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29 Table of Contents
29.2 Instruction On Expert Testimony
29.2.1 Duty To Instruct On Testimony Of Expert Witness
29.2.2 Deletion Of The Term “Expert” From Expert Witness Instruction
29.2.3 Duty To Instruct Even If Witness Not Formally Designated An Expert
29.2.4 Consideration Of The Foundation Of The Opinion
29.2.5 Limiting Jury’s Consideration Of Facts Admitted Into Evidence As Basis For Expert’s Opinion
29.2.6 Weighing One Expert Against Another
29.2.7 Expert Witness: Hypothetical Question
29.2.8 Expert Witness: Jury May Believe All, Part Or None Of The Expert Testimony
29.2.9 Court-Appointed Expert Should Be Treated The Same As Any Other
29.2.10 Scientific Tests: Cautionary Instruction Regarding Technical Equipment and Procedures
29.2.11 Child Abuse Expert -- Limiting Instruction
29.2.12 Expert Opinion Testimony: Federal Circuit Model Instructions And Notes
29.2.13 Impeachment Of Expert Witness By Evidence Of Untruthful Character Or Reputation
29.2.14 Jury Reliance On Professional Expertise Of Jurors
29.2.15 Explanatory Instruction Regarding Receipt Of Monetary Fee By Expert Witness
29.2.16 Uncontradicted Expert Can Be
Rejected
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29.2.1 Duty To Instruct On Testimony Of Expert Witness
RATIONALE: Because the jury may tend to give undue weight to expert testimony, it may be appropriate to caution the jury about expert testimony.
POINTS AND AUTHORITIES: Some jurisdictions do not recommend giving an instruction on expert testimony. For example, the Illinois Pattern Jury Instructions recommend that no instruction be given on this subject while noting that the credibility of expert testimony is a proper subject of closing argument. (See ILLINOIS PATTERN JURY INSTRUCTIONS - CRIMINAL, IPI-Criminal 4th 3.18 [Weighing Expert Testimony] (West, 4th ed. 2000).) These jurisdictions assume that the general instruction relating to the jury’s role in determining the weight and credibility of witnesses is sufficient when expert witnesses are involved.
"Nevertheless, the danger that an expert’s testimony will be given undue weight by the jury does exist." (7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 3.07 [Weighing Expert Testimony] ¶ 2 Committee comment (1999); see also U.S. v. Brawner (DC Cir. 1972) 471 F2d 969, 981-83 [noting the influence of expert testimony in prosecutions in which the defendant’s sanity is an issue]; U.S. v. Gold (D. D.C. 1987) 661 FSupp 1127, 1129-30.) Accordingly, in light of such potential danger, an instruction on expert testimony may be appropriate. (See e.g., People v. Housley (CA 1992) 6 CA4th 947, 957-59 [8 CR2d 431] [sua sponte duty to instruct the jury on the proper use of expert testimony]; Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTION 27 [Testimony Of Expert Witness] (1988); 7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 3.07 [Weighing Expert Testimony] (1999); NEW JERSEY MODEL JURY CHARGES - CRIMINAL Chap. 1 (II) Other Non-2C Charges [Expert Testimony] 4/18/77) ¶ 4 (New Jersey ICLE 4th ed. 1997).
Such a cautionary instruction is provided to counter balance the "'myth cult of the expert to whom too many individuals are inclined to look for wisdom.' [Citation.]" (Id. at fn. 1.)
FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.7].
CAVEAT: Use of the term "expert" may unduly influence the jury. (See FORECITE National™ 6.2.15 [Deletion Of The Term "Expert" From Expert Witness Instruction].
RESEARCH NOTES:
See also Manual On Recurring Problems In Criminal Trials [5a. Receipt Of Expert Testimony: Qualification Of Expert Witness].
See also Manual On Recurring Problems In Criminal Trials [5b. Receipt Of Expert Testimony: Determination Of Admissibility Of Expert Testimony].
See also Manual On Recurring Problems In Criminal Trials [5c. Receipt Of Expert Testimony: Expert Opinion Testimony].
See also Manual On Recurring Problems In Criminal Trials [5d. Receipt Of Expert Testimony: Evaluation Of Reasonable Reliance].
See also Manual On Recurring Problems In Criminal Trials [5e. Receipt Of Expert Testimony: Opinion Testimony On Ultimate Issue].
See also generally, FORECITE National™ 305.5.8 [Expert Testimony/Scientific Evidence].
RELATED FEDERAL MODEL INSTRUCTIONS:
See generally, FORECITE National™ 29.2.12 [Expert Opinion Testimony: Federal Circuit Model Instructions And Notes].
SAMPLE INSTRUCTION # 1:
During the trial you heard the testimony of __________, who was described to us as an expert in __________. This witness was permitted to testify even though [he] [she] did not actually witness any of the events involved in this trial.
A person's training and experience may make [him] [her] an expert in a particular field. The law allows an expert to state an opinion here about matters in that particular field. Merely because __________ has expressed an opinion does not mean, however, that you must accept this opinion. As with any other witness, it is up to you to decide whether you believe [his] [her] testimony and choose to rely upon it. Part of that decision will depend on your judgment about whether [his] [her] background of training and experience is sufficient for [him] [her] to give the expert opinion that you heard. You must also decide whether [his] [her] opinions were based on sound reasons, judgment, and information.
[Source: Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTION 27 [Testimony Of Expert Witness] p. 36 (1988).]
SAMPLE INSTRUCTION # 2:
You have heard a witness [witnesses] give opinions about matters requiring special knowledge or skill. You should judge this testimony in the same way that you judge the testimony of any other witness. The fact that such a person has given an opinion does not mean that you are required to accept it. Give the testimony whatever weight you think it deserves, considering the reasons given for the opinion, the witness' qualifications, and all of the other evidence in the case.
[Source: 7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 3.07 [Weighing Expert Testimony] (1999).]
SAMPLE INSTRUCTION # 3:
As jurors you are the sole judges of the credibility and weight of all evidence. The fact that the lawyers and I may have referred to certain witnesses as "experts,"* and that the witnesses may have special knowledge or skill, does not mean that their testimony and opinions are right. When you are deciding the credibility and weight of an expert’s testimony and opinions, consider all the factors that I’ve described earlier that are relevant when evaluating the testimony of any witness. Also consider all other things bearing on credibility and weight, including:
1. The training, education, experience, and ability of the witness.
2. The factual information on which the witness relied.
3. The source and reliability of any information upon which the witness relied.
4. The reasonableness of any explanation the witness gave to support his or her opinion.
* But see FORECITE National™ 29.2.2 [Deletion Of The Term "Expert" From Expert Witness Instruction].
[Cf. PENNSYLVANIA SUGGESTED STANDARD CRIMINAL JURY INSTRUCTIONS, Pa. SSJI (crim) 4.10A [Expert Testimony-Basic Instruction] (Pennsylvania Bar Institute, PBI Press, 1995).]
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29.2.2 Deletion Of The Term "Expert" From Expert Witness Instruction
RATIONALE: Using the term "expert" in jury instructions may improperly mislead the jury into giving greater weight to the evidence than is appropriate.
POINTS AND AUTHORITIES: A way of dealing with the danger that jurors may be unduly deferential to expert opinion testimony is to preclude both the judge and counsel from using the term "expert". Instead, the expert witnesses could be referred to as "opinion witnesses." (See e.g., Stephen A. Saltzburg, "Testimony from an Opinion Witness: Avoid Using the Word ‘Expert’ at Trial," Criminal Justice, Summer 1994, p. 35; see also 5TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 1.17 [Expert Witness] (2001); 7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 3.07 [Weighing Expert Testimony] ¶ 1 Comment (1999) ["term 'expert" has been omitted to avoid the perception that the court credits the testimony of such a witness"]; 11TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL Basic Instruction 7 [Expert Witnesses] (1997) [witness not referred to as expert in body of instruction]; OKLAHOMA UNIFORM JURY INSTRUCTIONS - CRIMINAL, OUJI-CR 9-42 [Credibility Of Opinion Witness] (Oklahoma Center for Criminal Justice, 2nd ed. 1996, 1997 Supp.).)
See also FORECITE National™ 32.2.2 [Improper To Characterize Prosecution Witness As Fingerprint "Expert"].
FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.7; 10.3].
RESEARCH NOTES:
See Manual On Recurring Problems In Criminal Trials [5a. Receipt Of Expert Testimony: Qualification Of Expert Witness].
See also Manual On Recurring Problems In Criminal Trials [5b. Receipt Of Expert Testimony: Determination Of Admissibility Of Expert Testimony].
See also Manual On Recurring Problems In Criminal Trials [5c. Receipt Of Expert Testimony: Expert Opinion Testimony].
See also Manual On Recurring Problems In Criminal Trials [5d. Receipt Of Expert Testimony: Evaluation Of Reasonable Reliance].
See also Manual On Recurring Problems In Criminal Trials [5e. Receipt Of Expert Testimony: Opinion Testimony On Ultimate Issue].
See also generally, FORECITE National™ 305.5.8 [Expert Testimony/Scientific Evidence].
RELATED FEDERAL MODEL INSTRUCTIONS:
See generally, FORECITE National™ 29.2.12 [Expert Opinion Testimony: Federal Circuit Model Instructions And Notes].
SAMPLE INSTRUCTION # 1:
You have heard a witness [witnesses] give opinions about matters requiring special knowledge or skill. You should judge this testimony in the same way that you judge the testimony of any other witness. The fact that such a person has given an opinion does not mean that you are required to accept it. Give the testimony whatever weight you think it deserves, considering the reasons given for the opinion, the witness' qualifications, and all of the other evidence in the case.
[Source: 7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 3.07 [Weighing Expert Testimony] (1999).]
SAMPLE INSTRUCTION # 2:
When knowledge of a technical subject matter might be helpful to the jury, a person having special training or experience in that technical field is permitted to state an opinion concerning those technical matters.
Merely because such a witness has expressed an opinion, however, does not mean that you must accept that opinion. The same as with any other witness, it is up to you to decide whether to rely upon it.
[Source: 11TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL Basic Instruction 7 [Expert Witnesses] (1997).]
SAMPLE INSTRUCTION # 3:
A witness who has special knowledge in a particular matter may give an opinion on that matter.
[Source: IDAHO CRIMINAL JURY INSTRUCTIONS, ICJI 104 [ Trial Procedure And Evidence] ¶ 8 (Idaho Law Foundation, Inc., 1995).]
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29.2.3 Duty To Instruct Even If Witness Not Formally Designated An Expert
RATIONALE: Testimony based upon expertise has the potential to unduly influence jurors, even if the witness is not designated as an expert.
POINTS AND AUTHORITIES: In People v. Razo (UNPUBLISHED) (CA 1990) 217 CA3d 616 [266 CR 158], the Court of Appeal found a sua sponte duty to give a cautionary instruction on expert testimony when the testimony required a special expertise even though the witness was not formally designated as an expert.
In Razo, a detective gave his opinion that the manner of driving by the suspects was drug related. On appeal, the defendant contended that the standard expert witness instruction (CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 2.80 [Expert Testimony–Qualifications Of Expert] (West, 6th Ed. 1996) should have been given sua sponte because the testimony relied upon the officer's expertise. The Attorney General argued that this was not expert testimony and that the witness was not formally designated an expert. The Court of Appeal concluded that the testimony was "beyond the ken of the ordinary person" and therefore the expert witness instruction was required.
FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.3; 5.7].
RESEARCH NOTES:
See also Manual On Recurring Problems In Criminal Trials [5a. Receipt Of Expert Testimony: Qualification Of Expert Witness].
See also Manual On Recurring Problems In Criminal Trials [5b. Receipt Of Expert Testimony: Determination Of Admissibility Of Expert Testimony].
See also Manual On Recurring Problems In Criminal Trials [5c. Receipt Of Expert Testimony: Expert Opinion Testimony].
See also Manual On Recurring Problems In Criminal Trials [5d. Receipt Of Expert Testimony: Evaluation Of Reasonable Reliance].
See also Manual On Recurring Problems In Criminal Trials [5e. Receipt Of Expert Testimony: Opinion Testimony On Ultimate Issue].
See also generally, FORECITE National™ 305.5.8 [Expert Testimony/Scientific Evidence].
RELATED FEDERAL MODEL INSTRUCTIONS:
See generally, FORECITE National™ 29.2.12 [Expert Opinion Testimony: Federal Circuit Model Instructions And Notes].
SAMPLE INSTRUCTION:
Testimony of witness ________ expertise has been admitted. Although witness ______ has not been designated as an expert, you must continue to employ the same scrutiny as if [he] [she] was designated as an expert.
[Source: FORECITE National™.]
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29.2.4 Consideration Of The Foundation Of The Opinion
RATIONALE: A cautionary instruction may be necessary as a safeguard against jurors giving undue weight to expert testimony without considering the source or foundation of the opinion.
POINTS AND AUTHORITIES: It is well established that "... expert opinions, even though uncontradicted, are worth no more than the reasons and factual data upon which they are based." (Griffith v. County Of Los Angeles (CA 1968) 267 CA2d 837, 847 [73 CR 773]; see also U.S. v. McCracken (5th Cir. 1974) 488 F2d 406, 412; Mims v. U.S. (5th Cir. 1967) 375 F2d 135, 140-41; United States Fidelity & Guaranty Co. v. Park (AR 1973) 491 SW2d 791; Western Union Telegraph Co. v. Byrd (AR 1938) 122 SW2d 569, 576; People v. Gardeley (CA 1996) 14 C4th 605, 618 [59 CR2d 356] [reliability of material relied on by expert is a threshold requirement]; Pacific Gas & Electric Co. v. Zuckerman (CA 1987) 189 CA3d 1113, 1135 [234 CR 630] ["The value of opinion evidence rests not in the conclusion reached but in the factors considered and the reasoning employed [citations]"]; People v. Bassett (CA 1969) 71 C2d 153, 166 [77 CR 790]; Sears Roebuck & Co. v. Walls (CA 1960) 178 CA2d 284, 289 [2 CR 847]; Commonwealth v. Patskin (PA 1953) 100 A2d 472, 475 [testimony of expert witnesses is to be considered by the jury in the same manner as other testimony and in the light of other testimony and circumstances in the case; the jury alone determines its value and weight, and may, under the same rules governing other evidence, reject or accept all or any part thereof as they may believe it to be true or false].)
Moreover, when an expert relies on information made known to him or her by others, the reasonableness of the expert's reliance upon that information is "a foundational question affecting the credibility and authority of the expert's opinion." (Mosesian v. Pennwalt Corp. (CA 1987) 191 CA3d 851, 861 [236 CR 778]; see also In re Marriage of Sheldon (CA 1981) 124 CA3d 371, 384 [177 CR 380] [determination of credibility of expert's opinion requires consideration of the reasonableness of underlying factors used in forming that opinion]; Pfingsten v. Westenhaver (CA 1952) 39 C2d 12, 20 [244 P2d 395].) Thus, "[w]here an expert bases his conclusion upon assumptions which are not supported by the record, upon matters which are not reasonably relied upon by other experts, or upon factors which are speculative, remote or conjectural, then his conclusion has no evidentiary value. [Citations]." (Pacific Gas & Electric Co. v. Zuckerman, 189 CA3d at 1135.)
FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.3; 5.8].
RESEARCH NOTES:
See Manual On Recurring Problems In Criminal Trials [5a. Receipt Of Expert Testimony: Qualification Of Expert Witness].
See also Manual On Recurring Problems In Criminal Trials [5b. Receipt Of Expert Testimony: Determination Of Admissibility Of Expert Testimony].
See also Manual On Recurring Problems In Criminal Trials [5c. Receipt Of Expert Testimony: Expert Opinion Testimony].
See also Manual On Recurring Problems In Criminal Trials [5d. Receipt Of Expert Testimony: Evaluation Of Reasonable Reliance].
See also Manual On Recurring Problems In Criminal Trials [5e. Receipt Of Expert Testimony: Opinion Testimony On Ultimate Issue].
See also generally, FORECITE National™ 305.5.8 [Expert Testimony/Scientific Evidence].
RELATED FEDERAL MODEL INSTRUCTIONS:
See generally, FORECITE National™ 29.2.12 [Expert Opinion Testimony: Federal Circuit Model Instructions And Notes].
SAMPLE INSTRUCTION # 1:
You must consider the evidence regarding any fact upon which the witness relied in deciding the value of the opinion. You must also consider the strengths and weaknesses of the reasoning employed by the witness.
Also, if the expert relied on information supplied by others, you must consider the reasonableness of such reliance, as well as any evidence as to the reliability and/or accuracy of the information, in determining the credibility and weight of the expert's testimony.
[Source: FORECITE National™.]
SAMPLE INSTRUCTION # 2:
You may take into consideration facts upon which expert opinion is based, validity of expert's assumptions, reliability of diagnostic and analytic processes used in his determinations, and all other pertinent facts and circumstances.
[Source: State v. Freitas (HI 1980) 608 P2d 408, 412.]
SAMPLE INSTRUCTION # 3:
In deciding what weight, if any, to give an opinion about a matter requiring special knowledge or skill, consider all the relevant factors, including but not limited to:
1. The qualifications and believability of the witness.
2. The facts or materials upon which each opinion is based.
3. The reasons for each opinion.
[Cf. CALIFORNIA JURY INSTRUCTIONS - CIVIL, BAJI 2.40 [Traits Of Character Of Defendant] 1st ¶ (1994); see also NEW JERSEY MODEL JURY CHARGES - CRIMINAL Ch. 1, § 2 [Expert Testimony] ¶ 4 (New Jersey ICLE 4th ed. 1997).]
SAMPLE INSTRUCTION # 4:
The value or weight of an opinion about a matter requiring special knowledge is dependent upon, and no greater than, the facts upon which it is based. Therefore, it is your duty to decide whether the facts upon which such an opinion is based actually exist.
[Source: FORECITE National™.]
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29.2.5 Limiting Jury’s Consideration Of Facts Admitted Into Evidence As Basis For Expert’s Opinion
RATIONALE: When evidence is admitted for the limited purpose of providing the basis of an expert's opinion, a limiting instruction is necessary to assure the jury only uses the evidence for the proper purpose.
POINTS AND AUTHORITIES: "Although FRE 703 permits an expert to base his opinion on hearsay information, it does not explicitly recognize a hearsay exception for this information. Under one view, the jury can consider the information only in evaluating the expert's opinion; it cannot use the information substantively, i.e., for the truth of the assertions contained therein." (Courtroom Criminal Evidence § 1410, p. 509; see also United States v. Wright (DC Cir. 1986) 783 F2d 1091, 1100; United States v. Affleck (10th Cir. 1985) 776 F2d 1451, 1457; United States v. Sims (9th Cir. 1975) 514 F2d 147, 149-50; but see Courtroom Criminal Evidence at p. 509, fn 201-03 [commentators expressing view that information may be used substantively].)
FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.3].
RESEARCH NOTES:
See generally Carlson, Collision Course in Expert Testimony: Limitations on Affirmative Introduction of Underlying Data, 36 U. FLA. L. REV. 234.
"Expert Witnesses Under Rules 703 and 803(4) of the Federal Rules of Evidence: Separating the Wheat from the Chaff," by L. Timothy Perrin (March, 2002). (http://www.law.indiana.edu/ilj/v72/no4/perrin.html)
Annotation, Admissibility Of Testimony Of Expert, As To Basis Of His Opinion, To Matters Otherwise Excludible As Hearsay -- State Cases, 89 ALR4th 456.
Ronald L. Carlson, Experts, Judges, and Commentators: The Underlying Debate About an Expert’s Underlying Data, 47 Mercer L.Rev. 481 (1996).
See also Manual On Recurring Problems In Criminal Trials [5a. Receipt Of Expert Testimony: Qualification Of Expert Witness].
See also Manual On Recurring Problems In Criminal Trials [5b. Receipt Of Expert Testimony: Determination Of Admissibility Of Expert Testimony].
See also Manual On Recurring Problems In Criminal Trials [5c. Receipt Of Expert Testimony: Expert Opinion Testimony].
See also Manual On Recurring Problems In Criminal Trials [5d. Receipt Of Expert Testimony: Evaluation Of Reasonable Reliance].
See also Manual On Recurring Problems In Criminal Trials [5e. Receipt Of Expert Testimony: Opinion Testimony On Ultimate Issue].
See also generally, FORECITE National™ 305.5.8 [Expert Testimony/Scientific Evidence].
RELATED FEDERAL MODEL INSTRUCTIONS:
See generally, FORECITE National™ 29.2.12 [Expert Opinion Testimony: Federal Circuit Model Instructions And Notes].
SAMPLE INSTRUCTION:
In giving [his] [her] opinion, _______________ referred to certain alleged facts which have not been proven by the evidence but which were assumed as part of the basis of ____________________'s opinion. Because these facts have not been proven by the evidence except through __________________'s testimony, you must only consider them for the limited purpose of deciding whether or not to accept ____________________'s opinion. Do not consider those facts for any other purpose.
[Cf. PENNSYLVANIA SUGGESTED STANDARD CRIMINAL JURY INSTRUCTIONS, Pa. SSJI (crim) 4.11 [Limiting Jury’s Consideration Of Facts Not Admitted Into Evidence Except As Basis For Expert’s Opinion] (Pennsylvania Bar Institute, PBI Press, 1995).]
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29.2.6 Weighing One Expert Against Another
RATIONALE: When expert witnesses give conflicting testimony, an explanatory instruction may be appropriate to help the jury understand how to weigh the opinion of one expert against that of another.
POINTS AND AUTHORITIES: It is well established that it is the duty of the jury to weigh the credibility of witness testimony. This duty applies to all witness testimony including experts. However, when conflicting testimony is offered by multiple expert witnesses the jury may become confused about the evidence presented. Therefore, the jury may have to be instructed that it is their duty to weigh and consider the conflicting expert testimony as they choose, and should not give undue weight to testimony from one expert over another. (See e.g., Hall v. State (IN 1980) 405 NE2d 530, 534-35.)
"It rest[s] with the jury to determine the credibility of the expert witnesses and resolve conflicts in their opinions" (Monterey v. W.W. Leasing (CA 1980) 109 CA3d 636, 646 [167 CR 12]; see also Hall v. State (IN 1980) 405 NE2d 530, 535 [instruction correctly told jury that they could consider expert witnesses' relative degrees of qualification when weighing testimony and weigh opinions of experts against other evidence, and instruction did not improperly imply that any witness was automatically entitled to more credibility than any other]; Goddard v. Colonel Bozeman’s Restaurant (WY 1996) 914 P2d 1233, 1238; United States v. Bohle, 475 F2d 872, 874 (2nd Cir. 1973); see also Sand, et al., Modern Federal Jury Instructions (Lexis, 2001), Inst. 7-23, p. 7-100.)
FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.3; 5.7].
RESEARCH NOTES:
See also Manual On Recurring Problems In Criminal Trials [5a. Receipt Of Expert Testimony: Qualification Of Expert Witness].
See also Manual On Recurring Problems In Criminal Trials [5b. Receipt Of Expert Testimony: Determination Of Admissibility Of Expert Testimony].
See also Manual On Recurring Problems In Criminal Trials [5c. Receipt Of Expert Testimony: Expert Opinion Testimony].
