Expert Witness vs. Expert Testimony

In conspiracy to commit securities fraud prosecution, trial judge did not err by failing to designate a witness as an “expert” because the “determination that a witness is an expert is not an express imprimatur of special credence," given by the court. Rather, "it is simply a decision that the witness may testify to matters concerning 'scientific, technical, or other specialized knowledge,'” under FRE 702, in United States v. Laurienti, __ F.3d __ (9th Cir. June 8, 2010) (Nos. 09-50081, 07-50365, 07-50240, 07-50367, 07-50358)

FRE 702 specifies both a type of witness and a type of testimony offered by that witness. The Ninth Circuit has been quite emphatic about this distinction. The circuit has occasionally assessed a witness's "mantel of an expert" under FRE 702. But it is more than the simple designation of “expert” that provides this witness a significance in a case. Although a witness may testify as under Rule 701 as a lay witness, this does not disqualify their testimony under Rule 702 as an expert witness as well. This tends to occur when a court admits a the witness’ testimony under Rule 701 and it later appears to have included what is essentially Rule 702 testimony. The same witness may provide the court evidence under Rule 701 drawn from personal perception of the underlying events, as well as to provide under Rule 702 an opinion. See United States v. Mendoza, 244 F.3d 1037, 1046-47 (9th Cir. 2001) (even if witness’ lay testimony was an error in providing an opinion about whether defendant threatened airplane safety, the testimony was harmless because it would have been admissible as “expert” testimony when it was clear from the record that the witness was qualified to give such testimony).

Lay testimony that veers into an area of expert opinion may not be error if the record discloses that the witness would also have been qualified to testify as an expert. But the same is not true of the converse. Inherent problems arise if a witness is qualified as an expert and that witness’ evidence is presented to the jury as that of an “expert” when in reality the testimony provided is in the nature of lay testimony. See White v. Ford Motor Co., 312 F.3d 998, 1008-09 (9th Cir. 2002) ("A layman, which is what an expert witness is when testifying outside his area of expertise ought not to be announced with authority as a court-approved expert witness for what is essentially a lay opinion.”; not deciding issue because case was reversed on other grounds) (emphasis added).

In a recent case the Ninth Circuit briefly revisited the tension between the label of a witness as one who provides testimony in the nature of an expert and one who is recognized as having particular types of expertise. In the case, defendant Laurienti and other colleague stock brokers were charged with conspiring in a securities fraud “pump and dump” scheme. In early proceedings, some defendants admitted their guilt, but this left in the dock the defendants who “conceded that a fraudulent scheme existed but argued that they had not joined the conspiracy or engaged in fraudulent acts; rather, they were innocent brokers selling stocks to their clients.... The jury found otherwise and convicted [the] Defendants on all counts.” The defendants appealed and one ground they urged as error at trial was that the court did “not permit[] defense witness Paul Meyer to testify as an expert.”. Laurienti, __ F.3d at __.

As explained by the circuit:

“ Defendants offered Meyer as an expert on the securities industry. Meyer had worked in a wide variety of positions for 26 years in the securities industry-all of that time at a large firm, Smith Barney, and its predecessors. He had recently retired and started his own expert witness consulting business. He had never testified as an expert in federal court, but he had testified at several administrative proceedings and once in state court. He did not have any specialized degrees and had not written any publications.

“The district court denied Defendants' request that Meyer be permitted to testify as an expert witness. The court held that Meyer could testify as a 'summary' witness but that he could not testify to ultimate conclusions. When pressed on the limits of permissible testimony, the court held that it would issue question-specific rulings as Meyer testified. When Meyer testified, the district court permitted many of Defendants' questions, but it also sustained some of the government's objections.

“To the extent that Defendants argue that the district court abused its discretion by failing to describe Meyer as an “expert” in front of the jury, we disagree. The determination that a witness is an expert is not an express imprimatur of special credence; rather, it is simply a decision that the witness may testify to matters concerning “scientific, technical, or other specialized knowledge.” Fed.R.Evid. 702. For example, the Ninth Circuit Manual of Model Criminal Jury Instructions includes an instruction admonishing the jury to consider expert witness testimony “like any other testimony.” 9th Cir.Crim. Jury Instr. 4.17. It is the scope of testimony excluded by the district court that we must examine, not the court's nominal decision not to label Meyer an 'expert.'”
Laurienti, __ F.3d at __.


The circuit's analysis of the testimony provided by the witness brought it to the conclusion that the trial court erred, but that the error was harmless. This was because “[u]nlike in many cases, where the district court prohibits all testimony by a proffered expert, the district court here permitted testimony by Meyer on a wide range of topics and sustained objections only to a limited set of questions. Most of the excluded testimony here pertained to the NASD rules and to Defendants' failure to disclose bonus commissions. As an initial matter, we note that Meyer was permitted to testify to a large extent on those topics, even though some questions were disallowed. Even if Meyer had testified in response to all questions and even if his testimony had fully convinced the jury that the failure to disclose bonus commissions was a common practice in the industry and consistent with NASD rules, the government introduced strong and convincing evidence of many other theories of guilt.” Laurienti, __ F.3d at __.

Since the 1990s the Ninth Circuit has developed Model Jury Instructions which touch upon the appearance of an expert witness at trial. For example:

  • 9th Cir. Crim. Jury. Instr. 4.17 (2003) (Opinion Evidence, Expert Witness)

    "You have heard testimony from persons who, because of education or experience, are permitted to state opinions and the reasons for their opinions.

    "Opinion testimony should be judged just like any other testimony. You may accept it or reject it, and give it as much weight as you think it deserves, considering the witness’ education and experience, the reasons given for the opinion, and all the other evidence in the case."
  • 9th Cir. Civ. Instr. 3.7 (2001) (Opinion Evidence, Expert Witnesses)

    "You have heard testimony from [a] person[s] who, because of education or experience, [is] [are] permitted to state opinions and the reasons for those opinions.

    "Opinion testimony should be judged just like any other testimony. You may accept it or reject it, and give it as much weight as you think it deserves, considering the witness’ education and experience, the reasons given for the opinion, and all the other evidence in the case."

The Jury Committee recommends that these instructions “be given only upon request” because expert testimony “is so common in modern jury trials, there is no good reason why it should be treated differently from other testimony.” 9th Cir. Civ. Jury Instr. 3.7 comment (2001).

Federal Rules of Evidence
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