Excluding Expert Testimony For Failure To Satisfy FRE 702's Helpfulness Requirement

In civil rights action based on fatal shooting, expert testimony on whether the plaintiff possessed a firearm based on review of surveillance tape “would not have assisted the jury but rather would have told it what result to reach,” in Lee v. Anderson, _ F.3d _ (8th Cir. Aug. 12, 2010) (No. 09-2771)

The key to admitting expert testimony, under FRE 702, is providing specialized knowledge or experience that assists the finder of fact in deciding the facts of the case. This essential role of the expert was recently noted by the Eighth Circuit.

The excessive force civil rights action was brought by the heirs of plaintiff Lee against Minneapolis Police Officers and the City of Minneapolis following Lee’s death. Two officers on patrol noticed some young men riding bicycles near a school. As the marked car approached, two men rode away. The squad car’s lights were activated. One officer saw Too Xiong hand an object to Fong Lee. This officer alerted, “He’s got a gun.” The officers pursued. During an extensive chase, Officer Anderson asked Lee to drop the gun. A couple of times, Lee turned and faced the officer, who feared for his life and believed that Lee possessed a gun. Lee was ultimately shot multiple times and killed. A Russian-made Baikal .380 caliber semi-automatic pistol was found a few feet away from Lee’s hand. Portions of the incident were recorded by three school surveillance cameras.

Before trial, the defendants moved to exclude defense expert testimony on whether the plaintiff had a gun in his hand based on the surveillance film. The defense expert had “used digital video recording and processing technology to increase the contrast of the video images captured by the surveillance camera” and concluded that Lee did not possess a firearm in his right hand. The expert explained that the “methods and principles he used to interpret images” was “simple observation.” Lee, _ F.3d at _. The trial court granted the motion to exclude the expert testimony after concluding that “the jury does not need assistance in determining whether they can see a gun or any other object in the decedent’s hand,” and that the expert “based on his observation of the video— ... did not employ any technique or utilize any specialized skill that is unavailable to the jury.” Lee, _ F.3d at _ (quoting district court’s ruling). The trial court allowed the expert to testify about “how he modified the video and how those modifications might assist the jury.” At trial, the plaintiff argued that Lee did not possess a gun; the firearm had been planted; and there was no reason to use excessive force. The defendants countered that the officer reasonably feared for his life under the circumstances. The jury returned a verdict for the defendants. On appeal, the plaintiff challenged the exclusion of the expert testimony.

The Eighth Circuit affirmed. The proponent of the expert testimony failed to show it would assist the jury in understanding the evidence and deciding the facts of the case. As the circuit explained:

The opinion would not have assisted the jury but rather would have told it what result to reach. Dierks explained in his deposition that the first method he uses to interpret images is “simple observation.” He compared the images and considered the position of Fong Lee’s hand, the size of the objects, and the shadows. When asked what specialized knowledge he had to assist the jury in deciding what the clarified images show, Dierks responded, “I believe that a reasonable person looking at the clarified photograph and looking at Fong Lee’s hand would conclude that his hand does not have a firearm in it.” Although Dierks testified that his experience and training allow him to look at an image more critically than a lay person, the jury was entirely capable of analyzing the images and determining whether Fong Lee had anything in his hands.

McKnight ex rel. Ludwig v. Johnson Controls, Inc., 36 F.3d 1396, 1408 (8th Cir. 1994) (“The touchstone for the admissibility of expert testimony is whether it will assist or be helpful to the trier of fact.”)).

The Lee case underscores the role of the helpfulness requirement under FRE 702. The Supreme Court has also noted this requirement. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 591 (1993) (expert testimony assists trier of fact if it provides information beyond the common knowledge); see also General Electric Co. v. Joiner, 522 U.S. 136, 143 (1997) (trial court determination of whether Rule 702 testimony will assist trier of fact is reviewed for abuse of discretion). In Lee , the failure to show how specialized knowledge would assist the jury resulted in exclusion of the expert testimony.

Federal Rules of Evidence