See also Manual On Recurring Problems In Criminal Trials [5d. Receipt Of Expert Testimony: Evaluation Of Reasonable Reliance].
See also Manual On Recurring Problems In Criminal Trials [5e. Receipt Of Expert Testimony: Opinion Testimony On Ultimate Issue].
See also generally, FORECITE National™ 305.5.8 [Expert Testimony/Scientific Evidence].
RELATED FEDERAL MODEL INSTRUCTIONS:
See generally, FORECITE National™ 29.2.12 [Expert Opinion Testimony: Federal Circuit Model Instructions And Notes].
SAMPLE INSTRUCTION:
In resolving any conflict that may exist in the testimony of expert witnesses, you should weigh the opinion of one expert against that of another. In doing this, you should consider the relative qualifications and credibility of the expert witnesses, as well as the reasons for each opinion and the facts and other matters upon which it was based.
[Source: FORECITE National™.]
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29.2.7 Expert Witness: Hypothetical Question
RATIONALE: Even if the jury has been generally instructed that questions are not evidence, hypothetical questions, because they assume facts, may require a more specific cautionary instruction.
POINTS AND AUTHORITIES: This use of hypothetical questions is allowed to aid the jury in understanding an expert’s testimony or to aid in gauging the credibility of testimony of other witnesses. However, such opinion does not establish the truth of the facts upon which it is based. (See e.g. McGaw v. Wassmann (WI 1953) 57 NW2d 920, 922.)
Therefore, a cautionary instruction explaining the purpose and limits of hypothetical questions may be appropriate. (See State v. Christiano (CT 1994) 637 A2d 382, 385; see also People v. Frye (CA 1998) 18 C4th 894, 960-61 [77 CR2d 25] [when the evidence pertaining to the assumed facts is in conflict, a trial court’s instruction properly guides the jury]; Commonwealth v. Correa (PA 1993) 620 A2d 497, 502 [instruction that expert opinion testimony is "low-grade" evidence is proper when expert's opinion is based on facts recited in hypothetical question, or expert's opinion is contradicted by direct evidence].)
FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.8; 7.3].
USE NOTE: If the assumed facts are "essential" to the case against the defendant they must be proven beyond a reasonable doubt. (See FORECITE National™ 270.4.2 [Proof Beyond A Reasonable Doubt: Applicable To Subordinate Facts Essential To Proof Of An Element Of A Crime].) The bracketed language in Sample Instruction # 2 is included for this purpose.
RESEARCH NOTES:
See Manual On Recurring Problems In Criminal Trials [5a. Receipt Of Expert Testimony: Qualification Of Expert Witness].
See also Manual On Recurring Problems In Criminal Trials [5b. Receipt Of Expert Testimony: Determination Of Admissibility Of Expert Testimony].
See also Manual On Recurring Problems In Criminal Trials [5c. Receipt Of Expert Testimony: Expert Opinion Testimony].
See also Manual On Recurring Problems In Criminal Trials [5d. Receipt Of Expert Testimony: Evaluation Of Reasonable Reliance].
See also Manual On Recurring Problems In Criminal Trials [5e. Receipt Of Expert Testimony: Opinion Testimony On Ultimate Issue].
See also generally, FORECITE National™ 305.5.8 [Expert Testimony/Scientific Evidence].
RELATED FEDERAL MODEL INSTRUCTIONS:
See generally, FORECITE National™ 29.2.12 [Expert Opinion Testimony: Federal Circuit Model Instructions And Notes].
SAMPLE INSTRUCTION # 1:
Witness _____________ (insert name of expert) was told to assume that certain facts were true and then was asked for an opinion based upon those assumptions. This is called a hypothetical question. The answer to this hypothetical question must not be considered unless the assumed facts upon which the opinion was based are true and correct. Such an opinion does not establish the truth of the facts upon which it is based. If you find that the facts stated in the hypothetical question have not been proven, then the opinion based on those facts must not to be given any weight.
[Cf. WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 205 [Expert Testimony: Hypothetical Question] (University of Wisconsin Law School, 2000).]
SAMPLE INSTRUCTION # 2:
Hypothetical questions neither establish nor tend to establish the truth of the facts upon which they are based. Whether the matters testified to by the witness in the case as facts are true or false is to be decided by the jury alone. You must also decide whether the facts assumed in the hypothetical questions are true.
[See State v. Crane (MO 1907) 100 SW 422, 430.]
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29.2.8 Expert Witness: Jury May Believe All, Part Or None Of The Expert Testimony
RATIONALE: Without specific instruction jurors may not understand that they need not accept or reject an expert in toto but may accept or reject only part of the opinion.
POINTS AND AUTHORITIES: Expert witness testimony can substantially influence the jury. In fact, the very term "expert" insinuates that the testimony is of substantial stature, credibility and weight. (See e.g., FORECITE National™ 29.2.2 [Deletion Of The Term "Expert" From Expert Witness Instruction].) Therefore, it is important for the jury to understand that it is free to accept or reject expert testimony, in part or whole, the same as it would any other testimony. (See e.g., Hooks v. U.S. (DC App. 1977) 373 A2d 909, 912; Byrd v. State (FL 1974) 297 So2d 22, 24; State v. Helgerson (IA 1956) 75 NW2d 227, 232-33 [where medical experts testified in a criminal prosecution, the court should direct the jury to consider such testimony under the same rules of credit and discredit as are applied to other testimony, and that the opinions neither established nor tended to establish the truth of the facts on which they are based, but that whether the matters testified to are true or false should be determined by the jury]; State v. Wertz (MO 1905) 90 SW 838, 842.)
FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.3].
RESEARCH NOTES:
See Manual On Recurring Problems In Criminal Trials [5a. Receipt Of Expert Testimony: Qualification Of Expert Witness].
See also Manual On Recurring Problems In Criminal Trials [5b. Receipt Of Expert Testimony: Determination Of Admissibility Of Expert Testimony].
See also Manual On Recurring Problems In Criminal Trials [5c. Receipt Of Expert Testimony: Expert Opinion Testimony].
