Tuesday, July 05, 2005

The Expert Opinion Problem

Prof. Roger Park has called to my attention a case that presents an important issue in a form that he predicted. The general issue is this: So far as evidentiary rules are concerned, in some circumstances an expert may base an opinion at least in part on information other than admissible evidence, including statements made to the expert, and may even testify to those sources of information. E.g., FRE 703. So, to what extent does the Confrontation Clause trump this rule? In some settings, though a statement made to the expert might appear to be testimonial in nature, because made in anticipation of prosecutorial use, the prosecution will argue that the statement is not being offered for the truth of what it asserts but only as a basis for the expert's opinion; recall that Crawford preserves the rule that the Confrontation Clause is only concerned when a statement is offered to prove the truth of what it asserts.

Several courts have held that Crawford does not destroy this end run. But now the issue has arisen in a particularly stark form, the one that Roger predicted, in People v. Thomas, 2005 WL 1377744 (Cal. App. 4th Dist. June 10, 2005; certified for publication June 30, 2005) . Melvin Thomas was charged with active participation in a criminal street gang. Robert Kwan, a sheriff's officer, testified as an expert on gangs. Among other testimony, Kwan offered the opinion that Thomas was a member of a gang called E.Y.C. Kwan had various sources for drawing this conclusion. According to the court:
Kwan testified that he had talked with other E.Y.C. members about defendant, and
they had told him that defendant was a member of E.Y.C. and that defendant's
moniker was "Little Casper" or "Villain." Kwan had also talked with members
of rival gangs about defendant's membership in E.Y.C.
The court held that this testimony was acceptable.

The basis-for-expert-opinion veneer seems to me to be too thin in this context. I am not certain whether any general rule is appropriate, but I don't think that the general rule should be: "If evidentiary law allows the prosecution to present an expert who opines as to a conclusion and in support of that conclusion testifies to matters communicated to the expert, there is no confrontation problem." Perhaps the opposite general rule would work: "There is no difference for confrontation purposes between offering a statement to prove the truth of what it asserts and offering it in support of an opinion that an assertion made by the statement is true." Note that this rule would have teeth only if the statement is testimonial. Arguably it was in Thomas: From what I gather, Kwan was not working undercover. Apparently, though, he was able to gain the confidence of the gang members to a great degree, and perhaps there is an argument that from their perspective their conversations seemed like idle chatter.

Addendum, Feb. 9, 2007: Please note that I have commented on the general subject matter of this entry in two later ones, The Expertise End Run and People v. Goldstein and The Not-for-the-Truth End Run.


William Mallory Kent said...

The Eleventh Circuit recently addressed the expert opinion hearsay issue in an unpublished decision, the pertinent language of which is as follows (they found that Crawford forbids an expert from relying upon hearsay evidence to state an expert opinion but found the error harmless on the facts of this particular case):

Here is the pertinent quote from the 11th Circuit decision:
Buonsignore argues that the expert testimony regarding the heroin's
value did not meet the requirements of Fed.R.Evid. 702 because the agent
who testified did not conduct an independent analysis of the value of
heroin and merely restated figures given to him by someone in
Washington, DC. He contends that the agent did not have personal
knowledge of the value and could not identify any of the underlying data
on which his expert opinion was based, making his opinion insufficiently
reliable. Buonsignore next submits that the agent's testimony as to the
heroin's value violated the Confrontation Clause under Crawford v.
Washington, 541 U.S. 36, ----, 124 S.Ct. 1354, 1374, 158 L.Ed.2d 177
(2004), which allows prior testimonial statements to be admitted only if
both (1) the declarant is unavailable and (2) the defendant had an
opportunity to cross-examine the witness. He claims that the evidence
regarding the value of the heroin was testimonial in nature, and the
government made no showing that the declarant was unavailable.
Buonsignore further argues that the valuation testimony was irrelevant
and extremely prejudicial.
"We review for abuse of discretion the district court's decisions
regarding the admissibility of expert testimony and the reliability of
an expert opinion." United States v. Frazier, 387 F.3d 1244, 1258 (11th
Cir.2004) (en banc ), petition for cert, filed, No. 04-8324 (Jan. 13,
2005). Rule 702 provides
If scientific, technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill, experience,
training, or education, may testify thereto in the form of an opinion or
otherwise, if (1) the testimony is based upon sufficient facts or data,
(2) the testimony is the product of reliable principles and methods, and
(3) the witness has applied the principles and methods reliably to the
facts of the case.
Fed.R.Evid. 702. District courts play a "gatekeeping" function regarding
the admission of scientific and technical expert evidence. Frazier, 387
F.3d at 1260. "This function inherently require[s] the trial court to
conduct an exacting analysis of the foundations of expert opinions to
ensure they meet the standards for admissibility under Rule 702." Id.
(quotation omitted) (emphasis in original).
To determine whether expert evidence is admissible,
Trial courts must consider whether: (1) the expert is qualified to
testify competently regarding the matters he intends to address; (2) the
methodology by which the expert reaches his conclusions is sufficiently
reliable as determined by the sort of inquiry mandated in Daubert; and
(3) the testimony assists the trier of fact, through the application of
scientific, technical, or specialized expertise, to understand the
evidence or to determine a fact in issue.
Id. Training and experience in the field can confer expert status. Id.
at 1260-61. Regarding the reliability of the expert testimony and the
second factor, the trial judge must evaluate the reliability of the
testimony before admitting it, but has significant leeway in how he
conducts the evaluation. Id. at 1262. As to the third factor, "expert
testimony is admissible if it concerns matters that are beyond the
understanding of the average lay person," and must pass the Rule 403
balancing test: its probative value must not be substantially outweighed
by its prejudicial effect. Id. at 1263. "Testimony about the weight,
purity, dosages, and prices of cocaine clearly relates to knowledge
beyond the ken of the average juror." *25620
United States v. Tapia-Ortiz, 23 F.3d 738, 741 (2d Cir.1994).
"In all criminal prosecutions, the accused shall enjoy the right ... to
be confronted with the witnesses against him." U.S. Const. amend. VI.
"The Confrontation Clause of the Sixth Amendment to the Federal
Constitution forbids the introduction of hearsay evidence against
criminal defendants unless the offered hearsay falls into a firmly
rooted hearsay exception or the hearsay statement at issue carries a
particularized guarantee of trustworthiness." United States v. Brown,
299 F.3d 1252, 1258 (11th Cir.2002), vacated, 538 U.S. 1010, 123 S.Ct.
1928, 155 L.Ed.2d 847 (2003), opinion reinstated by 342 F.3d 1245, 1246
(11th Cir.), cert. denied, --- U.S. ----, 125 S.Ct. 37, 160 L.Ed.2d 34
(2004) (quotations omitted). Rule 703 allows experts to rely upon data
which itself would not have been admissible if this data is "of a type
reasonably relied upon by experts in the particular field in forming
opinions." Fed.R.Evid. 703. We have held that
Rule 703 encompasses hearsay statements in a context such as the instant
one, where the government expert specifically testified that his opinion
was based on his experience and expertise, in conjunction with the
information he received from a DEA intelligence agent and Bermudan
authorities, and that such sources of information were regularly relied
upon in valuating narcotics.
Brown, 299 F.3d at 1257. We held in Brown that
hearsay evidence relied upon by an expert in forming his opinion, as
long as it is of a time regularly relied upon by experts in that field,
is a 'firmly rooted' exception to the general rule of exclusion of
hearsay statements, and therefore is not violative of a criminal
defendant's confrontation rights.
Id. at 1258.
We noted that to the extent Brown's counsel desired to question the
testifying DEA agent's sources and value determination, he did so
effectively through cross-examination of the agent expert at trial. Id.
In Crawford, the Supreme Court held that prior testimonial statements
may be admitted only if the declarant is unavailable and the defendant
had an opportunity to cross-examine the declarant. Crawford, 541 U.S. at
----, 124 S.Ct. at 1374 (noting prior testimony at a preliminary
hearing, grand jury, or earlier trial as examples of testimonial
statements). Nontestimonial statements, however, are not subject to
those requirements, and may be exempt from Confrontation Clause scrutiny
altogether. Id. at ----, 124 S.Ct. at 1374. We have held that "erroneous
admission of evidence does not warrant reversal if the error had no
substantial influence on the outcome and sufficient evidence uninfected
by error supports the verdict." United States v. Harriston, 329 F.3d
779, 789 (11th Cir.2003) (quotations omitted) (noting also that error is
harmless "where there is overwhelming evidence of guilt.").
[1] Although we conclude that the district court abused its discretion
by admitting expert testimony regarding the value of the drugs, the
error was harmless and does not warrant reversal. The district court
properly admitted the agent's testimony under Rule 702, as his training
and experience qualified him to testify as an expert in drug valuation.
The district court evaluated the reliability of the agent's testimony
and methodology he employed to arrive at his testimony. The drug value
information helped the jurors better understand evidence at issue. Thus,
it was admissible under Rule 702.
[2] [3] However, the drug valuation testimony violated the Confrontation
Clause. Although Rule 703 allows experts to rely on otherwise
inadmissible evidence in formulating their opinions and the agent's
testimony complied with our decision in Brown, it is inadmissible under
the standard set forth in Crawford. The agent's testimony was based on
information obtained from an unidentified individual at the DEA in
Washington, D.C. The evidence is testimonial in nature. The government
has not shown that both (1) that individual is unavailable, and (2)
Buonsignore had the opportunity to cross-examine that individual. Thus,
it was a violation of the Confrontation Clause to admit it. Nonetheless,
the admission of the drug valuation testimony had no substantial effect
on the outcome and sufficient admissible evidence supported the verdict.
Buonsignore admitted at trial that the handle from the bag containing
heroin was his and previously admitted that the bag was his and had been
in his possession from the time he checked it in Venezuela until he
arrived in Atlanta. Evidence in the record connected the handle to the
bag in which the heroin was found. The parties stipulated that the
amount of heroin was a distribution amount. Therefore, sufficient
admissible evidence existed to support the verdict, making the erroneous =
admission of the drug value harmless.

