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The use of expert testimony at trial is expanding. In one study of California trials, Rand Corp. researchers found that experts appeared in 86% of the trials, and that on average, there were 3.3 experts per trial. Gross, Expert Evidence, 1991 Wis. L. Rev. 1113, 1119. However, such testimony can be expensive. A 15-second, computer-generated animation (CGA) may cost $20,000 and, likewise, DNA testimony can be quite costly. Some litigants simply cannot afford such evidence. Thus, the increased use of expert evidence can place poorer litigants at a distinct disadvantage. That imbalance of resources is especially problematic in an adversary system of litigation. Provide the poor litigant with expert services Of course, one way to level the evidentiary playing field is to provide the poor litigant with expert services. Under Ake v. Oklahoma, 470 U.S. 68 (1985), the Constitution sometimes compels the appointment of an expert for an indigent accused. An appointment for an indigent accused is also possible under the Criminal Justice Act. However, in practice, such appointments are few and far between. See generally Giannelli, “Ake v. Oklahoma: The Right to Expert Assistance in a Post-Daubert World,” 89 Cornell L. Rev. 1305 (2004). Moreover, neither Ake nor the Criminal Justice Act provides any relief for impoverished civil litigants. Another way to level the playing field is to exclude expert testimony from wealthier litigants. In a 2006 decision, Commonwealth v. Serge, 586 Pa. 671, 896 A.2d 1170, cert. denied, 127 S. Ct. 275, 166 L. Ed. 2d 211 (2006), in dictum, several members of the Pennsylvania Supreme Court expressed the view that when the opponent cannot afford rebuttal testimony, that state’s Rule 403 sometimes authorizes the trial judge to bar the proponent’s testimony. Pennsylvania’s Rule 403 is identical to Federal Rule of Evidence 403. Rule 403 is the statute that authorizes trial judges to exclude otherwise admissible evidence when the incidental probative dangers outstrip the probative value of the evidence. The statute reads: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” In a survey, several federal district court judges also opined that Rule 403 permits the trial judge to bar the proponent’s expert testimony when the opponent lacks the wherewithal to afford a rebuttal expert. Savikas & Silverman, “Making the Poverty Objection: Parties Without Fancy Exhibits Could Claim Unfair Prejudice, But Not All Judges Would Agree,” NLJ, July 26, 1999, at C1. Is it proper to invoke Rule 403 in that fashion? On the one hand, Rule 403 does not embody any egalitarian objective. Neither the text of the statute, the accompanying advisory committee note, nor any passages in the congressional deliberations over Rule 403 indicate that the drafters intended judges to resort to Rule 403 to compensate for an imbalance of financial resources between the litigants. As quoted above, Rule 403 lists a number of probative dangers. Several other federal rules provisions contain lists. For example, Rule 404(b) lists some of the recognized noncharacter theories of logical relevance of uncharged misconduct. Likewise, Rule 407 enumerates several permissible purposes for introducing evidence of subsequent remedial measures. However, rules 404 and 407 differ fundamentally from Rule 403. The former statutes preface their lists with “such as” to signal that the lists are illustrative, not exhaustive. Rule 403 does not include any comparable prefatory language, and the accompanying advisory committee note states that 403′s list of probative dangers is exclusive. Thus, Rule 403 does not authorize the judge to exclude the proponent’s testimony simply because the jury is likely to find the testimony impressive and the opponent cannot afford to hire a rebuttal witness. On the other hand, given the opponent’s inability to afford a rebuttal expert, on occasion a trial judge would be justified in barring the proponent’s testimony under Rule 403. Rule 403 tasks the trial judge to balance the probative value of the evidence against its incidental probative dangers. One of those dangers is the risk that the jury will attach excessive weight to the testimony. Lempert, “Modeling Relevance,” 75 Mich. L. Rev. 1021, 1027 (1977). An item of evidence is “prejudicial” under Rule 403 if there is a significant risk that the jury will be tempted to assign undue weight to the evidence and thereby commit inferential error. Gold, “Limiting Judicial Discretion to Exclude Prejudicial Evidence,” 18 U.C. Davis L.Rev. 59, 68-69, 83 (1984). In the case of expert testimony, that risk is acute when three factors concur: The proponent’s expert has impressive credentials, the expert’s analytic technique does not include an objective decisional criterion and there are no data as to the error rate for the technique. If