See also Manual On Recurring Problems In Criminal Trials [5d. Receipt Of Expert Testimony: Evaluation Of Reasonable Reliance].
See also Manual On Recurring Problems In Criminal Trials [5e. Receipt Of Expert Testimony: Opinion Testimony On Ultimate Issue].
See also generally, FORECITE National™ 305.5.8 [Expert Testimony/Scientific Evidence].
RELATED FEDERAL MODEL INSTRUCTIONS:
See generally, FORECITE National™ 29.2.12 [Expert Opinion Testimony: Federal Circuit Model Instructions And Notes].
SAMPLE INSTRUCTION:
As with any other witness, you may believe or disbelieve all or any part of the testimony of a witness giving an opinion about a matter requiring special skill or knowledge.
[See Hooks v. U.S. (DC App. 1977) 373 A2d 909, 912; cf. FLORIDA STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES 2.04(a) [Expert Witnesses] ¶ 3 (Florida Bar, 1981).]
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29.2.9 Court Appointed Expert Should Be Treated The Same As Any Other
RATIONALE: Without a cautionary instruction the jurors may tend to consider a court-appointed expert differently than other experts. An instruction on a court-appointed expert is needed to remind the jury that the fact that the judge has appointed the expert does not require the jury to believe the expert. The significant thing is that the expert is not paid by or related to either party.
POINTS AND AUTHORITIES: If there is a court-appointed expert, the jury should be instructed that the opinions of such an expert should be given no greater weight than those of any other expert. (See Alexander, MAINE JURY INSTRUCTIONS MANUAL 6-20 comment [Instruction 27-Expert Witness] ¶ 2 (Lexis, 1999); Potuto, Saltzburg, Perlman, FEDERAL CRIMINAL JURY INSTRUCTIONS 2.23 [Cautionary Instruction; Expert Witness] (Lexis, 2nd ed. 1993); but see State v. Larson (MN 1979) 281 NW2d 481, 485 [jury should be entitled to take into account an expert’s court-appointed status in determining the amount of weight to accord his testimony"].)
FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.3; 5.7].
RESEARCH NOTES:
See also Manual On Recurring Problems In Criminal Trials [5a. Receipt Of Expert Testimony: Qualification Of Expert Witness].
See also Manual On Recurring Problems In Criminal Trials [5b. Receipt Of Expert Testimony: Determination Of Admissibility Of Expert Testimony].
See also Manual On Recurring Problems In Criminal Trials [5c. Receipt Of Expert Testimony: Expert Opinion Testimony].
See also Manual On Recurring Problems In Criminal Trials [5d. Receipt Of Expert Testimony: Evaluation Of Reasonable Reliance].
See also Manual On Recurring Problems In Criminal Trials [5e. Receipt Of Expert Testimony: Opinion Testimony On Ultimate Issue].
See also generally, FORECITE National™ 305.5.8 [Expert Testimony/Scientific Evidence].
RELATED FEDERAL MODEL INSTRUCTIONS:
See generally, FORECITE National™ 29.2.12 [Expert Opinion Testimony: Federal Circuit Model Instructions And Notes].
SAMPLE INSTRUCTION # 1:
The fact that a witness was court appointed has no bearing, one way or the other, on the credibility of the witness or the weight of the testimony from that witness.
[Source: FORECITE National™.]
SAMPLE INSTRUCTION # 2:
The Court asked ___________ (name of witness) to testify. This means only that ___________ was not retained by either party. It does not mean that ____________ is a better witness than those called by the parties or that ____________ is more likely to be correct. It is your duty to decide which witness to believe and what weight, if any, to give their testimony.
[Source: FORECITE National™.]
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29.2.10 Scientific Tests: Cautionary Instruction Regarding Technical Equipment And Procedures
RATIONALE: Technical evidence may take on an aura of "scientific truth" in the eyes of the jury. Therefore, cautionary instruction may be appropriate to prevent the jurors from giving undue weight to evidence based on technical equipment and procedures.
POINTS AND AUTHORITIES: MARYLAND CRIMINAL PATTERN JURY INSTRUCTIONS, MPJI-Cr 3.15 [Scientific Tests (No Expert Opinion)] (Micpel, 1999).
See FORECITE National™ 29.3.1 [Challenging Prosecution Forensic Evidence].
FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.3; 5.7].
RESEARCH NOTES:
See also Manual On Recurring Problems In Criminal Trials [5a. Receipt Of Expert Testimony: Qualification Of Expert Witness].
See also Manual On Recurring Problems In Criminal Trials [5b. Receipt Of Expert Testimony: Determination Of Admissibility Of Expert Testimony].
See also Manual On Recurring Problems In Criminal Trials [5c. Receipt Of Expert Testimony: Expert Opinion Testimony].
See also Manual On Recurring Problems In Criminal Trials [5d. Receipt Of Expert Testimony: Evaluation Of Reasonable Reliance].
See also Manual On Recurring Problems In Criminal Trials [5e. Receipt Of Expert Testimony: Opinion Testimony On Ultimate Issue].
See also generally, FORECITE National™ 305.5.8 [Expert Testimony/Scientific Evidence].
RELATED FEDERAL MODEL INSTRUCTIONS:
See generally, FORECITE National™ 29.2.12 [Expert Opinion Testimony: Federal Circuit Model Instructions And Notes].
SAMPLE INSTRUCTION:
Evidence was presented as to the results of _____________ (insert the specific scientific test or process) through the testimony [and/or records] of ___________ (technician). As with any other evidence, you must decide how much weight, if any, to give it. In evaluating this evidence, consider the training and experience of the technician, the equipment that was used and the procedures that were followed.
[Cf. MARYLAND CRIMINAL PATTERN JURY INSTRUCTIONS, MPJI-Cr 3.15 [Scientific Tests (No Expert Opinion)] (Micpel, 1999).]