U.S. v. Buonsignore 131 Fed.Appx. 252, *255 -257 (C.A.11 (Ga.),2005)

William Mallory Kent
Attorney at Law
1932 Perry Place
Jacksonville, Florida 32207

904-398-8000 Telephone
904-348-3124 Fax
kent@williamkent.com Email
www.williamkent.com Webpage

Bryan said...

North Carolina has permitted a drug analyst to testify that based on tests performed by someone else.

Richard D. Friedman said...

Andy Fine, who has had trouble posting his comment, has asked me to do so. Here it is (Unfortunately, I do not believe his formatting -- uderlining and so forth -- has carried over.):

In jurisdictions that have previously regarded such expert testimony as non-hearsay, Crawford doesn’t directly affect the analysis. Hopefully, though, it will lead to a re-examination of the threshold evidentiary question.

Before Crawford, Confrontation Clause-based challenges to the introduction of out-of-court statements recited by an expert were viewed by most jurisdictions as non-hearsay, offered merely to illuminate the basis for the expert’s opinion. They were permitted under FRE 703 and state equivalents, if (a) a limiting instruction was given, telling the jury that the statements could not be considered for their truth, and (b) the court decided that the statements were of a type reasonably relied on by experts in the field. If these courts adhere to their belief that the sort of statements disclosed to the jury by a police expert in a case like Thomas are non-hearsay, Crawford won’t affect their admissibility. However, Crawford hopefully will induce some courts to rethink the evidentiary issue, because, as commentators have generally agreed, characterizing statements like this as non-hearsay is insupportable, see Ronald R. Carlson, Policing The Bases Of Modern Expert Testimony, 39 Vand. L. Rev.577 (1986); Paul R. Rice, Inadmissible Evidence As A Basis For Expert Opinion Testimony, 40 Vand. L. Rev. 583 (1987), and their introduction, if testimonial, through an expert in a criminal case without calling the declarant is difficult to reconcile with the Confrontation Clause. Crawford’s focus on the singular importance of cross-examination and the unfairness of a prosecution based on the introduction of uncross-examined testimonial statements has already had a substantial, albeit indirect, impact on the law of hearsay in New Jersey. State v. Branch, 865 A.2d 673 (N.J. 2005) (state supreme court ducks Confrontation Clause issue, but narrows its interpretation of the excited-utterance exception, particularly in cases where the declarant is unavailable, based largely on principles underlying Crawford).

Even the most frequently-cited pre-Crawford proponent of the expansive admission of out-of-court statements underlying an expert’s opinion, Prof. Rice, acknowledged their hearsay character, noting that “one cannot accept an opinion as true without implicitly accepting the facts upon which the expert based that opinion.” 40 Vand. L. Rev. at 587. He further recognized that a limiting instruction, telling the jury “not to accept the recited facts as true” but to consider them “only in assessing the value of the expert’s opinion,” was illogical and could not be followed. Id. at 585. In a case like Thomas, the “gang expert’s” opinion that Thomas was a member of the gang is invalid unless the statements made to him by his sources (members of the gang) are true, and the expert’s testimony reciting what those sources told him is therefore hearsay. If this is not so, then neither would it be hearsay for a fire marshal to testify that in her opinion, a fire was caused by arson, because Joe Smith told her that he saw the defendant enter the building with a gasoline can shortly before it caught fire. The Second Circuit, among other courts, has recognized that if a statement has no probative value other than for its truth, it is hearsay even if ostensibly offered for another purpose, and an instruction that the jurors shouldn’t use it for its truth is incapable of being followed. See United States v. Reyes, 18 F.3d 65 (2d Cir. 1994).

To justify the introduction of such statements, Prof. Rice argued instead for an “open-ended hearsay exception,” with the witness’s expertise providing the necessary assurance of reliability. 40 Vand. L. Rev. at 586-591. Post-Crawford, of course, this rationale no longer will suffice if the statement is testimonial and there has been no opportunity to cross-examine the declarant. Certainly, in the Thomas context, the gang members to whom the police officer/“gang expert” spoke were almost certain to be aware that their information would likely be used to prosecute Thomas, and the statements therefore should be viewed as testimonial.

R.S. Malc said...

What are your thoughts on the NY Court of Appeals decision in People v. Goldstein and the courts interpretation of testimonial evidence in that case. Should experts be allowed to rely upon testimonial hearsay statements in forming the basis of their expert opinion. Did the NY Court of Appeals get it right in Goldstein? What are your general thoughts?

Richard D. Friedman said...
This comment has been removed by a blog administrator.
Richard D. Friedman said...

I commented on Goldstein in an entry posted shortly after it was decided,
http://confrontationright.blogspot.com/2005/12/expertise-end-run-and-people-v.html. I also commented more generally on statements purportedly not offered for the truth of what they assert, in an entry available at http://confrontationright.blogspot.com/2006/01/not-for-truth-end-run.html. I should have noted these later entries in this one, and I have now amended this entry to give more convenient links to these. Thanks for the question!

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