As recently recognized by the United States Supreme Court, the effect of testimony on a jury can be “heightened due to the source of the testimony.” (Buck v. Davis (2/22/2017) ___US___[187 Led 2d 35].) For example, when testimony in a death penalty trial regarding the defendant’s future dangerousness comes from a “medical expert bearing the court’s imprimatur … [r]easonable jurors might well have valued his opinion concerning the central question before them. See Satterwhite v. Texas, 486 U. S. 249, 259, 108 S. Ct. 1792, 100 L. Ed. 2d 284 (1988) (testimony from “a medical doctor specializing in psychiatry” on the question of future dangerousness may have influenced the sentencing jury).” (Ibid.)
Accordingly when the judge uses the term “expert“ in the jury instructions to describe a witness the jury may view this as a judicial comment on the value of the witness which, in turn, may encourage the jurors to give greater weight to the “expert” testimony than it deserves. (See FORECITE, F 101.10 Inst 3 Jurors Not To Take Cue From Judge As Distinct Principle and F 101.10 Inst 4 Jurors Not To Take Cue From Judge Re: Defendant, Counsel.)
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 or her.
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.).)
In the next blog post sample instructions on this issue will be provided.