The state Superior Court has ruled in a case of first impression that a single witness may testify as both an expert and a layperson.
In Commonwealth v. Huggins, a three-judge panel unanimously ruled in the result, upholding a jury conviction in the Lancaster County Court of Common Pleas in a case in which a state Office of Attorney General Bureau of Narcotics Investigation and Drug Control agent testified at trial both as an expert in drug jargon and as a lay witness to several intercepted phone conversations.
But while the court, noting a lack of state precedent, relied on federal criminal case law to reach its decisions, attorneys told the Law Weekly that allowing a witness to testify in both lay and expert capacities is not necessarily uncommon in civil cases.
In fact, plaintiffs attorney Alan M. Feldman of Feldman Shepherd Wohlgelernter Tanner Weinstock & Dodig in Philadelphia, who was not involved in Huggins, said the scenario "happens all the time" in civil cases.
For example, in almost every medical malpractice case, Feldman said, plaintiffs counsel asks the defendant doctor a question during deposition regarding the applicable standard of care, at which point defense counsel must decide whether to object or to allow the client to testify as both a lay and expert witness.
"We’re used to doctors frequently testifying in both capacities," Feldman said, adding that the same is true with regard to all professionals, from lawyers to architects, in civil cases.
Writing for the court in Huggins, Judge Judith Ference Olson said nothing in the Pennsylvania Rules of Evidence prohibits dual expert and layperson testimony from a single witness.
Olson said Rule 702 permits an expert to testify to scientific, technical or other specialized knowledge, while Rule 701 permits a layperson to testify based on his or her perceptions of the events that occurred, but neither rule bars a single individual from offering both types of testimony.
Meanwhile, Olson said, Rule 704 "clearly permits both expert and lay opinion testimony on issues that ultimately must be decided by the trier of fact — in this case, the jury."
Olson was joined in the result by Judge Paula Francisco Ott and Senior Judge James J. Fitzgerald III.
Fitzgerald concurred but did not pen a separate opinion.
In Huggins, according to Olson, defendant David Huggins Jr. appealed from the August 4, 2011, judgment of sentence following his jury trial convictions for corrupt organizations, criminal conspiracy, criminal use of a communication facility and delivery or possession with intent to deliver a controlled substance.
Huggins argued that drug agent David Carolina overstepped his bounds as an expert witness when he testified at trial regarding the contents of more than 150 phone conversations that had been intercepted by investigators, Olson said.
While Huggins conceded that the parts of Carolina’s testimony pertaining to the meaning of certain drug culture lingo used in the phone conversations were admissible, he argued that other portions of Carolina’s testimony usurped the jury’s fact-finding function by essentially summarizing the phone conversations, according to Olson.
Huggins objected to the testimony, but the trial court overruled the objections, relying both on the state Rules of Evidence and federal case law, Olson said.
In the 2012 case United States v. Christian, according to Olson, the U.S. Court of Appeals for the Seventh Circuit ruled that a single witness may offer dual expert and layperson testimony.
But the court in Christian, relying on its 2009 ruling in United States v. York, emphasized that trial judges must take steps to avoid jury confusion by clearly indicating when the witness is testifying to fact, as opposed to offering an expert opinion.
In addition, the Christian court, relying on its 2008 decision in United States v. Farmer, further noted that trial judges must give adequate cautionary jury instructions before dual testimony and must allow for rigorous cross-examination of witnesses who offer dual testimony, while prosecutors must preface such testimony by laying the proper foundation as to the witness’ qualifications, Olson said.
In Huggins, Olson said, Lancaster County Court of Common Pleas Judge David L. Ashworth directed the prosecution to clarify for the jury when Carolina’s testimony was based on his expertise in drug jargon and when it was based on his recollections of the facts of the case.
Ashworth also issued cautionary jury instructions at several points throughout the trial with regard to the dual nature of Carolina’s testimony, according to Olson.
In addition, according to Olson, Ashworth allowed the defense to rigorously cross-examine Carolina about the basis of his testimony that Huggins was one of the parties to an intercepted phone conversation.
"There was no suggestion that agent Carolina relied upon expertise or anything other than his personal observations for that assessment," Olson said, adding that the defense was also allowed to cross-examine Carolina in order to clarify that his expert testimony was confined only to the interpretations of drug jargon.
Olson said Ashworth "took significant steps to minimize any juror confusion."
"The trial court was diligent in exercising its gate-keeping function," Olson said.
Feldman said he couldn’t recall ever seeing a special jury instruction given in a civil case to differentiate between a witness’ lay and expert testimony, but said he could understand how it could be confusing in certain instances.
Still, Feldman said he agreed with the Huggins court’s ruling, because any testimony that qualifies under one of the Rules of Evidence should be admissible, regardless of whether its proffered by a single witness.
Counsel for Huggins, Vincent J. Quinn of Eager, Stengel, Quinn & Sofilka in Lancaster, Pa., said he planned to seek reargument.
A spokesman for the state Office of Attorney General declined to comment.
(Copies of the 23-page opinion in Commonwealth v. Huggins, PICS No. 13-1076, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •