SERIES 300 EVIDENCE
F 332 NOTES
TABLE OF CONTENTS
F 332 Note 1 Duty To Instruct Even If Witness Not Formally Designated An Expert
F 332 Note 2 Sua Sponte Duty To Limit Child Abuse Expert Testimony
F 332 Note 3 Expert Witnesses: Expert Qualification
F 332 Note 4 Expert Testimony: When Permissible
F 332 Note 5 Expert Witnesses: Bias Of Police Witness Re: Forfeiture
F 332 Note 6 Limitations On Expert Testimony Regarding Gangs: Admissibility Of Gang Expert Evidence
F 332 Note 7 Expert Testimony As To Combined Effects Of Alcohol And Cocaine
F 332 Note 8 Expert Witnesses: DNA Issues And Instructions
F 332 Note 9 Expert Witnesses: Impact Of Daubert
F 332 Note 10 Failure To Give Expert Instruction Held Harmless
F 332 Note 11 “Drug Involvement Profile” Evidence Inadmissible As Substantive Proof Of Guilt
F 332 Note 12 Expert Witnesses: Kelly-Frye Analysis Inapplicable To Expert Psychiatric Or Psychological Testimony
F 332 Note 13 Expert Testimony: Improper Prosecutorial Comment On Failure Of Expert To Testify Regarding Whether Defendant Did Or Did Not Have Required Mental State As Misconduct
F 332 Note 14 Whether Kelly Rule Of Admissibility Is Applicable To Psychiatric And Psychological Testimony
F 332 Note 15 Challenging Admission Of Recovered Memory (Repressed Memory Syndrome)
F 332 Note 16 Confessions And Admissions: Expert Testimony Regarding Defendant’s Language/Communication Difficulties To Explain Discrepancies Between Statements To Police And Defendant’s Version
F 332 Note 17 Expert Testimony: Improper Profile Evidence
F 332 Note 18 Improper To Characterize Prosecution Witness As Fingerprint “Expert”
F 332 Note 19 Opinion Testimony In Sex Cases: Appellate Counsel Should Be Especially Alert To The Improper Admission Of Opinion Testimony By Sexual Assault Response Team Nurses
F 332 Note 20 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
F 332 Note 21 Whether Reliability Of Polygraph May Be Proven Under Kelly
F 332 Note 22 Challenging Prosecution Forensic Evidence
F 332 Note 23 Challenge To Expert Handwriting Comparison
F 332 Note 24 Admissibility Of Expert Testimony That Alleged Victim Does Not Exhibit Symptoms Of Molestation
F 332 Note 25 Hypothetical Questions: Improper If “Divorced From The Evidence”
F 332 Note 26 Statements By Defendant To Expert Not Admissible For The Truth
F 332 Note 27 Theoretical Expert Conclusion Is Not Substantial Evidence
F 332 Note 28 Expert May Not Reveal Content Of Reports Prepared By Nontestifying Experts
Return to Series 300 Table of Contents.
F 332 Note 1 Duty To Instruct Even If Witness Not Formally Designated An Expert
In People v. Razo REV GTD/DISD/DEPUB (1990) 217 CA3d 616, 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.]
CALJIC NOTE: See FORECITE F 2.80 n1.
F 332 Note 2 Sua Sponte Duty To Limit Child Abuse Expert Testimony
See FORECITE F 1193.2 Inst 2; F 10.41b.
[Research Note: See FORECITE BIBLIO 2.80]
CALJIC NOTE: See FORECITE F 2.80 n2.
F 332 Note 3 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 (1965) 62 C2d 791, 800; see also People v. Harvey (1991) 233 CA3d 1206, 1226-29 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]
CALJIC NOTE: See FORECITE F 2.80 n3.
F 332 Note 4 Expert Testimony: When Permissible
A‘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 (1991) 53 C3d 1289, 1299-1300.)
[Research Note: See FORECITE BIBLIO 2.80]
CALJIC NOTE: See FORECITE F 2.80 n4.
F 332 Note 5 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).)
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.
See FORECITE F 105.2 Inst 4 [Interest Of Witness In Outcome Of Proceeding].
[RESEARCH NOTE: See FORECITE BIBLIO 2.80.]
CALJIC NOTE: See FORECITE F 2.80 n5.
F 332 Note 6 Limitations On Expert Testimony Regarding Gangs: Admissibility Of Gang Expert Evidence
Expert testimony on gang membership and behavior is admissible under certain circumstances, but the scope of such testimony is not unlimited. (See People v. Perez (1981) 114 CA3d 470, 477 [improper to admit gang membership testimony to prove identity]; In re Wing Y. (1977) 67 CA3d 69, 78 [reputation evidence may not be used to prove gang membership].)