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29.2.11 Child Abuse Expert -- Limiting Instruction
RATIONALE: Expert testimony that a child is suffering from "Child Sexual Abuse Accommodation Syndrome" is generally admissible, if at all, for limited purposes short of showing that the charged abuse actually occurred. Therefore, due to the inflammatory and prejudicial nature of such testimony, an effective limiting instruction is crucial.
POINTS AND AUTHORITIES: It has been held that expert evidentiary testimony concerning specific behavior of a child abuse victim may be offered to show that their behavior was consistent with child abuse generally. (See e.g., People v. Beckley (MI 1990) 456 NW2d 391, 408-09.) Some jurisdictions require a limiting instruction when Child Sexual Abuse Accommodation Syndrome (CSAAS) evidence is offered. (See e.g., People v. Housley (CA 1992) 6 CA4th 947, 958-59 [8 CR2d 431, 438]; State v. W.L. (NJ 1995) 650 A2d 1035, 1039.) Other courts will not admit testimony concerning CSAAS if offered to prove abuse occurred. (See State v. J.Q. (NJ 1991) 599 A2d 172, 174; 182-83; People v. Logan (NY 1990) 564 NYS2d 885.) Several jurisdictions admit CSAAS testimony solely to rehabilitate the victim’s credibility. (See e.g., State v. Dodson (IA 1989) 452 NW2d 610, 612; People v. Nelson (IL 1990) 561 NE2d 439, 444; People v. Beckley (MI 1990) 456 NW2d 391, 398.) A few jurisdictions never admit CSAAS because it has not attained scientific acceptance. (See e.g., Lantrip v. Commonwealth (KY 1986) 713 SW2d 816; but see Mindombe v. U.S. (DC 2002) 795 A2d 39, 42-44 [expert testimony regarding the behavior of sexually abused children can be admissible regardless of whether there has been an attack on the child complainant's credibility; such testimony is not credibility or character evidence but rather is meant to educate the jury about the range of responses displayed by sexually abused children]; People v. Peterson (MI 1995) 537 NW2d 857, 868 [such expert testimony is admissible during the government's case-in-chief to generally educate the jury about the common behavior of child sexual abuse victims, absent a formal attack on the victim's credibility by defense counsel, in order to "explain[ ] a victim's specific behavior that might be incorrectly construed by the jury as inconsistent with that of an abuse victim"].)
"Generally, limits placed on the admissibility of CSAAS are intended to address its shortcomings due to its limited purpose. Therefore, these courts have fashioned the admission of CSSAS so as to avoid its being relied upon by the prosecution or the jury as proof that the abuse actually occurred." (Frenzel v. State (WY 1993) 849 P2d 741, 747-48.)
FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.1; 7.3].
RESEARCH NOTES:
See "Expert Testimony: Seeking An Appropriate Admissibility Standard For Behavioral Science In Child Sexual Abuse Prosecutions," 48 Duke L.J. 933 (1999).
See "Expert Testimony is Admissible in Child Sexual Abuse Cases to Explain the Victim's Behavior and to Show Consistencies Between the Victim's Behavior and that of a Sexually Abused Victim to Rebut an Attack on the Victim's Credibility. People v. Peterson, 537 N.W.2d 857 (Mich. 1995), 73 U. Det. Mercy L. Rev. 833 (1996).
See "Bad Science: Repressed And Recovered Memories Of
Childhood Sexual Abuse," 44 U. Kan. L. Rev. 517.
See "Throwing the Baby Out With the Bathwater: Why Child Sexual Abuse Accommodation Syndrome Should Be Allowed as a Rehabilitative Tool in the Florida Courts," 55 U. Miami L. Rev. 561 (2001).
See Admissibility of Expert Testimony on Child Sexual Abuse Accommodation Syndrome
(CSAAS) in Criminal Case, 85 A.L.R.5th 595, secs. 4, 5.
See, J. Myers and J. Bays, "Expert Testimony in Child Abuse Litigation", 68 Neb. L.Rev. 1 (1989).
See also Manual On Recurring Problems In Criminal Trials [5a. Receipt Of Expert Testimony: Qualification Of Expert Witness].
See also Manual On Recurring Problems In Criminal Trials [5b. Receipt Of Expert Testimony: Determination Of Admissibility Of Expert Testimony].
See also Manual On Recurring Problems In Criminal Trials [5c. Receipt Of Expert Testimony: Expert Opinion Testimony].
See also Manual On Recurring Problems In Criminal Trials [5d. Receipt Of Expert Testimony: Evaluation Of Reasonable Reliance].
See also Manual On Recurring Problems In Criminal Trials [5e. Receipt Of Expert Testimony: Opinion Testimony On Ultimate Issue].
See also generally, FORECITE National™ 305.3.4 [Child Testimony].
See also generally, FORECITE National™ 305.5.8 [Expert Testimony/Scientific Evidence].
RELATED FEDERAL MODEL INSTRUCTIONS:
See generally, FORECITE National™ 29.2.12 [Expert Opinion Testimony: Federal Circuit Model Instructions And Notes].
SAMPLE INSTRUCTION # 1:
The expert's testimony can be considered by you only for the purpose of understanding and explaining the behavior of [one or more of] the victim[s] in this case, and not as proof that the molestation occurred.
[Source: People v. Gilbert (CA 1992) 5 CA4th 1372, 1387 [7 CR2d 660].]
SAMPLE INSTRUCTION # 2:
The expert testimony is admissible solely for the purpose of showing the victim's reactions as demonstrated by the evidence are not inconsistent with having been molested. The expert's testimony is not intended and must not be used to determine whether the victim's molestation claim is true.
[Source: Adapted from People v. Housley (CA 1992) 6 CA4th 947, 959 [8 CR2d 431].]
SAMPLE INSTRUCTION # 3:
___________ (name of expert) gave an opinion about the behavior of sexually abused children.
You must only consider that evidence for the limited purpose of deciding whether ____________ 's (name of complainant) acts and words after the alleged crime were consistent with those of sexually abused children.
