Lay Opinion Testimony and Expert Opinion Testimony Differentiated; ‘Specific Knowledge’ Expert Witness Opinion-Testimony; Proposed Amendments to Fed.R.Crim.Proc. 16 (a)(1)(G) and Fed.R.Evid. 701 and 702

This article is the first of a series of three articles on lay and expert witness testimony. The focus of the series of articles is in significant part upon the testimony of law enforcement officials in criminal cases. This article examines the prosecution calling of law enforcement officials under the guise of lay witness testimony to render opinion testimony, a practice supported by the Department of Justice, thus avoiding expert witness disclosure and reliability requirements, in spite of the amendment to Fed.R.Evid. 701 clearly distinguishing lay from expert witness testimony. It also explores and critiques the concepts of “particularized knowledge” “skilled lay witness observer” and “treating physician” lay witness opinion testimony along with proposing the concept of “specific knowledge” expert witness testimony. The second article is a primer on expert witness testimony addressed to attorneys trying criminal cases under the Federal Rules of Evidence or state evidence codes modeled therein highlighting the critical operative components of Fed.R.Evid. 702-705 and the discretionary use of a hypothetical question. The last article, building on the two prior articles in this set, examines recent expressions in several federal court of appeals decisions that the prosecution sometimes in presenting overview, course of investigation, structure and terminology, and summary law enforcement expert testimony, and sometimes lay witness testimony, has done so in violation of the Federal Rules of Evidence and the Confrontation Clause. The relationship between lay and expert witness opinion testimony is multi-faceted. Since promulgation of the Federal Rules of Evidence in 1975, expert witness disclosure, i.e., who is an expert, what category of expert, what disclosure for that category, has naturally proceeded on a separate track. Simultaneously, Fed.R.Evid. 701, amended in 2000 to further differentiate lay from expert opinion testimony, in fact has led to blurred lines of separation along with furthering the use of imprecise nomenclature. With respect to imprecise nomenclature, “particularized knowledge” and “skilled lay witness observer” are front and center. Ever more significantly, “specialized knowledge”, which under Fed.R.Evid. 701(c) demands expert witness treatment, unless precisely defined incorporates witnesses who under the discovery rules are treated as lay witnesses and more importantly in criminal cases are regularly at trial treated in fact as lay witnesses when testifying. “Specialized knowledge” in Fed.R.Evid. 701(c) is the same “specialized knowledge” within the scope of Rule 702. Since the 2000 amendment not one court has attempted to say otherwise. Witness opinion testimony rationally based upon a foundation of personal knowledge possessed by the average person, which includes so-called “particularized knowledge” “collective fact” and “skilled lay observer” witness opinion testimony, is simply “lay witness opinion” testimony subject to lay witness disclosure. Conversely, all ‘specialized knowledge’ based witness opinion testimony is expert witness testimony subject to various forms of expert witness disclosure. Testimony by a witness that is neither “ordinary” lay witness opinion testimony, nor “specialized knowledge” expert witness opinion testimony, referred to herein as “specific knowledge” basis expert witness opinion testimony occupies the remaining space. Expert witness “specific knowledge” based opinion is opinion testimony rationally based upon the witness’s personal knowledge, obtained through training and experience not possessed by the average person, acquired as an actor or viewer of specific circumstances that comprises, or describes, or explains a transaction or occurrence that is a subject matter of the lawsuit not constituting scientific, technical, or specialized knowledge. As presented, once it is recognized that all scientific and technical based opinion testimony is expert testimony, the critical issue becomes differentiating between “specific knowledge” beyond that possessed by the average person from “specialized knowledge”, both proper basis for expert witness and not lay witness opinion testimony. This distinction rests upon the basic principles that underlined the hypothetical question requirement at common law. A witness, any expert witness, can rely upon and convey that which makes her an expert with respect to a scientific, technical or other “specialized knowledge” matter, expertise developed through “knowledge, skill, experience, training and/or education,” Fed.R.Evid. 702. Thus, what makes the expert an expert in the particular field may be testified to by the expert in court. In addition, a qualified expert may testify to relevant matters solely within the expert’s personal knowledge, i.e., facts, data, or opinions acquired as an actor or viewer of relevant specific circumstances. At common law, if such facts, data, or opinions constituted a “sufficient” basis upon which to form an opinion, Fed.R.Evid. 702(b), the expert witness could simply so testify. However, if more was needed for there to be a “sufficient” basis of facts, data, or opinions upon which to opine, a hypothetical question was required. Thus, if facts, data, or opinions otherwise admitted into evidence but not within the testifying expert’s personal knowledge were necessary, then a hypothetical question was required. Included within the category of experts who could theoretically opine at common law absent a hypothetical question are experts who possess “specific knowledge”, i.e., an expert’s whose basis includes personal knowledge of facts, data, or opinions obtained through training and experience not possessed by the average person acquired as an actor or viewer of the particular circumstances that comprise, describe, or explain a transaction or occurrence that is the subject matter of the lawsuit, not constituting scientific or technical knowledge, or other specialized knowledge. However, if the witness’s basis went beyond such personal knowledge requiring either reliance on facts, data, or opinions otherwise in evidence or, as is permitted by Fed.R.Evid. 703 but not previously at common law, of facts, data, or opinions reasonably relied upon by experts in the particular field, expert witness “specialized” opinion testimony is being offered. Consider the admissibility of opinion testimony as to the meaning of certain code terms allegedly employed in a drug conspiracy, such as “refrigerator” or “candy bar”. If a person involved in the criminal conspiracy itself with personal knowledge is prepared to testify that “refrigerator” refers to such and such while “candy bar” means so and so, Fed.R.Evid. 701 would be satisfied. A foundation of personal knowledge has been presented sufficient to support the lay witness opinion testimony as to the meaning of the particular terms; ordinary people have sufficient similar experiences in life to identify what is referred to when a particular term is employed. If a case agent who was a participant in the actual conspiracy was called upon to explain the workings of the particular conspiracy to import and distribute the “refrigerator” and “candy bar”, such an explanation would be based in part on personal knowledge obtained through training and experience not possessed by the average person acquired as an actor or viewer of the particular circumstances forming the subject matter of the lawsuit; the case agent’s testimony would be “specific knowledge” expert witness opinion testimony. If the case agent in support of his opinion testimony goes further and relies upon published manuals, statements by other law enforcement officials, statements by present or former members of the drug conspiracy, etc., the case agent’s testimony would be “specialized knowledge” expert witness testimony. Obviously, current authority does not correctly distinguish between “lay” witness opinion testimony, “specific knowledge” expert witness opinion testimony and “specialized knowledge” expert witness testimony. Once the concept of “specific knowledge” expert witness testimony is acknowledged, then the scope of expert witness disclosure under Fed.R.Crim.Proc. 16(a)(1)(G) can be amended to require with respect to “specific knowledge” expert testimony disclosure be limited to solely the subject matter and a summary of the facts to which the expert is expected to testify. It is the concern with full disclosure now required under Fed.R.Crim.Proc. 16(a)(1)(G) with respect to all testifying expert witnesses that has encouraged courts to improperly declare expert witness testimony to be lay witness opinion testimony thus removing the requirement of a written summary of such testimony altogether.