiff immediately, 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 [120 CR2d 432]; see also In re Malone (96) 12 C4th 935 [50 CR2d 281] [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 (98) 63 CA4th 919, 931 [74 CR2d 541].)

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.

F 2.80f Reliability Of Foundational Fact Relied On By Expert As Preliminary Fact: Guilt Trial.

See FORECITE F 332 Inst 17.