The Emphasis at PsychLaw.net is that to move the law of expert testimony forward, the cross examiner must be cognizant of these decent tests, but must be aware of the terrible tests for expert qualification as well. Faced with many draconian decisions, attorneys tend to develop a compensating sense of “gallows humor”. With our respect to all those cross examiners who have to endure the sometimes ridiculous and heartbreaking decisions of our trial and appellate courts, we have begun to collect what we refer to as the “wonderfully stupid” expert admissibility tests.
New to this section this year is Indiana, which articulated the “they don’t actually have to know anything” test. In LaPorte Community School Corporation v. Rosales, an Indiana appellate panel opined that, “‘the specific knowledge of an expert witness is neither determinative of the witness’ qualfication as an expert nor the admissibility of his opinion into evidence’”.[1]
In State v. Daly,[2] the Nebraska Supreme Court joined our illustrious list with the “there is no standard” standard. In Daly, a defendant was convicted of driving under the influence of marijuana. The State offered its expert testimony by a police officer who had “completed instruction as a drug recognition expert.”[3] Training involved “a step-by-step procedure to examine various clinical or physiological indicators to determine what drugs a suspect might have used”,[4] somewhat like walk-the-line sobriety testing. What a great place for the “there is no standard” standard.
The Delaware Supreme Court joins our group this year with McNally v. State.[5] In this driving and reckless endangerment case, the Supreme Court of Delaware articulated the “who cares if it’s valid” test. Remember, “validity” determines if we are measuring or describing what we think we are measuring or describing.[6] Here, the Delaware Supreme Court opined that their evidence law “…requires the proffered testimony to provide relevant and reliable principles and methodology. This rule does not require that the conclusions derived from those principles and methods be scientifically valid”.[7]
About seven hundred miles from Delaware, the Wisconsin court of appeals gave us the “who cares if it’s reliable” test. In Hoekstra v. Guardian Pipeline, LLC,[8] the Wisconsin Court of Appeals explained that the underlying theory upon which an expert’s opinion is based doesn’t matter at all.[9] In Ricco v. Riva,[10] the Wisconsin appellate court explained that “…the admissibility of [expert testimony] is not conditioned upon its reliability”. Harkening back to a time before Frye, the court reasoned that expert testimony is admissible if it is merely relevant, the witness is qualified as an expert, and the evidence will assist the trier of fact in determining an issue of fact.[11]
Litigators knowing their jury pools will be saddened by the recently articulated tests in the Carolinas and Mississippi. We at PsychLaw.net feel that arguably, these states have some of the poorest and most under-educated citizens in the fifty states. It is depressing to note that the test articulated for expert testimony in these states courts is the “who cares if you went to school” test in North Carolina;[12] the “know more than the jury” test in South Carolina,[13] and the “experience beyond the average random adult” test in Mississippi.[14]
This “…some, beyond the average random…” test is ostensibly for assessing whether the experience of a proffered expert meets the proper criteria. In Lane v. State,[15] the Mississippi Court of Appeals cited to Sample v. State,[16] and explained that: “…the test to determine whether the opinion of a witness constitutes expert opinion testimony rather than lay opinion testimony is whether the witness possesses some experience or expertise beyond that of the average, randomly selected adult.” [17]
At PsychLaw.net we find that it gets worse for the cross examiner. In Missouri, the “…some qualification…” test was recently articulated. The Missouri Court of Appeals for their Eastern District recently advised that “[i]f the witness has some qualifications, the testimony may be permitted”.[18] And one should not overlook an Oklahoma appellate panel who with absolutely no data whatsoever, no research, no citations to peer reviewed literature, no learned treatises, proclaimed that a social worker’s “power/control wheel” satisfied a reliability and validity analysis.[19]
Not to be outdone in the silliness department, the Supreme Court of North Dakota articulated their “some specialized knowledge” test in State v. Saulter[20] and the “some degree of expertise” test in State v. Streeper.[21] In Streeper, a defendant was convicted of manslaughter and delivery of alcohol to a minor. The Supreme Court affirmed, noting that their evidence law “envisions generous allowance of the use of expert testimony if the witness is shown to have some degree of expertise in the field in which the witness is to testify.”[22] In a state with a difficult bar examination to pass, one would hope for more than a “some experience” test. Not so in Illinois. In Kunz v. Little Co. of Mary Hosp. and Health Care Centers,[23] an Illinois appellate panel articulated the “some experience” test: “expert testimony will be admitted if the expert has some experience and knowledge that is not common to laypersons and his testimony will be of aid to the jury.”[24]
Also in Illinois, an appellate panel developed the “…better than the ordinary person…” test[25]. In People v. Clifton,[26] a defendant and co-defendant were convicted of first degree murder and attempted first degree murder. we at ___ note that during the trial, the prosecution sought to introduce the testimony of a Chicago police officer from the gang unit to testify about a “leadership vacuum” in the “Gangster Disciples” gang.[27] The trial court ruled and the appellate panel affirmed that:
