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How many times have you heard this question in a courtroom: “And on how many previous occasions have you qualified as an expert?” Law school trial practice texts recommend that the young trial attorney ask that question as part of the foundation needed to qualify an expert. E.g., A. Mauet, Trial Techniques 326-37 (6th ed. 2002). Trial advocacy manuals for practitioners contain similar advice. 2 Fred Lane, Goldstein’s Trial Techniques � 16.11, at 17 (3d ed. 1985). Simply stated, it is “standard practice.” Prager & Marshall, “Examination of Prior Expert Qualification and/or Disqualification (Questionable Questions Under the Rules of Evidence),” 24 Rev. Litig. 559, 560 (Summer 2005) (hereinafter cited as Prior Expert Qualification). The propriety of the practice is implicitly assumed. The practice has been “unquestion[ed]” for years, if not decades. Id. at 567. Nevertheless, a decade ago I had the audacity to suggest that the practice is objectionable as a matter of evidence law. “Forensic Science: Qualifying a Witness as an Expert-Evidentiary Mini-Issues,” 31 Crim. L. Bull. 350, 355-56 (July-Aug. 1995). I argued that at least in the jury’s hearing, testimony about the witness’s prior qualification as an expert is inadmissible hearsay. I contended that the earlier trial judge is an out-of-court declarant with respect to the pending trial, and that the ruling represents an assertion that the witness is an expert. Prior qualification testimony ‘heresy’ is spreading For the life of me, I could not find any applicable hearsay exception. I announced my momentous discovery and awaited the response. The response was massive silence. With the exception of one acknowledgment by my good friend, Professor James Starrs at George Washington University, the legal world essentially ignored the discovery. A few weeks ago, though, I was delighted to see that there are others who share my heretical view. The Summer 2005 issue of The Review of Litigation contains an article by professors Irving Prager and Kevin Marshall. They also come to the conclusions that the testimony amounts to hearsay and does not fall within any recognized hearsay exception. The purpose of this column is to call attention to their article-and reiterate my own admittedly aberrant views on this topic. To sort out the issue, though, we must differentiate between two fact situations. In one, the attorney is submitting the testimony only to the trial judge while the judge is ruling on the question of whether the witness qualifies as an expert. A federal judge makes that determination under Federal Rule of Evidence 702. When he or she does so, the judge follows the preliminary factfinding procedure prescribed by Rule 104(a). Under 104(a), the proponent can invoke its last sentence of the statute: “In making its determination [the trial court] is not bound by the rules of evidence except those with respect to privileges.” This is an evidence code provision stating that the trial judge can ignore the rules of evidence! However, on reflection, the provision makes eminently good sense. The conventional view is that the common law courts developed the exclusionary rules of evidence because of their doubts about the critical capacity of lay jurors. For example, according to the conventional wisdom, the courts formulated the hearsay rule because they feared that lay jurors would attach undue weight to untested statements by out-of-court declarants. However, if the technical rules of evidence are “jury-protecting” rules, it makes little sense to apply them under Rule 104(a). The judge makes the determination outside the jury’s hearing, indeed sometimes in limine before a jury has been selected. Prager and Marshall argue that even in this setting, a prior judge’s ruling is arguably irrelevant (Prior Expert Qualification at 569), but Rule 104(a) at least lifts the bar of the hearsay rule. However, Rule 104(a) does not moot the issue. In some jurisdictions, the technical exclusionary rules apply even to foundational testimony submitted to the trial judge. That appears to be the law in California. Imwinkelried, Wydick & Hogan, California Evidentiary Foundations 3-4 (3d ed. 2000). In California, the proponent cannot defeat a hearsay objection simply by pointing out that the testimony is being presented to the judge outside the jury’s hearing. A further problem relates to the second fact situation: the presentation of the testimony in the jury’s hearing. The initial issue is whether the statement is hearsay. This testimony is undeniably hearsay. Crim. L. Bull. at 356. The statement is assertive for purposes of Federal Rule 801(a). The judge is not making an exclamation, asking a question, or issuing an order. Explicitly or implicitly, the judge is saying: “This witness qualifies as an expert.” The statement is declarative or assertive in character. The statement is being offered for an assertive, hearsay purpose under Rule 801(c). The issue for the jury to decide is whether