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[Expert] Witness for the Prosecution?

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[Expert] Witness for the Prosecution? Florida International University College of Law eCollections Faculty Publications Faculty Scholarship 2004 What Happens When Dirty Harry Becomes an [Expert] Witness for the Prosecution? Joelle A. Moreno New England School of Law, [email protected] Follow this and additional works at: https://ecollections.law.fiu.edu/faculty_publications Part of the Criminal Procedure Commons, and the Evidence Commons Recommended Citation Joelle A. Moreno, What Happens When Dirty Harry Becomes an [Expert] Witness for the Prosecution? , 79 Tul. L. Rev. 1 (2004). Available at: https://ecollections.law.fiu.edu/faculty_publications/36 This Article is brought to you for free and open access by the Faculty Scholarship at eCollections. It has been accepted for inclusion in Faculty Publications by an authorized administrator of eCollections. For more information, please contact [email protected]. +(,121/,1( Citation: 79 Tul. L. Rev. 1 2004-2005 Content downloaded/printed from HeinOnline (http://heinonline.org) Wed Oct 1 16:56:45 2014 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: https://www.copyright.com/ccc/basicSearch.do? &operation=go&searchType=0 &lastSearch=simple&all=on&titleOrStdNo=0041-3992 TULANE LAW REVIEW VOL. 79 NOVEMBER 2004 No. 1 What Happens When Dirty Harry Becomes an (Expert) Witness for the Prosecution? Jolle Anne Moreno* I. BACKGROUND AND CONTEXT: THE FAILURE OF GOOD INTENTION S.................................................................................. 9 A. The Promise ofa Daubert Revolution ............................... 9 B. The Promise ofa New Rule 702..................................... 12 C Recent EmpiricalEvidence Shows thatDaubert and the New Rule 702 Have Failedto Transform the Crim inal Courts............................................................... 14 II. WITNESS FOR THE PROSECUTION: THE ExPERT POLICE O FFICER ..................................................................................... 18 A. The FederalCourts Assume that Drug Jargon Expetise Is Helpful andReliable .................................... 18 B. Drug JargonExpertise Is Not Reliable........................... 21 1. Testing the Power of New Rule 702 ....................... 23 C Even Reliable Expert Testimony Should Be Excluded ifIt Is Not Helpful .......................................... 25 * Associate Professor of Law, New England School of Law. I am profoundly grateful for thoughtful comments on a draft of this Article from Professor Paul C. Giannelli. I also appreciate the encouragement and advice that I have received from Professors Ronald J. Allen, David E Faigman, Michael J. Saks, and Lawrence M. Solan. Jason Zom provided me with terrific research assistance, and this Article would have been impossible without the support of Dean John F O'Brien and the Trustees of New England School of Law who funded my research with a James R. Lawton Research Grant. Without underestimating my professional gratitude, I reserve my boundless love and appreciation for Ken, Adam, and Nathan. TULANE LA W REVIEW [Vol. 79:1 III. WHAT IS DIRTY HARRY'S FIELD OF EXPERTISE? ......... .. 27 A. The FederalCourtsAssume thatPolice OfficersAre Experts in DrugJargon ................................................... 27 B. The Problems ofExperience-BasedExpertise .............. 29 C Can Anyone Be an Expert in DrugJargon9 ................... 31 1. The Kumho Tire"Intellectual Rigor" Requirem ent .......................................................... 31 2. Drug Jargon Expertise Lacks "Intellectual Rigor" ..................................................................... 33 D Problems Created When the InvestigatingOfficer Testifies as an Expert...................................................... 35 1. Unfair Prejudice ..................................................... 36 2. Juror Confusion ..................................................... 38 IV DIRTY HARRY ON THE STAND: JUDICIAL OVERSIGHT OF THE EXPERT AT TRIAL ................................................................ 38 A. CreatingLirmts Based on the Speculative Nature of the Opinton ....................................................................... 39 B. CreatingLimlts Based on Unwarminted Extrapolations.................................................................. 40 C CreatingLimits Based on Conclusions ofIllegality.......... 41 D CreatingLimits Based on the RelationshipBetween DrugJargon Expert Testimony andPropensity E vidence ......................................................................... 