Circuit Consensus: Excluding Expert Opinion Testimony On Witness Credibility

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With expert testimony admitted on a wide range of issues under FRE 702, what limits are there to expert testimony on the credibility of the defendant? As noted by the Tenth Circuit, a consensus in disallowing this expert testimony has emerged among the circuits; plain error resulted from the admission of this expert testimony requiring reversal of the conviction, in United States v. Hill, _ F.3d _ (10th Cir. April 28, 2014) (No. 12-5154)

One area of expertise may involve determining whether a witness is credible. Certain specialized training and techniques have been developed to gauge the credibility of a witness during an interview. While this expertise may be useful and employed during an interview, it is generally inadmissible at trial under FRE 702. The Tenth Circuit reviewed and reinforced its exclusion of such expert testimony, finding such exclusion the practice of other circuits as well. While there was no objection lodged at trial to the expert testimony, the circuit found the admission of this expert testimony constituted plain error.

Defendant's Interrogation

In the case, defendant Hill and his brothers were charged with regard to a bank robbery. After the perpetrators left the scene of the crime, a GPS device that tellers had placed with "bait bills" allowed law enforcement to monitor the locations and movements of the money. Ultimately, the police were able to track where the get-away car had gone and followed the GPS signals to the defendant's "residence at 1107 East Pine" in Tulsa, Oklahoma, which belonged to the defendant's father. Hill, __ F.3d at __.

The defendant was arrested when he exited the house two hours after the police had begun their surveilance of the location. After the arrest, case agent Jones "conducted a videotaped interview" with the defendant. During the interview, the defendant denied any involvement in the robbery. He contended that he had been asleep at his father's house, although "he planned to watch his stepsister, who was going to be dropped off ... sometime that morning" and that he had not left the house during the morning. Hill, __ F.3d at __. However, he was unsure of the step-sister's exact age, stating that she was about 11, and said he did not know the name of her mother" nor did he know "the exact time she was going to be dropped off." He had exited the house after he received a phone calls that informed him "there were police outside" and he wanted to see what was going on. Hill, __ F.3d at __.

Trial Admission Of Expert Testimony Concerning The Defendant's Interrogation

During the defendant's trial, agent Jones testified about his post-arrest interrogation of the defendant. Jones' expertise was based on having "attended 'two specialized courses in interrogation and interviews, including the Reid school, which is a higher-level school of interrogation and interviewing.'” The case agent explained that the school program was "designed to" train officers in the "interview process and interrogation process," including the psychology of the criminal interview, particularly "some special tactics and ways to identify on deception in statements and truths in statements" of persons being interrogated.

Hill, __ F.3d at __.

No objection was made by the defense to the agent's expert testimony. The agent testified in response to the prosecutor's questions about "several factors that contributed to his opinion that [defendant] was being untruthful during the interview." For example, "He noted that after [defendant] was told that police found items connected to the bank robbery in the East Pine residence," the defendant's story changed in response and that the defendant tried to "evade" questions. In addition, the agent opined that certain statements the defendant made during the interview clearly indicted a guilty conscience. Hill, __ F.3d at __. After his conviction, the defendant appealed contending that the testimony by the case agent's testimony was erroneous. In particular, the defendant believed that "the subject matter of his [agent's] testimony-the credibility of another person-may not be addressed by an expert testifying under Rule 702."

Tenth Circuit Reversal

The Tenth Circuit agreed that plain error had resulted. The expert testimony was inadmissible. Hill, __ F.3d at __ (citing United States v. Toledo, 985 F.2d 1462, 1470 (10th Cir. 1993) (“[t]he credibility of witnesses is generally not an appropriate subject for expert testimony” because it (1) “usurps a critical function of the jury”; (2) “is not helpful to the jury, which can make its own determination of credibility”; and (3) when provided by “impressively qualified experts on the credibility of other witnesses is prejudicial and unduly influences the jury.”) (citations omitted)).

The Tenth Circuit explained that it was not alone in this assessment and that at least seven of "our sibling circuits that have considered this issue have uniformly agreed." The Tenth Circuit cited the following cases as evidence of this circuit consensus about the exclusion of expert opinion testimony on a witness or defendant's credibility:

  • First Circuit: United States v. Gonzalez–Maldonado, 115 F.3d 9, 16 (1st Cir. 1997) (“An expert's opinion that another witness is lying or telling the truth is ordinarily inadmissible pursuant to Rule 702 because the opinion exceeds the scope of the expert's specialized knowledge and therefore merely informs the jury that it should reach a particular conclusion.” (quotation omitted))
  • Second Circuit: Nimely v. City of New York, 414 F.3d 381, 398 (2d Cir. 2005) (“[T]his court, echoed by our sister circuits, has consistently held that expert opinions that constitute evaluations of witness credibility, even when such evaluations are rooted in scientific or technical expertise, are inadmissible under Rule 702.”)
  • Fourth Circuit: United States v. Dorsey, 45 F.3d 809, 815 (4th Cir. 1995) (“[E]xpert testimony can be properly excluded if it is introduced merely to cast doubt on the credibility of other eyewitnesses, since the evaluation of a witness's credibility is a determination usually within the jury's exclusive purview.”)
  • Seventh Circuit: United States v. Vest, 116 F.3d 1179, 1185 (7th Cir. 1997) (“Credibility is not a proper subject for expert testimony; the jury does not need an expert to tell it whom to believe, and the expert's stamp of approval on a particular witness' testimony may unduly influence the jury.” (quotations omitted))
  • Eighth Circuit: Engesser v. Dooley, 457 F.3d 731, 736 (8th Cir. 2006) (“An expert may not opine on another witness's credibility.”)
  • Ninth Circuit: United States v. Rivera, 43 F.3d 1291, 1295 (9th Cir. 1995) (“[A]n expert witness is not permitted to testify specifically to a witness' credibility or to testify in such a manner as to improperly buttress a witness' credibility.” (quotation and alteration omitted))
  • Eleventh Circuit: United States v. Beasley, 72 F.3d 1518, 1528 (11th Cir. 1996) (“Absent unusual circumstances, expert medical testimony concerning the truthfulness or credibility of a witness is inadmissible ... because it invades the jury's province to make credibility determinations.”)

Hill, __ F.3d at __.

Plain Error

Unlike other evidentiary errors, the circuit concluded that in the defendant's case the error in admitting expert opinion constituted plain error. The conviction was vacated and the case was remanded for a new trial. As the circuit concluded:

there is a reasonable probability that but for Jones' improper testimony, the result of [defendant]'s trial would have been different. Jones' testimony directly contradicted [defendant]'s 'wrong place, wrong time' theory. He informed the jury that despite conducting more than a thousand interviews, he had “[n]ever in [his] career” seen “an innocent person” display the behaviors exhibited by [defendant]. Jones opined: “I also don't reasonably believe an innocent person would” behave as [defendant] did. And he described [defendant]'s reliance on subjective knowledge and appeals to religion as “common among the criminal element” and something done by “somebody with guilt.” In closing arguments, the government asked the jury to rely on Jones' expertise ....

Hill, __ F.3d at __.

Conclusion

he Hill case provides a useful review of the state of the law regarding the role expert opinion may play as to the truthfulness or lack of truthfulness of a defendant or a witness. While expertise in interviewing techniques is used by law enforcement and others, courts have found this expert testimony inadmissible at trial As the Tenth Circuit noted, many of the judgments made by the expert were entirely within the capacity of jurors to make without assistance, depriving the government of any ground for offering the testimony under either FRE 702 or FRE 403.

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