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Admissibility is only half the battle. Even if the judge admits expert testimony over the opponent’s objection, the opponent still has several tools for attacking the weight or believability of the testimony. As Justice Harry Blackmun noted in Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579, 596 (1993), the opponent can both subject the expert to “[v]igorous cross-examination” and “present contrary evidence.” In the same sentence, though, the justice mentioned a third tool, namely, “careful instruction” by the judge. Three other instructions relating to expert testimony Although Blackmun explicitly mentioned only instructions on the burden of proof, there are at least three other types of judicial instructions relating to expert testimony. First, the judge might give the jury an instruction under Federal Rule of Evidence 104(b) to resolve an authenticity issue related to expert testimony. Suppose, for example, that the plaintiff offers a purported expert report but the defendant objects, contending that the exhibit is a forgery. That objection poses a conditional relevance issue governed by Rule 104(b). At the defense’s request, the judge would tell the jury that although the plaintiff has presented some evidence that the report is genuine, the defendant has submitted rebuttal evidence; the plaintiff has the burden of proving the report’s authenticity by a preponderance of the evidence; if the jurors find that the plaintiff has met the burden, they may consider the report during their deliberations; but if they conclude that the plaintiff has failed to shoulder the burden, they must completely disregard the exhibit. Determining Preliminary Facts Under Federal Rule 104, 45 Am. Jury Trials � 33 (1992). Armed with a Rule 104(b) instruction, during closing argument the opponent can attack the report’s authenticity and invite the jurors to utterly disregard the purported expert report. In addition, the judge could give the jury a limiting instruction under Federal Rule 105. Limiting instructions are two-pronged. One, a negative prong, identifies the forbidden use of the evidence. The other, an affirmative prong, specifies the permissible use of the evidence. Judges frequently administer such instructions when the proponent offers testimony about an out-of-court statement for a nonhearsay purpose under Rule 801(c). Likewise, judges read such instructions to the jury when the proponent offers evidence of the opponent’s uncharged misconduct on a noncharacter theory of logical relevance theory under Rule 404(b). 2 Uncharged Misconduct Evidence �� 9:67-:74 (rev. 1999). In some cases, limiting instructions are apropos for expert testimony. By way of example, suppose that after an alleged rape, the complainant either delayed reporting the offense or recanted the rape accusation. In some jurisdictions, although a proponent may introduce rape trauma syndrome evidence to rehabilitate the complainant’s credibility, the evidence is inadmissible as substantive proof that a rape occurred. 1 P. Gianelli & E. Imwinkelried, Scientific Evidence � 9-4 (3d ed. 1999). When the opponent has the benefit of a limiting instruction, in summation the opponent at least can do “damage control” and urge the jury to give the expert testimony only limited effect. Admissibility instructions under Rule 104(b) and limiting instructions under Rule 105 do not exhaust the possibilities. A third possibility is a cautionary instruction, directing the jury to be wary of a particular type of testimony. Many jurisdictions give jurors cautionary instructions about the danger of eyewitness identification testimony. E.g., U.S. v. Telfaire, 469 F.2d 552 (D.C. Cir. 1972); State v. Hunt, 275 Kan. 811, 69 P.3d 571 (2003). There has been a good deal of empirical investigation of the efficacy of such instructions. Ramirez, Zemba & Geiselman, “Judges’ Cautionary Instructions on Eyewitness Testimony,” 14 Am. J. Forensic Psychology 31 (1996). In criminal cases, cautionary instructions about testimony of accomplices, immunized witnesses and drug abusers are common. 1A K. O’Malley, J. Grenig & W. Lee, Federal Jury Instructions and Practice: Criminal Ch. 15 (5th ed. 2000); Fishman, “Defense Witness as ‘Accomplice’: Should the Trial Judge Give a ‘Care and Caution’ Instruction?,” 96 J. Crim. L. & Criminology 1 (2005). Even prior to Daubert, many jurisdictions employed general cautionary instructions about expert testimony. For instance, the pattern 5th U.S. Circuit Court of Appeals instruction tells the jurors that they “are not required to accept” the expert’s opinion. 