Police testimony regarding gang activity is admissible if (1) it qualifies as expert opinion, (2) it is relevant, and (3) its prejudicial effect does not outweigh its probative value…Regarding the first prong of this test, a witness qualifies as an expert if, “because of his skill, training, or experience, he is better able to form a more accurate opinion as to the matter under consideration than is an ordinary person.”…Specialized formal training is unnecessary, and experience alone can qualify a witness as an expert…[28]
In an interesting qualifier, the appellate panel reasoned that this sort of police expertise is readily acceptable “[s]o long as the testimony is based upon information ‘of a type reasonably relied upon by experts in the field’…”. But the cross examiner must be warned of the problem of creeping hearsay because the appellate panel went on to describe this testimony as allowable “even though the information may not be admissible in evidence”.[29]
This “better than the average bear” way of thinking was also recently upheld in Illinois’ Favia v. Ford Motor Co.,[30] where the Court held that: “[a]n expert need only have knowledge and experience beyond that of an average citizen.” A similar test was articulated by an Illinois appeals court this past year, in Northern Trust Company v. Burandt and Armbrust, LLP, where the court held that, “a person may testify as an expert if his experience and qualifications afford him knowledge that is not common to laypersons…”.[31] Unfortunately, even the Federal courts sometimes make bad decisions along these lines.[32]
At PsychLaw.net we teach that these ill-advised qualifying tests can create some pitfalls for the unwary cross examiner. While it is true, as the Rhode Island Supreme Court recently held, that trial judges “are not required to become scientific experts”,[33] courts must be vigilant for goofy expert testimony.[34] For example, despite numerous courts explaining that social workers are not really experts, in Washington State they can testify about children being “traumatized”.[35] In Georgia, experts are called upon, and then qualified, to testify about “myths”.[36]
With respect to assessing the expert’s professional experience, Georgia has also created the “knowledgeable in a particular matter…” test. In Lanwehr v. State,[37] an appellate panel was confronted with the appeal of a defendant convicted in the trial court of disobeying a traffic control device and driving under the influence of alcohol. During the trial, the prosecutor was questioning the arresting officer about his observation that the defendant’s skin had been “ruddy”. Counsel for defendant objected and the appellate court ruled that: “[t]o qualify as an expert, generally all that is required is that a person be knowledgeable in a particular matter; his special knowledge may be derived from experience as well as study, and formal education in the subject is not a requisite for expert status.”[38]
We at PsychLaw.net note that the Supreme Court of Connecticut recently articulated the “…not common to the average person…” test.[39] In State v. West, the defendant was convicted after a jury found her guilty of capital felony murder, criminal attempt to commit murder, felony murder, two counts of injury to a child, first-degree assault, and first-degree burglary. She was sentenced to life imprisonment without possibility of release plus 70 years. In confronting the defendant’s claim concerning improperly qualified and admitted expert testimony, the court explained that in Connecticut expert testimony should be admitted when: “(1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues”.[40] Connecticut has continued down this wrongheaded path, articulating last year two ridiculous tests. First, it used the “not common to the world test, holding in Baranowski v. Safeco Insurance Company of America that the relevant issue when it comes to admitting expert testimony is, “…whether the witnesses offered as experts have any peculiar knowledge or experience, not common to the world…”.[41] Several months later, it articulated the equally stupid “beyond the ken…” test in DiPietro v. Farmington Sports Arena, LLC, where it held that, “‘[t]he general standard for admissibility of expert testimony in Connecticut is simply that the expert must demonstrate a special skill or knowledge, beyond the ken on the average juror…”[42]
An appellate panel in Ohio created the “ I’ve done some reading “ test. In State v. Parks, [43] a physician certified in pediatrics and neonatal medicine testified at trial regarding his particular qualifications pertinent to preparing a profile on a child abuser. This doctor stated that he had a continued interest in child abuse issues and that he was able to speak on the profile of a child abuser, as he has done reading on the subject.[44] Further, according to the doctor, “profiles” have been discussed at length at many of the courses he has attended on Shaken Baby Syndrome.[45]
In a recent Florida Shaken Baby Syndrome case, a professional experience based witness blurted out from the witness stand during direct testimony that there were three or four treatises that would back up the testimony. The witness should have saved it for cross examination. Reversed, improper bolstering.[46]
Footnotes
[1] 936 N.E.2d 281, 287 (Ind.Ct.App. 2010), citing to McIntosh v. Cummins, 759 N.E.2d 1180, 1185 (Ind.Ct.App. 2001).
