When An Expert Witness Opines On His Or Her Own Expertise

Defense expert testimony properly excluded under FRE 702 when expert admitted he lacked formalized training or experience necessary to explain the issues he was called to testify upon, in United States v. Lee, 502 F.3d 691 (7th Cir. Sept. 17, 2007) (No. 06-1820), cert. denied, 552 U.S. 1219 (2008)

FRE 702 sets out factors a trial court should consider when determining an expert’s qualification to testify. A witness is “qualified as an expert by knowledge, skill, experience, training, or education.” FRE 702. In many courts, the “test for exclusion is a strict one, and the purported expert must have n[one]” of the five qualifications the rule requires. What role is played in assessing such factors by the proffered expert's assessment of the scope of his own expertise? Several years ago the Seventh Circuit considered a case that directly posed the question of the role of an expert's own self-evaluation. That case, United States v. Lee , 502 F.3d 691 (7th Cir. Sept. 17, 2007) provides an instructive example of the probing the extent of relevant “expertise” to the facts and issue in contention in a case.

In the case, Defendant Lee was arrested after the police received complaints of gunshots coming from a white Ford Taurus. Officers who heard the message while on patrol stopped a white Ford Taurus. Its driver, defendant Francis, got out of the car with a black gun and fled and was pursued. Defendant Lee, who was a passenger in the car, got out and when ordered to stop, the officer saw him holding a white head-covering cloth (“do-rag”) in one of his hands. The defendant obeyed orders to lie on the ground, was handcuffed and then placed in the back of the police vehicle while the arresting officer went to the aid of his colleague on the chase for Francis. While the chase for driver Francis continued, another officer arrived at the scene and saw Lee’s white do-rag on the ground but nothing under it.

When the officer who arrested the defendant returned, he saw a handgun was partially covered by the do-rag. He had not searched the defendant nor the surrounding area prior to placing the defendant in the police car and pursuing the driver. The officer took photographs of the gun and do-rag and another officer picked up the gun and disarmed it. A partial print was recovered from the firearm, which was adequate for comparison but insufficient to make an identification.

At trial, the defendant stipulated that he had been convicted of a prior felony but claimed the gun did not belong to him. Evidence was presented that there was gunshot residue on the cuff of the defendant’s jacket at the time of arrest. At trial, the defense offered the testimony of an expert (Hill) concerning the gun shot residue and fingerprints. The trial court concluded the proffered expert “lacked the experience and training necessary to assist the jury in understanding how gunshot residue can transfer from one surface to another and how gunshot residue found only on the right cuff of Lee’s jacket suggests that he had not recently fired a gun.” The expert also admitted a lack of experience in the field of fingerprint identification. With the exclusion of this expert evidence, the jury ultimately convicted the defendant and he appealed to the Seventh Circuit.

The circuit affirmed the exclusion of the defense expert, even though it noted that the expert's background included “an associate degree in police science,” 14 years as a law enforcement officer, and that he had “started his own business that focused on homicide scene reconstruction.” Lee, 502 F.3d 698. The circuit agreed that the defense expert lacked sufficient qualifications to opine about the transfer of gunshot residue. His inexperience became clear during voir dire when he “testified that he had never been asked to conduct testing for purposes of ascertaining the properties or characteristics of gunshot residue and that he had neither the training nor experience necessary to conduct the actual testing of an object for the presence of gunshot residue.” Lee, 502 F.3d 698.

The same witness could not competently serve as an expert on the partial fingerprint found on the gun that police claimed the defendant possessed and why the partial print was not suitable for comparison (in order to exclude certain groups of people as possible sources of the partial print). The circuit noted that the witness:

[L]acked the experience and training necessary to assist the jury in understanding how gunshot residue can transfer from one surface to another and how gunshot residue found only on the right cuff of Lee's jacket suggests that he had not recently fired a gun. We agree. Hill testified that he had never been asked to conduct testing for purposes of ascertaining the properties or characteristics of gunshot residue and that he had neither the training nor experience necessary to conduct the actual testing of an object for the presence of gunshot residue.

We also agree with the district court's refusal to allow Hill to testify that the partial fingerprint found on the recovered gun was unsuitable for comparison. Hill was not a qualified expert; he had no formalized training or experience in the analysis of fingerprints. Hill admitted during voir dire that he did not have the necessary experience to render an opinion as to whether the latent print lifted from the handgun was suitable for comparison.

Because Hill was not qualified as either a gunshot residue or fingerprint expert, the district court did not err in barring his testimony.
Lee, 502 F.3d 698.


Essentially, because the expert witness conceded during voir dire to his lack of expertise, the courts took him at his word and excluded his testimony.

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