Saturday, July 17, 2004

Utah on Undisclosed Pseudo-Lay Testimony

If a witness possesses training and experience that would probably qualify him as an expert, and if his testimony rests on grounds that would probably satisfy the reliability requirements for expert opinion, then some might think it an academic question whether his testimony should be categorized as expert evidence or lay opinion.  But even when the distinction may not be terribly important to jurors (as when law enforcement officers are testifying), it is still important to the parties in pretrial proceedings, because disclosure requirements are generally more stringent for expert testimony.  When appellate courts are asked to rule on the proper characterization, it is typically in a context where discovery requirements have not been satisfied.
John Bogart, our Utah correspondent, has pointed us to a Court of Appeals decision signaling that those requirements should not be skirted in that state.  A man found in possession of 32 grams of methamphetamine was charged with possession of a controlled substance for distribution.  The chief of police testified for the prosecution that in his experience, persons holding meth for personal use would generally possess it in quarter-gram or half-gram quantities.   The defendant objected that this was undisclosed expert testimony, but the trial judge ruled that it was lay opinion.  In denying reconsideration after the jury rendered a guilty verdict, the trial judge actually went further and held that the police chief hadn't offered an opinion at all, but had merely reported on his personal experiences, leaving it to the jurors to draw their own inferences.
It is fairly settled, in federal decisions, that such testimony should be treated as expert evidence, and the Utah Court of Appeals reached the same conclusion.  However, the Utah court went on to do something that the federal appellate courts often decline to do.  It actually found the error to warrant reversal and a new trial.  It didn't hold (as federal appellate courts commonly do) that the error was harmless because other evidence sufficed to support the conviction.  It didn't let the conviction stand on the theory that the testimony would have cleared admissibility hurdles in any event, nor did it conclude blithely that any prejudice was cured by defense counsel's opportunity to cross-examine.  It didn't decide (as the state invited it do to) that sufficient disclosure was afforded by a different police officer's similar testimony at the pretrial hearing.  Instead, it insisted that the prosecution go back and honor its pre-trial disclosure obligations in a manner that would permit the defendant to prepare a witness-specific response.
So in Utah, the dividing line between lay and expert opinion will have to be taken seriously, at least for now.  See State v. Rothlisberger, 2004 UT App. 226 (Utah Ct. App. July 1, 2004).


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Fed. R. Evid. 702: 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.