[2] 278 Ne. 903, 775 N.W.2d 47 (Nebraska 2009).
[3] Id. 278 Ne. 903, 907.
[4] Id. 278 Ne. 903, 910.
[5] 980 A.2d 362 (Delaware 2009).
[6] See: “A Behavioral Science Glossary” in Lorandos, D. & Campbell, T: (2005) Benchbook in the Behavioral Sciences – Psychiatry – Psychology – Social Work – Carolina Academic Press, Durham, North Carolina.
[7] 980 A.2d 362, 370 (Delaware 2009).
[8] 726 N.W.2d 648 (Wisconsin App. 2006).
[9] Id. 726 N.W.2d 655: The reliability of an expert’s testimony is a credibility determination to be made by the fact finder. Evidence given by a qualified expert is admissible regardless of the underlying theory.
[10] 266 Wisconsin 2d 696; 669 N.W. 2d 193 (2003)Court of Appeals of
Wisconsin.
[11] 266 Wisconsin 2d 696, 709. Citing State v. Peters, 192 Wis.2d 674; 534
N.W.2d 867 (Ct.App.1995).
[12] Howerton v. Arai Helmet, LTD., 358 N.C. 440, 597 S.E.2d 674 (2004) “ As pertains to the sufficiency of an expert’s qualifications, we discern no qualitative difference between credentials based on formal, academic training and those acquired through practical experience. . [A] jury may be enlightened by the opinion of an experienced cellar-digger, or factory worker, or shoe merchant…” 358 N.C. at 462; 597 S.E.2d at 688.
[13] State v Douglas, 367 S.C. 498, 626 S.E.2d 59, 64 (South Carolina App. 2006) “For a court to find a witness competent to testify as an expert, the witness must be better qualified than the fact finder to form an opinion on the particular subject of the testimony.” This case involved alleged child abuse and hearsay. The defendant complained that the state “expert” one Gwen L. Herod, was allowed to testify about her forensic interview of a child and to “bolster” the child’s hearsay to the police. In almost eleven thousand words, cross examination is mentioned only twice. There is only one indication of cross examination with the State’s “expert”: that Ms. Herod had no formal college degree. And see: Crawford v Henderson, 356 S.C. 389; 589 S.E. 204 (2003). Citing to Mizell v. Glover, 351 S.C. 392, 406, 570 S.E.2d 176, 183 (2002), the court ruled that “..for a court to find a witness competent to testify as an expert, the witness must be better qualified than the jury to form an opinion on the particular subject of the testimony.” 589 S.E. 204, 212.
[14] Daughtry v Kuiper, 852 So.2d 675, 2003 WL 1961797 (Miss.App.) Citing to Stanton v. Delta Regional Medical Center, 802 So.2d 142 (4,5) (Miss.Ct.App.2001) The court ruled “In order to qualify as an expert, a person ‘must possess some experience or expertise beyond that of the average, randomly selected adult.’” 852 So.2d 675, 679.
[15] 841 So.2d 1163 (2003).
[16] 643 So.2d 524, 529 (Miss.1994).
[17] 841 So.2d 1163, 1167.
[18] State v Blakey, 203 S.W.3d 806, 816 (Missouri App. 2006) Expert testimony should be admitted if the witness possesses “some qualification.” And see: In re Care and Treatment of Whitnell v State, 2004 WL 419794, page 2 (Mo.App. E.D.) citing Kell v. Kell, 53 S.W.3d 203, 209 (Mo.App.2001). emphasis added Not surprisingly, In re Care and Treatment has not been released for publication. See, also: State v. Campbell, 143 S.W.3d 695, 2004 WL 2032150 (MO.App. W.D.)) (2004) Where the appellate court determined that with no objective data, no information but subjective experience, a police officer was an expert and could testify that “. . .a sexually abusive relationship between family members typically progresses and . . .could possibly progress to the parent using pornography to desensitize the child.” 143 S.W.3d at 702-703; 2004 WL 2032150, at pg 6. AND see: Strong v. American Cyanamid Co., — S.W.3d —-, 2007 WL 2445938 (Mo.App. E.D. 2007) This opinion has not been released for publication in the permanent law reports. “If the witness has some qualifications, the testimony may be permitted. Significantly, the extent of an expert’s training or experience goes to the weight of his testimony and does not render the testimony incompetent.” Page 23.
[19] Harris v. State, 84 P 3d. 731,747 (2004). Note – Stephenson v. Oneok Resources Co., 99 P.3d 717, (Okla.Civ.App., 2004): “In Christian v. Gray, 2003 OK 10, 65 P.3d 591, 594 (2003) the Oklahoma Supreme Court adopted the procedure set forth in Daubert and Kumho Tire Co… as appropriate for determining the admissibility of expert testimony”
[20] 764 N.W.2d 430 (Sup. Ct. of North Dakota 2009).
[21] 727 N.W.2d 759 (Sup. Ct. of North Dakota 2007).
[22] Id. 727 N.W.2d 763-764 citing their own – – State v. Hernandez, 2005 ND 214, ¶ 8, 707 N.W.2d 449 emphasis added.
[23] 373 Ill.App.3d 615, 869 N.E.2d 328 (Ill.App. 1 Dist.,2007).
[24] Id. 869 N.E.2d 337 emphasis added.
[25] Sort of like Yogi Bear “Ah…better than the av-er-age bear!”
[26] 342 Ill. App. 3d 696; 795 N.E.2d 887 (2003).
[27] Id. 795 N.E.2d 887, 890.
[28] 795 N.E.2d 887, 897. internal citations omitted.
[29] 795 N.E.2d 887, 897. internal citations omitted. See, also: In re Robert S.,341 Ill. App.3d 238; 792 N.E. 2d 421 (2003): “There is no precise requirement as to how the expert acquires specialized knowledge or experience.” 792 N.E. 2d 421, 433 internal citations omitted.
[30] 381 Ill.App.3d 809 (Illinois App. 2008).
[31] 933 N.E.2d 432, 444 (Ill. App. 2010)
[32] Brill v. Marandola, 540 F.Supp.2d 563 (E.D. Penn. 2008). “…a proffered expert witness must possess skill or knowledge greater than the average layman.” 540 F.Supp.2d 563, 566.
[33] In re Mackenzie C., 877 A.2d 674, 685 (Rhode Island Supreme Court 2005).
[34] See infra section on examples from State and Federal Courts as well as discussion of the particular problems for cross examiners in Texas and California.
[35] State v. Perez, 137 Wash.App. 97, 151 P.3d 249 (Wash.App. Div. 3, 2007).
[36] Harris v. State, 283 Ga.App. 374, 641 S.E.2d 619 (Georgia App. 2007)
[37] 2004 WL 178578 (Georgia App.).
[38] Id. 2004 WL 178578 Page 3.
[39] State v West, 274 Conn. 605, 877 A.2d 787 (Supreme Court of Connecticut 2005).
[40] Id. at 274 Conn. 630, 877 A.2d 805.
[41] 199 Conn.App. 85, 95 986 A.2d 334, 341 (Conn.App. 2010), citing to State v. Banks, 117 Conn.App. 102, 115-16, 978 A.2d 519.
[42] 123 Conn.App. 583, 613, 2 A.3d 963, 983 (Conn. App. 2010), citing to Davis v. Margolis, 215 Conn. 408, 416-17, 576 A.2d 489 (1990).
[43] 2004 WL 1718169 (Ohio App. 3 Dist.)) (2004).
[44] Id.
[45] At least he wasn’t in Florida where a defendant cannot get an analysis of the prosecution’s syndrome evidence. Herlihy v. State, 927 So.2d 146 (Florida App. 2006): “expert opinion testimony which is based on an expert’s personal experience and training is not subject to Frye testing. Therefore, a diagnosis based on an expert’s opinion and experience, versus a specific scientific test, would not be subject to a Frye hearing.” at 147.
[46] In re S.E., 946 So.2d 620 (Fla.App. 2 Dist., 2007) The Department of Children and Family Services filed a petition to terminate parental rights after a child was treated for injuries allegedly caused by being shaken. The Court denied the petition, but found dependency as to the mother and father. The Department appealed, and the father cross-appealed. The District Court of Appeal, held that father’s expert presented inadmissible testimony, requiring a new trial. The Court reasoned “an expert cannot bolster his or her testimony by testifying that a particular treatise supports an opinion.” 946 So.2d 622 citing to Linn v. Fossum, 946 So.2d 1032, 1036, 2006 WL 3093186 (Fla. Nov. 2, 2006).