Circuit Withdraws Problematic Assessment of FRE 701 Lay Testimony

In "sua sponte vacat[ing] and reconsider[ing] our original opinion," Eleventh Circuit "substitute[s]" one that still affirms trial judge's finding of no Lanham Act false advertising liability of defendant ecumenical "Order of St. John" to plaintiff religious "Order of St. John," but the new opinion is now unanimous, adopting the position previously stated by the dissent, that admitting testimony by the "current head" of the defendant ecumenical order as a lay witness on "the accuracy of two competing versions of late-eighteenth-to-early-nineteenth century history" was erroneous but the error was harmless, in Sovereign Military Hospitaller Order of Saint John of Jerusalem of Sovereign Military Hospitaller Order of Saint John of Jerusalem of Rhodes and of Malta v. Florida Priory of Knights Hospitallers of Sovereign Order of Saint John of Jerusalem, Knights of Malta, Ecumenical Order, __ F.3d __ (11th Cir. Dec. 11, 2012) (No. 11–15101)

In the blog essay "Inappropriate Testimony Regarding Organization's History" published in the Federal Evidence Blog on November 2, 2012, we noted an Eleventh Circuit opinion in which the majority seemed to quibble about whether an error had occurred when the trial judge in a false advertising bench trial admitted lay historical testimony in order to "adjudicat[e] the accuracy of two competing versions of late-eighteenth-to-early-nineteenth century history" of contesting charitable organizations.

In reconsidering its position, the previously divided circuit panel is now united. The panel seemed to explicitly adopt the assessment made by dissenting judge, Judge Pryor, in the superseded opinion in the case. In that dissent, Eleventh Circuit Judge Pryor noted that testimony by the head of the defendant organization should not have been admitted since he was not shown to be qualified under the FRE 602 personal knowledge requirement, the FRE 701 personal perception requirement, or the FRE 702 expert testimony reliability requirement.

Unlike the previous position taken by the court in its September opinion on the matter, the unanimous panel in December now "acknowledge[d] that the district court erred when it permitted [defendant's witness] to testify about historical matters." This conclusion was a result of the circuit's assessment that the witness lacked the personal knowledge required under FRE 602, or the FRE 701 requirement of having perceived the facts on which one testifies. This left admission as an expert under FRE 702 -- but no assessment had been made as to the witness's reliability during the trial. The circuit noted that given these limitations, the witness "should have been qualified as an expert witness" before his testimony was admitted into the record. The failure to do so was erroneous.

Most dramatically, the superseding opinion of December 11 lacked statements from the September 22 version that could have opened the door to the possibility that a "head of an organization" would be competent "to testify about the history of the organization, especially when the opposing party had the opportunity to fully cross-examine and challenge his credibility on all aspects of his testimony." This language seemed to suggest a method of admission of testimony at trial based in measure of the position the witness held rather than whether the witness meets the requirements of FRE 602, FRE 701, and FRE 702.

The superseding opinion puts this possibility to rest, without altering the legal results reached in the case. The circuit's December iteration unambiguously concludes that the trial court had abused its discretion in considering the witness's testimony, but the error was harmless.

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