Sixth Circuit: Trial Judge Should Not Refer To A Witness As An Expert In Front Of The Jury

Circuit suggests steps for providing expert testimony in United States v. Johnson, 488 F.3d 690 (6th Cir. 2007) (No. 05-4277).

It is well-accepted that the trial court has discretion on the manner in which to consider and admit expert testimony. See, e.g., Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999) (“The trial court must have the same kind of latitude in deciding how to test an expert’s reliability, and to decide whether or when special briefing or other proceedings are needed to investigate reliability, as it enjoys when it decides whether that expert’s relevant testimony is reliable.”).

This discretion includes whether a full Daubert hearing should be held before trial. However, in admitting expert testimony, the trial court should avoid telling the jury a particular witness is an expert.

The Johnson case involved a drug distribution prosecution. A law enforcement officer was qualified to provide expert testimony on street-level narcotics dealings based on his prior fourteen years of training and experience. The expert was offered to provide his opinion concerning whether a transaction he observed was a drug deal. After the officer testified about his role in the investigation, the prosecutor asked the trial court “that the witness be identified as an expert in the identification and behavior of street-level narcotics trafficking.” The defense had no objection. The trial court told the jury: “All right. Officer Dews will be accepted as an expert in the area of street-level narcotics transactions and behaviors that accompany that activity.” Johnson, 488 F.3d at 694.

The Sixth Circuit discouraged the practice of the trial court announcing that the witness was determined to be an expert. Of particular concern is that the trial court’s certification of a witness as an expert “lends a note of approval to the witness that inordinately enhances the witness’s stature and detracts from the court’s neutrality and detachment.” Johnson, 488 F.3d at 697 (citing United States v. Bartley, 855 F.2d 547, 552 (8th Cir. 1988) (noting that “[s]uch an offer and finding by the Court might influence the jury in its evaluation of the expert and the better procedure is to avoid an acknowledgment of the witnesses’ expertise by the Court”)). The circuit also noted that the term “expert” should not be used and instead the trial court may refer to the witness as an opinion witness: “‘Except in ruling on an objection, the court should not, in the presence of the jury, declare that a witness is qualified as an expert or to render an expert opinion....’” Johnson, 488 F.3d at 697 (quoting ABA Civil Trial Practice Standard 17 (Feb. 1998)).

The circuit described the preferred approach to admit expert testimony at trial:

“Instead, the proponent of the witness should pose qualifying and foundational questions and proceed to elicit opinion testimony. If the opponent objects, the court should rule on the objection, allowing the objector to pose voir dire questions to the witness’s qualifications if necessary and requested. The court should then rule on the objection, “to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means.”
Johnson, 488 F.3d at 698 (citations omitted). The defense did not object to the expert testimony at trial, so the matter was reviewed for plain error on appeal and none was found. The Sixth Circuit concluded the officer’s testimony was admissible as expert testimony to assist the jury:

“Contact between two people on the street that might appear to the average person to be nothing more that a casual encounter could in fact be detected as a drug transaction by an experienced police officer. Interpreting those artifices, encryptions, codes, and jargon can be helpful to the jury, just as a trained observer on the baseball diamond might be able to point out the bunt sign among an array of otherwise meaningless scratches and touches by the third base coach…. [W]e find that Officer Dews’s opinion that what he saw amounted to a drug transaction was sufficiently helpful and insufficiently intrusive so as not to plainly cross the line into impermissible opinion evidence. Officer Dews did not express his opinion on the defendant’s guilt, or the credibility of other witnesses, or on what the law required. Rather, he told the jury what he saw and what it meant to him as viewed through the lens of his expertise.”
Johnson, 488 F.3d at 699 (citations omitted). The Johnson case focuses on the presentation of the expert testimony at trial before the jury. Separate questions may be raised before trial concerning whether the expert testimony may be admitted at all. Special concerns in using a law enforcement as a dual fact and expert witness were recently noted. Additionally, in jury instructions, the trial court will guide the jury in its consideration of the expert testimony. After the Johnson case, the Sixth Circuit model jury instruction has been modified as follows:

Sixth Circuit
Criminal Pattern Jury Instruction 7.03
(Opinion Testimony)
  1. You have heard the testimony of _______, who testified as an opinion witness.
  2. You do not have to accept _______’s opinion. In deciding how much weight to give it, you should consider the witness's qualifications and how he reached his conclusions. Also consider the other factors discussed in these instructions for weighing the credibility of witnesses.
  3. Remember that you alone decide how much of a witness's testimony to believe, and how much weight it deserves.

Use Note

If the witness testifies to both opinions and facts, a cautionary instruction on the dual role should be given in addition to Instruction 7.03. This situation usually arises when law enforcement witnesses testify. See the discussion in the commentary below.

Committee Commentary 7.03 (current as of December 31, 2007)

The title of Instruction 7.03 and paragraphs (1) and (2) have been amended in the wake of United States v. Johnson, 488 F.3d 690 (6th Cir. 2007) to avoid the term expert. A Use Note has been added to mention the need for an additional cautionary instruction when expert witnesses testify to facts as well as opinions.


Photo Description: Sixth Circuit Court of Appeals, Potter Stewart U.S. Courthouse, Cincinnati, OH. Learn more about the courthouse which was named after U.S. Supreme Court Justice Potter Stewart who served for twenty-three years on the Court.


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