the witness has genuine stature in the specialty field, that stature can incline the jury to resolve doubt in favor of accepting the expert’s testimony. When the expert’s analysis is governed by an objective decisional rule � such as the standard that the length of DNA fragments must be within 2% of each other � it is easier for the jurors themselves to decide whether the expert has arrived at a correct conclusion. In contrast, in Chief Justice William H. Rehnquist’s words in General Electric Co. v. Joiner, 522 U.S. 136, 146 (1997), when the standard is essentially subjective, the expert invites the jury to accept his or her conclusion as “ipse dixit.” The Daubert court pointed out that the availability of data as to the technique’s error rate is a pertinent factor in admissibility analysis. 509 U.S. at 594. When that date can be submitted to the jury, it is in a much better position to intelligently determine how much significance to attach to the expert’s opinion. Absent such data, there is a grave risk that the jury will make an unwarranted act of faith in an expert with impressive credentials. To be sure, in many cases, the trial judge has other tools � the invocation of the learned treatise hearsay exception, judicial notice and cautionary instructions � to minimize that risk. Standard texts in the field may contain passages identifying the element of subjectivity in the expert’s technique or that there is a significant or unascertainable error margin. If the proponent’s expert is cooperative and acknowledges the authoritative status of the texts, the opponent can invoke the learned treatise hearsay exception codified in Federal Rule of Evidence 803(18). The opponent can use the texts to dissuade the jury from assigning excessive weight to the proponent’s expert’s conclusion. Suppose that it is well settled in the expert’s specialty that the technique in question suffers from a particular limitation. In that event, the existence of the weakness may be judicially noticeable under Federal Rule 201(b). 1 Gianelli & Imwinkelried, Scientific Evidence, � 1-2 (4th ed. 2007). If so, under Rule 201(g), the judge can instruct the jury about the limitation in the technique or theory. If the judge tells the jury point blank that the expert’s technique is subject to that weakness, the jury is likely to take heed. Dumbroff, “Jury Instructions Can Be Crucial in the Trial Process,” Legal Times, Feb. 25, 1985, at 26. Judge may be able to use cautionary instruction Further, the judge may be able to administer a cautionary instruction about the expert’s testimony to the jury. In Serge, the trial judge gave the jury a cautionary instruction about the proponent’s computer generated animation. 896 A.2d at 1186-87. In Daubert, Justice Harry Blackmun mentioned instructions as one of the tools that a trial judge can employ to assist the jury in evaluating expert testimony. Since Daubert, there has been an incipient trend toward the expanded use of such instructions. “Expert Witness: Cautionary Instructions,” NLJ, July 31, 2006, at 12. In a case in which all three tools come into play, the judge can effectively minimize the risk of the jury’s overvaluation of the testimony by the proponent’s expert. The outright exclusion of evidence under Rule 403 should be a last resort. Petruzzi’s IGA Supermarkets v. Darling-Delaware, 998 F.2d 1224 (3d Cir.), cert.denied, 510 U.S. 994 (1993). However, in an extreme case when the three factors concur and these tools are unavailable to the judge, the drastic step of exclusion under Rule 403 may be warranted. The opponent may be unable to resort to the learned treatise exception. Unless the judge is willing to judicially notice the text’s authoritative status, the opponent must rely on the proponent’s expert to establish that the text qualifies as a learned treatise. The proponent’s expert might adamantly refuse to do so. Even if the judge is willing to judicially notice the scientific proposition, the instruction to the jury may have to be worded weakly. While under 201(g) the judge may give a mandatory judicial instruction in a civil suit, in a criminal case the instruction must be worded in mere permissive terms. A weakly worded instruction may be an ineffective counter to forceful testimony by the proponent’s expert. In most states, trial judges have lost the common-law power to comment on the weight of the evidence. Kalven & Zeisel, The American Jury, 420-22 (1966). It has been argued that absent previous approval of an instruction by an appellate court, the trial judge’s delivery of a cautionary instruction violates the “no comment” rule. Morris, “The Empirical, Historical Case, and Legal Case Against the Cautionary Instruction: A Call for Legislative Reform,” 1988 Duke L.J. 154, 170. 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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