Do not use that evidence to conclude that the crime charged here was committed or that the defendant committed it. Furthermore, you must not treat __________ 's (name of expert) testimony as an opinion that the testimony of ________________ (name of complainant) is truthful and accurate.
[Cf. MICHIGAN CRIMINAL JURY INSTRUCTIONS 20.29 [Limiting Instruction On Expert Testimony (In Child Criminal Sexual Conduct Cases] (ICLE, 2nd ed. 1999).]
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29.2.12 Expert Opinion Testimony: Federal Circuit Model Instructions And Notes
RELATED FEDERAL MODEL INSTRUCTIONS:
See 1st Circuit Pattern Jury Instructions - Criminal 2.06.
See also 6th Circuit Pattern Jury Instructions - Criminal 7.03.
See also 7th Circuit Federal Jury Instructions - Criminal 3.07.
See also 9th Circuit Model Jury Instructions - Criminal 4.17.
See also 11th Circuit Pattern Jury Instructions - Criminal BI 7.
See also Federal Judicial Center, Pattern Criminal Jury Instruction 27.
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29.2.13 Impeachment Of Expert Witness By Evidence Of Untruthful Character Or Reputation
RATIONALE: Without a cautionary instruction the jurors may not understand that the credibility of an expert witness may be impeached by evidence of untruthful character.
POINTS AND AUTHORITIES: On occasion a witness may testify as to the character or reputation of an expert witness for untruthfulness. (See
FRE 608(a).) While argument of counsel will often cover this point, in some circumstances special instruction may be appropriate. (See Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTION 31 [Impeachment By Evidence Of Untruthful Character] commentary (1988); see also 5TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 1.13 [Impeachment By Evidence Of Untruthful Character] (2001); Wharton’s Criminal Evidence ¶ 4:24, pp. 380-84 (West, 14th Ed. 1986).)FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 7.1].
RESEARCH NOTES:
See generally,
FORECITE National™ 305.4.3 [Defendant's Character].RELATED FEDERAL MODEL INSTRUCTIONS:
See 8th Circuit Model Jury Instructions - Criminal 2.10.
See also 8th Circuit Model Jury Instructions - Criminal 4.02.
See also 11th Circuit Pattern Jury Instructions - Criminal BI 6.7.
See also Federal Judicial Center, Pattern Criminal Jury Instructions 31.
SAMPLE INSTRUCTION # 1:
You have heard the testimony of _______, who was a witness in the (government's) (defense) case. You also heard testimony from others concerning (their opinion about whether he is a truthful person) (his reputation in the community where he lives, for telling the truth.) It is up to you to decide from what you heard here whether ______ was telling the truth in this trial. In deciding this, you should bear in mind the testimony concerning his (reputation for) truthfulness.
[Source: Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTION 31 [Impeachment By Evidence Of Untruthful Character] (1988).]
SAMPLE INSTRUCTION # 2:
2001)2001).]You have heard the testimony of _______. You also heard testimony from others concerning [their opinion about whether that witness is a truthful person or the witness's reputation, in the community where the witness lives, for telling the truth]. It is up to you to decide from what you heard here whether _______ was telling the truth in this trial. In deciding this, you should bear in mind the testimony concerning the witness's [reputation for] truthfulness as well as all the other factors already mentioned.
[Source: 5TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 1.13 [Impeachment By Evidence Of Untruthful Character] (
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29.2.14 Jury Reliance On Professional Expertise Of Jurors
PRACTICE NOTE: People v. Maragh (NY 2000) 729 NE2d 701 acknowledged the dangers of having professionals sit as jurors because (1) jurors may conduct personal specialized assessments not within the common ken of juror experience and knowledge; and/or (2) the professional may communicate his or her expert opinion to the rest of the jury panel with the force of private, untested truth as though it were evidence. Accordingly, the court suggested that it might "be useful for trial courts to modify their standard instructions differentiating between ordinary and professional opinions of jurors and directing that jurors may not use their professional expertise to insert facts and evidence outside the record with respect to material issues into the deliberation process." (729 NE2d at 705.)
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29.2.15 Explanatory Instruction Regarding Receipt Of Monetary Fee By Expert Witness
PRACTICE NOTE: In State v. Smith (NJ 2001) 770 A2d 255 the defendant appealed, contending that comments made by the prosecutor with respect to defendant's expert witnesses' compensation, and their relationship to the reliability of their testimony, constituted prosecutorial misconduct that required a new trial. The New Jersey Supreme Court found that the prosecutor's comments improperly implied that because a prosecution witness (a law enforcement officer) was not paid, and the defense experts were, the State's witness was more credible. Further, in practical terms, the prosecutor's remarks could have been understood by the jury as an implied endorsement of the credibility of the State witness. Finally, the court concluded that the prosecutor's remarks were improper and constituted prosecutorial misconduct.
"[W]e note that in criminal cases the State's expert witnesses are almost always unpaid. Accordingly, we
question the fairness of a jury instruction in criminal cases that merely states that the amount of a defense
expert witness' fee is a matter that a jury may consider as possibly affecting the credibility of the witness.
Such an instruction, in a close case, may tip the scales in favor of the credibility of the State's expert
witnesses who, although unpaid, may have an equal or greater interest in the outcome than do
the defense witnesses because they often are employed by a law enforcement agency involved in the
prosecution. We request the Supreme Court Committee on Model Jury Charges, Criminal to consider the issue
and to modify the standard expert witness instruction to achieve better balance in the trial of criminal cases.
(Smith, 770 A2d at 274.)
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29.2.16 Uncontradicted Expert Can Be Rejected
POINTS AND AUTHORITIES: While a jury may not arbitrarily disregard expert testimony, it also may not give conclusive effect to the opinion of an expert merely because that opinion is not challenged by some other expert. (United States v. Harper, 350 F.2d 1000 (5th Cir. 1971).)
SAMPLE INSTRUCTION:
You may reject the testimony of an expert witness even if it is not contradicted.
[See United States v. Harper, 350 F.2d 1000 (5th Cir. 1971).]