Evidence that the defendant is a member of a gang may have a “highly inflammatory impact” on the jury. (People v. Gurule (2002) 28 C4th 557, 653.) Therefore, “trial courts should carefully scrutinize such evidence before admitting it.” (People v. Champion (1995) 9 C4th 879, 922.) “Such evidence should not be admitted if only tangentially relevant [citation] because of the possibility that the jury ‘will improperly infer the defendant has a criminal disposition and is therefore guilty of the offense charged’ [citation] ….” (People v. Gurule, supra, 28 C4th at 653; see also People v. Williams (1997) 16 C4th 153, 193.)
People v. Bojorquez (2002) 104 CA4th 335 held that, where other evidence showed the witness’s association with defendant, evidence of their gang membership should have been excluded under EC 352, in view of its inflammatory and prejudicial nature. There was independent evidence of a relationship between defendant and the witness. Although this evidence weighed against admitting gang membership to show bias, defendant testified that he had been a gang member and that the witness was as well. However, the detective’s testimony concerning gangs was prejudicial. His testimony about the ethnic composition and criminal habits of gangs was neither a necessary nor a proper foundation for his capacity to testify about them. The detective’s repeated reference to gangs pursuing robberies, followed by declaring that defendant’s gang was involved in criminal activity, tended to ascribe guilt to defendant. The error was prejudicial and required reversal. (But see People v. Ferraez (2003) 112 CA4th 925, 930-931 [gang expert’s testimony was necessary to explain to the jury how a gang’s reputation can be enhanced through drug sales and how a gang may use the proceeds from such felonious conduct].)
For briefing on this issue, see Brief Bank # B-975.
[For an unpublished opinion reversing convictions for erroneous admission of gang evidence in the form of expert testimony, see People v. Estrada UNPUBLISHED (F039419) 2003 Cal. App. Unpub. LEXIS 217.]
See also FORECITE F 2.50f for proposed modification making CJ 2.50 applicable to gang evidence.
[Research Note: See FORECITE BIBLIO 2.80]
CALJIC NOTE: See FORECITE F 2.80 n6.
F 332 Note 7 Expert Testimony As To Combined Effects Of Alcohol And Cocaine
In People v. Coyle (1994) 22 CA4th 1679, 1684-85, 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
CALJIC NOTE: See FORECITE F 2.80 n7.
F 332 Note 8 Expert Witnesses: DNA Issues And Instructions
See FORECITE F 315.6.
F 332 Note 9 Expert Witnesses: Impact Of Daubert
In Daubert v. Merrell Dow (1993) 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 (1999) 526 US 137 [143 LEd2d 238; 119 SCt 1167] [Daubert applies to all expert testimony, not just scientific opinion].) In People v. Wash (1993) 6 C4th 215, 243, fn 9, 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).
In People v. Leahy (1994) 8 C4th 587, 612, 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 [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 (1994) 8 C4th 587), and Daubert is not a constitutional rule, that rule should not be applicable in California.
CALJIC NOTE: See FORECITE F 2.80 n9.
F 332 Note 10 Failure To Give Expert Instruction Held Harmless
In People v. Orbe REV GTD/DISD/DEPUB (1994) 29 CA4th 1532, 1538-40, the court held that the failure to give CJ 2.80 was harmless.
CALJIC NOTE: See FORECITE F 2.80 n10.
F 332 Note 11 “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 (1992) 10 CA4th 1001, 1004-08; see also, People v. Hubbard (1995) 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 (1995) 37 CA4th 1343, 1377-79.)
(See FORECITE F 332 Note 17.)
CALJIC NOTE: See FORECITE F 2.80 n12.
F 332 Note 12 Expert Witnesses: Kelly-Frye Analysis Inapplicable To Expert Psychiatric Or Psychological Testimony
(See People v. Ward (1999) 71 CA4th 368, 373 [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 (1989) 49 C3d 1136, 1159 [emphasis in original].)
CALJIC NOTE: See FORECITE F 2.80 n13.
F 332 Note 13 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 (1998) 19 C4th 353, 489-90 [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].)
CALJIC NOTE: See FORECITE F 2.80 n14.
F 332 Note 14 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 (1999) 71 CA4th 368) or testimony regarding defendant’s propensity for sexual deviance (People v. Stoll (1989) 49 C3d 1136) are not subject to the Kelly rule (People v. Kelly (1976) 17 C3d 24; see also People v. Leahy (1994) 8 C4th 587; see also FORECITE F 332 Note 15.)
CALJIC NOTE: See FORECITE F 2.80 n15.
F 332 Note 15 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 (1976) 17 C3d 24; see also People v. Leahy (1994) 8 C4th 587; but see Wilson v. Phillips (1999) 73 CA4th 250 [Kelly rule not applicable to testimony on repressed memory].) [See Brief Bank # B-886 and Article Bank # A-74for briefing arguing that such evidence is inadmissible and an article on repressed/recovered memory.]
CALJIC NOTE: See FORECITE F 2.80 n17.
F 332 Note 16 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 358 Note 6.)