42 1. Is Expert Testimony that the Defendant Understands and Uses Drug Jargon the Functional Equivalent of Propensity Evidence? ........ 43 2. Does a Defendant's Objection to Drug Jargon Expertise Open the Door to Admission of His Prior Convictions Under Rule 404(b)? .................. 44 V CONCLUSION: Do WE NEED MULTIPLE STANDARDS, DIFFERENT STANDARDS, OR A BETTER APPLICATION OF THE EXISTING STANDARD? ............................................................ 46 A. MutpileA dmissibilityStandards ................................... 46 1. The Creation of a Lower Admissibility Standard for Expert Evidence Offered by Criminal Defendants Is Unlikely ........................... 47 2. Admissibility Standards that Vary Depending on the Case and Party Would Create New Problems for the Courts ......................................... 50 B. DifferentAdmissibilityStandards ................................. 51 2004] DIRTYHARRYASANEXPERT WITNESS 3 1. Reliability Normed in Law, Not in the Expert's D iscipline ...............................................................51 2. Reliability as Relevance .........................................52 C Improving Opemton of the ExistingAdmssibility Standard............................................................................ 54 In the aftermath of September 11, "Americans have apparently heeded the U.S. government's advice to prepare for terror attacks, emptying hardware store shelves of duct tape."' Before rushing out to buy duct tape, you should be forewarned that according to the United States Court of Appeals for the District of Columbia, duct tape is a "tool of the narcotics trade."2 This means that a police officer expert testifying for the prosecution may properly tell the jury that duct tape "is often used 'by people in the drug world to bind hands, legs, and mouths of people who are either3 being robbed in the drug world or who need to be maintained." Judges routinely admit expert testimony offered by prosecutors, but frequently exclude expert testimony offered by the defense. A review of federal criminal court cases reveals that 92% of prosecution experts survive defense challenges, while only 33% of defense experts survive challenges by federal prosecutors A recent study of federal appellate criminal cases found that more than 95% of prosecutors' experts are admitted at trial, while fewer than 8% of defense experts are allowed to testify.' 1. Jeanne Meserve, Duct Tape Sales Rise Amid Terror Fears (Feb. 11, 2003), at http://www.cnn.com/2003/US/02/1 /emergencysupplies/ (last visited Oct. 14, 2004): 2. United States v. Moore, 104 E3d 377, 384 (D.C. Cir. 1997) (finding that this opinion testimony was properly admitted because "[t]he fact that duct tape is a tool of the narcotics trade is likely beyond the knowledge of the average juror but is relevant to the issue of Moore's intent to distribute the drugs found in his possession"). 3. Id 4. D. Michael Risinger, Navigating Expert Reliability: Are Criminal Standards of CertaintyBeing Left on the Dock 64 ALB. L. REV. 99, 99 (2000). For a careful and detailed discussion of why the "positivist" reliability standard created by Daubert v Merrell Dow Pharmaceuticals,Inc., 509 U.S. 579 (1993), has a disproportionately negative impact on defense expert witnesses, see Christopher Slobogin, The Structure ofExpertise in Criminal Cases,34 SETON HALL L. REv. 105, 108-09 (2003). 5. See Risinger, supra note 4, at 109-10 (noting that his data reveal that "rarely has a federal prosecutor had proffered expertise excluded on dependability grounds"). 6. This recent study reviewed approximately 700 federal and state appellate criminal court cases. See Jennifer L. Groscup et al., The Effects of Daubert on the Admissibility of Expert Testimony in State andFederalCrminal Cases, 8 PSYCHOL. PUB. PoL'Y & L. 339, 344 (2002). At both adjudicative levels, experts proffered by the prosecution were more likely to be admitted than experts proffered by defendants. At the trial court level, TULANE LA W REVIEW [Vol. 79:1 Why do judges consistently fail to scrutinize prosecution experts? Maybe it is the uniform. The most common prosecution expert witness is a police officer or a federal agent.8 In state and federal criminal trials, law enforcement experts are routinely permitted to testify to opinions and conclusions derived from their on-the-job experience and personal observations.9 Prosecutors rely on police officer experts most frequently in narcotics cases."° In drug cases, law enforcement experts are often asked to interpret ambiguous words or phrases used by the defendant and/or his coconspirators." The purpose of, and problem with, this expert testimony is that it tells jurors precisely which inculpatory inferences they should
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