3 O’Malley, Grenig & Lee, supra, at 153. A pattern 11th Circuit instruction informs the jury that “[w]hen an expert witness has been or will be paid for . . . testifying concerning the evidence, you may consider the possibility of bias and should view with caution the testimony of such a witness where court testimony is given with regularity and represents a significant portion of the witness’ income.” Id. at 154. See also Judical Council of California, Civil Jury Instruction 219 (Jan. 2006) (“You do not have to accept an expert’s opinion”). Some jurisdictions went further and singled out particular types of expert testimony for cautionary instructions. The courts have long realized that the determination of time of death (TOD) is a very inexact science. In the classic words of a leading commentator, the expertise on that subject is still in the “dark ages.” Houts, “Time of Death: Still the Dark Ages of Proof,” 10 Trauma 7 (Aug. 1968). It should come as no surprise then that some courts administer a cautionary instruction about TOD testimony. Gruzen v. State, 276 Ark. 149, cert. denied, 459 U.S. 1020 (1982). Many courts have been fearful that lay jurors would attach inordinate weight to statistical testimony. One of the most famous passages in the American law of expert testimony is the California Supreme Court’s pronouncement that “in our computerized society,” statistics can be “a veritable sorcerer.” People v. Collins, 68 Cal. 2d 319, 438 P.2d 33, 66 Cal. Rptr. 497 (1968). In light of that fear, in McAlester v. United Air Lines Inc., 851 F.2d 1249, 1258 (10th Cir. 1988), the 10th Circuit approved a cautionary instruction that “statistics are inherently slippery in nature, are not irrefutable and, like any other kind of evidence, they may be rebutted.” If anything, Blackmun’s remark in Daubert has made trial judges more receptive to such requests. In recent years, there have been some notable cautionary instruction decisions. The first was U.S. v. Starzecpyzel, 880 F. Supp .2d 1027 (S.D.N.Y. 1995). There the trial judge not only ruled that questioned document expertise does not qualify as full-fledged science. The judge also announced that he would give the jury a detailed cautionary instruction about such expertise. In that instruction, the judge bluntly stated that this type of expertise does not amount to science. Id. at 1050. The judge wrote that “forensic documents examiners are not scientists-they are more like artisans.” Id. The judge added that a document examiner’s opinion “may be less precise, less demonstrably accurate, than . . . the opinion of a chemist who testifies as to the results of a standard blood test.” Id. The judge warned the jury that “you should not substitute the forensic document examiner’s opinion for your own reason, judgment, or common sense.” Id. at 1051. In a concurrence in State v. Quintana, 103 P.3d 168, 170-71 (Utah App. 2005), Judge William Thorne advocated a cautionary instruction on fingerprint testimony. The trial judge had given jurors a standard general instruction that they themselves ought to determine the weight and value of expert testimony. Id. at 171 n.3. However, Thorne wanted to take the next step. He contended that “due to the nature of the evidence involved in the testimony . . . the jury should have been instructed that the examiner’s testimony was opinion and not fact and that the jurors should examine the fingerprint evidence independently.” Id. He forcefully asserted that “[i]t is vital that we remove the near mystical awe that fingerprints evoke, and replace it with a more cautious regard for forensic science.” Id. When to request a special cautionary instruction Given these precedents, the opponent should seriously consider requesting a special cautionary instruction about the specific type of expert testimony proffered by the proponent. Of course, the opponent must draft the language and submit the proposed cautionary instruction to the trial judge on a silver platter. If the opponent neglects to do so, in most jurisdictions the opponent waives the issue for purposes of appeal. Drafting a special instruction from scratch can be hard work, but the guidance in A. Elwork, B. Sales & J. Alfini, Making Jury Instructions Understandable (1982) can be extremely helpful in sculpting the instruction. The authors are psycholinguists and provide detailed advice on writing clear, accurate special instructions. Such an instruction can be a potent weapon during closing argument. “One area of trial practice that frequently seems to be shortchanged . . . is that of jury instructions.” Dombroff, “Jury Instructions Can Be Crucial in Trial Process,” Legal Times, Feb. 25, 1985, at 26. In Daubert, Blackmun expressly acknowledged the risk that jurors may find expert testimony “both powerful and quite misleading.” 509 U.S. at 595. He mentioned judicial instruction as one of the “appropriate safeguards” that the trial judges should employ to curb that risk. Id. at 596. In short, Daubert should embolden the opponents of expert testimony to request special cautionary instructions whenever there is a realistic danger that the jury may accept testimony at face value. It is one thing for you to tell jurors that they should be skeptical of the opposing expert’s testimony. It is quite another matter when the judge intervenes and says that to the jury. That is the essence of a cautionary instruction, and post- Daubert counsel should put such instructions to greater use in expert testimony cases. Edward J. Imwinkelried is the Edward L. Barrett Jr. professor of law at the University of California, Davis. He can be reached at [email protected].

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