SERIES 300 EVIDENCE
F 360 Statements To An Expert
TABLE OF CONTENTS
F 360 Inst 1 Use Of The Term “Expert” As Improper Comment On The Evidence
F 360 Inst 2 Jurors Must Not Speculate About Truth Of Statements Relied On By Expert
Return to Series 300 Table of Contents.
F 360 Inst 1 Use Of The Term “Expert“ As Improper Comment On The Evidence
*Modify CC 360, sentence 1 as follows [added language is underlined; deleted language is stricken]::
___________<Insert name> testified that in reaching (his/her) conclusions as an expert a witness, (he/she) considered [a] statement[s] made by ___________ <insert name>.
*Modify sentence 3 as follows [added language is underlined; deleted language is stricken]:
You may consider (that/those) statement[s] only to evaluate the expert’s witness’s opinion.
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 himC 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.
See also FORECITE F 101.10 Inst 4.
F 360 Inst 2 Jurors Must Not Speculate About Truth Of Statements Relied On By Expert
*Modify CC 360, sentence 4 as follows [added language is underlined; deleted language is stricken]:
Do not consider (that/those) statements as proof that speculate about whether or not the information contained in the statement[s] is true.
Points and Authorities
CALCRIM 360 erroneously implies that the jurors can consider the truth of the information in the statements as long as they don’t rely on the statements to do so.
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.