this witness qualifies as an expert worthy of their belief, and the judge is asserting “This witness qualifies as an expert.” It would be silly to argue that the testimony is relevant for some recognized nonpurpose hearsay. Is it relevant to show the judge’s state of mind? The judge’s state of mind on that issue is not a fact of consequence under Federal Rule 401. Is it relevant to show the effect of the judge’s ruling on the witness’ state of mind. That is also irrelevant. The statement is relevant only if it is offered for its truth. The prior trial judge is a hearsay declarant: “[T]here is a hearsay exception for judgments in Federal Rule 803(22). However, by its terms that exception is inapplicable here; that exception allows testimony about ‘a final judgment’ entered by the prior judge, not individual rulings by the judge. [T]he very existence of that exception reflects the drafters’ appreciation that statements by earlier judges in prior trials are hearsay.” Crim. L. Bull. at 356. Prager and Marshall are correct in concluding that the prior judge’s ruling amounts to a hearsay assertion. Prior Expert Qualification at 571. The next issue is whether the statement falls within any hearsay exception. “The hearsay rule . . . has numerous exceptions.” Id. Yet Prager and Marshall profess that they cannot find an exception applicable to testimony about a prior judge’s ruling. They are right. An individual judicial ruling falls outside the scope of Rule 803(22), the exception for final judgments. Could the proponent successfully invoke Rule 803(8)(C) by arguing that the statement falls within the exception for official records? This argument should also fail. Some courts have been reluctant to extend that exception to apply to judicial determinations. Nipper v. Snipes, 7 F.3d 415 (4th Cir. 1993). Even if the court were willing to stretch the statute’s reach in that respect, there is another hurdle that might well prove insuperable. Rule 803(8)(C) is limited to statements included in “[r]ecords, reports, statements, or data compilations.” Any court would be hard pressed to stretch that language to apply to an oral ruling by a trial judge. Finally, could the proponent turn to the residual exception codified in Rule 807? There are several difficulties with this approach. To begin with, the proponent cannot rely on Rule 807 to justify a general rule that such testimony is admissible. The wording of the statute makes it clear that the drafters intended the statute to be applied in an ad hoc, case-specific manner. Moreover, Rule 807 requires that the proponent give advance notice of the intent to rely on the exception and proffer evidence under the exception. There is no reported opinion in which a proponent gave the necessary notice to justify the introduction of the testimony in question under Rule 807. The testimony in question has little probative value Lastly, before admitting testimony under Rule 807, the judge must find that “the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts.” As Prager and Marshall argue, the prior qualification testimony has little probative value. The jurors have the benefit of the in-court examination of the witness about his or her claimed expertise. Prager and Marshall explain that from the simple fact of the prior favorable ruling, “we can draw little knowledge regarding the witness’s present qualifications. [We do not] know the context in which the assertion was made; the underlying facts of the case; the data considered by the witness; the subject matter at which the opinion was directed; the relationship between the witness’s training, education, skills, and special knowledge and the subject matter. [T]he prior qualification may have been met with little resistance, or even attained by stipulation.” Prior Expert Qualification at 571. Prager and Marshall present a much more extended analysis of this question than I ventured. For instance, in addition to developing the hearsay objection to testimony about prior qualification, they argue that the ruling also amounts to inadmissible opinion. The ruling is reducible to an opinion on a mixed question of fact and law, whether “the preponderance of evidence standard has or has not been met regarding the statutory requirements for a finding of expertise.” Id. at 572. Even when a witness takes the stand and subjects himself or herself to cross-examination, the courts are reluctant to admit opinions on such subjects. Charles Ehrhardt, “The Conflict Concerning Expert Witnesses and Legal Conclusions,” 92 W.Va. L. Rev. 645 (1990). Permitting the presentation of this testimony to juries is indefensible under the existing evidentiary rules. If for some reason that escapes me jurors desperately need this testimony, the rules should be amended to use the practice. Edward J. Imwinkelried is the Edward L. Barrett Jr. Professor of Law at the University of California, Davis. He is co-author of Scientific Evidence (Lexis Law Pub. 3d ed. 1999).

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