The “Helpfulness” To Jury Requirement Of Lay And Expert Opinion Testimony

In child pornography prosecution, detective’s lay or expert testimony that images on the defendant’s computer media satisfied the legal definition of child pornography was not helpful to the jury since it was only a “bare conclusion”; however its admission was not plain error based on the defense concession in closing argument that the photos were pornographic and that the defense only denied producing the photos, in United States v. Noel, 581 F.3d 490 (7th Cir. Sept. 4, 2009) (No. 07-2468)

The admission of opinion testimony under FRE 701 or FRE 702 involves different requirements. Lay testimony under FRE 701 must be based on personal knowledge, while FRE 702 testimony must be founded on the expert’s scientific, technical, or other specialized knowledge. Despite this difference, one requirement shared by both types of testimony is the requirement that the testimony must “assist the trier of fact” (FRE 702), or be helpful to “a clear understanding” of the issues (FRE 701(b)). In a recent case, the Seventh Circuit explored the helpfulness requirement inherent in both rules, suggesting that the requirements were the same.

In the case, defendant Noel was charged with producing pornographic images of his step-nephew during his supervision of the minor. He was discovered when the search of a pornography suspect’s computer revealed logs from chat sessions with the defendant in which production of photographs of the minor was mentioned. After a search warrant was executed at the defendant’s house, police seized “several pieces of computer media. The hard drive of Noel’s computer and several computer disks contained photographs organized into many folders, including one labeled ‘H,’ which held photos that portrayed H [defendant’s step-nephew] nude and asleep.” Noel, 581 F.3d at 493.

At trial, the prosecution presented as a witness a state police detective Barnes “who had conducted the forensic examination on the computer media seized from Noel’s residence. Barnes explained that she found numerous images that met the federal definition of child pornography ... on Noel’s computer system.” Specifically, the witness “stated that the government’s Exhibit Four contained the photos on Noel’s computer that met the federal definition of child pornography.... All in all, Barnes opined at least six times during her testimony that the charged photos were pornographic.” Noel, 581 F.3d at 494. The jury convicted the defendant. On appeal, he assigned as error the testimony of detective Barnes as including “an impermissible legal conclusion that the government’s exhibits met the federal definition of child pornography.”

The Seventh Circuit agreed with the defendant that the testimony was improper. The detective’s testimony was deficient because “[s]he provided no explanation for this opinion, but instead offered only conclusory statements.” Noel, 581 F.3d at 496. In reaching this result, the circuit noted the helpfulness requirement that applied to both lay and expert testimony - “testimony must be helpful to the trier of fact under either rule” noted the circuit. In the case of opinion evidence offered under FRE 701(b), this involves the requirement that the opinion be “helpful to a clear understanding” of the testimony. This requirement reflects the rule’s design that “a lay witness’s purpose is to inform the jury what is in the evidence, not to tell it what inferences to draw from that evidence.”

The detective’s testimony failed this requirement because it offered a legal conclusion. “We have held repeatedly that lay testimony offering a legal conclusion is inadmissible,” noted the circuit, “because it is not helpful to the jury, as required by Rule 701(b).” Noel, 581 F.3d at 494 (citing United States v. Wantuch, 525 F.3d 505, 514 (7th Cir. 2008) (The question of whether the defendant knew his actions were legal “demanded a conclusion as to the legality of [the defendant’s] conduct, which is unhelpful to the jury under Rule 701.”); United States v. Espino, 32 F.3d 253, 257 (7th Cir. 1994) (“[T]he question posed to Espino, ‘[Y]ou’re admitting the conspiracy, aren’t you,’ required a conclusion regarding the legal implications of his conduct. Espino’s lay answer to this question was therefore objectionable as being unhelpful opinion testimony and should have been excluded.” (second alteration in original)).

In the alternative, the prosecution argued that the detective’s evidence had been admitted as expert evidence under FRE 702. The circuit found that the helpfulness requirement still was not satisfied: “[E]ven if Barnes was properly qualified as an expert, her testimony does not pass muster under Rule 702 because it was no more helpful as expert testimony than it would have been as lay testimony.” Noel, 581 F.3d at 497 (footnote omitted). This was because the detective “gave no basis whatsoever for her conclusion that the images on Noel’s computer were child pornography under the federal definition.”

As a result, the opinion could not help the jury as “an expert’s opinion that lacks proper substantiation” is “worthless.” Noel, 581 F.3d at 497 (citing Minasian v. Standard Chartered Bank, 109 F.3d 1212, 1216 (7th Cir. 1997) (“An expert is entitled to offer a view on the ultimate issue … but an expert’s report that does nothing to substantiate this opinion is worthless, and therefore inadmissible.”); Mid-State Fertilizer Co. v. Exch. Nat’l Bank of Chi., 877 F.2d 1333, 1339 (7th Cir. 1989) (“An expert who supplies nothing but a bottom line supplies nothing of value to the judicial process.”).

The deficiency of the detective’s opinion testimony as an expert was apparent. The circuit explained that the essence of the detective’s opinion testimony was that:

“the photos met the definition of child pornography ... a bare conclusion that provided nothing but the bottom line, i.e., that Noel possessed illegal photos. Had Barnes provided some basis for this explanation, perhaps her testimony would have been of some use for the jury. But she did not do so. She, in essence, told the jury nothing more than, ‘I am familiar with the definition of child pornography, and this meets that definition because I said so.’ Regardless of whether Barnes was an expert [or lay witness], she could not ‘merely tell the jury what result to reach.’”
Noel, 581 F.3d at 497 (footnote omitted).

However, at trial the defendant failed to object to the detective’s opinion testimony, so the issue was considered under a plain error standard. The circuit declined to find plain error because “[w]e are convinced that Noel would have been convicted even if Barnes had not been allowed to testify improperly, and, therefore, reversal is not warranted.” Noel, 581 F.3d at 498. In particular, the circuit noted that the defendant’s attorney had conceded during closing argument that the photos were pornographic and tried to shift the jury’s attention from their content, to the evidence of whether they were produced by the defendant.

The Noel case sets out an analysis all too often lost in the admission of opinion testimony at trial – that the opinion testimony must be helpful to the factfinder. Noel confirms that the requirement is the same, whether the witness offers the opinion as a lay witness or as an expert witness.

Federal Rules of Evidence