CALJIC NOTE: See FORECITE F 2.80 n18.
F 332 Note 17 Expert Testimony: Improper Profile Evidence
See People v. Robbie (2001) 92 CA4th 1075, 1084-86 [abuse of discretion for trial court to admit expert “profiling” evidence which tied accused rapist’s conduct to profile description of other sex offenders].
CALJIC NOTE: See FORECITE F 2.80 n19.
F 332 Note 18 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 332 Inst 7 [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].)
CALJIC NOTE: See FORECITE F 2.80 n20.
F 332 Note 19 Opinion Testimony In Sex Cases: Appellate Counsel Should Be Especially Alert To The Improper Admission Of Opinion Testimony By Sexual Assault Response Team Nurses
See Article Bank # A-95for the article on this issue, “Evidentiary Issues Frequently Arising In Sex Cases,” by Dallas Sacher.
CALJIC NOTE: See FORECITE F 2.80 n22.
F 332 Note 20 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
See Article Bank # A-95. for the article on this issue, “Evidentiary Issues Frequently Arising In Sex Cases,” by Dallas Sacher.
CALJIC NOTE: See FORECITE F 2.80 n23.
F 332 Note 21 Whether Reliability Of Polygraph May Be Proven Under Kelly
Relying on U.S. v. Scheffer (1998) 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.
CALJIC NOTE: See FORECITE F 2.80 n24.
F 332 Note 22 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.
CALJIC NOTE: See FORECITE F 2.80 n27.
F 332 Note 23 Challenge To Expert Handwriting Comparison
(See FORECITE F 332 Note 22 [Challenging Prosecution Forensic Evidence].)
For briefing and a motion on this issue, see Brief Bank # B-968and Motion Bank # M-3018.
RESEARCH NOTE: See “Daubert/Kumho Challenges To Handwriting Analysis,” by Lynn C. Hartfield, NACDL Champion, November 2002 (http://www.nacdl.org).
CALJIC NOTE: See FORECITE F 2.80 n28.
F 332 Note 24 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 (1984) 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.
CALJIC NOTE: See FORECITE F 2.80 n29.
F 332 Note 25 Hypothetical Questions: Improper If “Divorced From The Evidence”
“Although the field of permissible hypothetical questions is broad, a party cannot use this method of questioning a witness to place before the jury facts divorced from the actual evidence and for which no evidence is ever introduced.” (See People v. Boyette (2002) 29 C4th 381, 449 [prosecutor “crossed the line” separating permissible from impermissible hypothetical questioning].)
CALJIC NOTE: See FORECITE F 2.82 n2.
F 332 Note 26 Statements By Defendant To Expert Not Admissible For The Truth
Although an expert may rely on hearsay, when the content of such hearsay is admitted into evidence, the jurors may not consider it for the truth of the matter asserted. (People v. Elliot (2005) 37 C4th 453.) For example, hearsay statements considered by an expert, including those relating to mitigation made by the defendant, cannot be considered by the jurors as mitigation at the penalty phase of a capital case. (Ibid.) Nor may they be considered by the judge in ruling on the automatic motion to modify the verdict under PC 190.4(e). (Ibid.)
See also FORECITE F 332 Inst 16.
F 332 Note 27 Theoretical Expert Conclusion Is Not Substantial Evidence
An expert’s testimony as to a theoretical conclusion or inference does not rescue a case that suffers from an underlying insufficiency of evidence to convict beyond a reasonable doubt. (See Smith v. Mitchell (9th Cir. 2006), 437 F3d 884, 890; see also United States v. Boissoneault (2d Cir. 1991) 926 F2d 230, 234.)
F 332 Note 28 Expert May Not Reveal Content Of Reports Prepared By Nontestifying Experts
Expert witnesses are entitled to rely upon reliable hearsay, including the statements of patients and treating professionals, in forming their opinions. (EC 801(b); People v. Campos (1995) 32 CA4th 304, 307-308 (Campos).) However, “[a]n expert may not, on direct examination, reveal the content of reports prepared or opinions expressed by nontestifying experts. ‘”‘The reason for this is obvious. The opportunity of cross-examining the other doctors as to the basis for their opinion, etc., is denied the party as to whom the testimony is adverse.'”‘ [Citations.]” (Campos, at p. 308.)
The Campos court concluded in its case (where the testifying expert relied on other experts in recommending the defendant be committed as a mentally disordered offender) as follows: “Here, the reports of the nontestifying experts were hearsay. [The testifying expert] was properly allowed to testify that she relied upon the reports in forming her own opinions. The trial court erred, however, when it allowed her to reveal their content on direct examination by testifying that each prior medical evaluation agreed with her own opinion. ‘[D]octors can testify as to the basis for their opinion [citation], but this is not intended to be a channel by which testifying doctors can place the opinion of innumerable out-of-court doctors before the jury.’ [Citations.]” (Campos, supra, 32 CA4th at p. 308.)