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Email Evidence: Overcoming The So-Called “Self-Serving Hearsay” Objection

from Oregon State Bar Litigation Journal, published by Janet Lee Hoffman and Andrew Weiner, Spring 2015

Click to download “Email Evidence: Overcoming The So-Called “Self-Serving Hearsay” Objection”

The use of email and other electronic forms of communication are ubiquitous in our society today. However, the conveniences these modern technologies offer also carry certain risks. While email, instant messaging and texts are certainly fast, they lack many of the formalities inherent with more traditional written mediums. When read in a vacuum, a poor attempt at humor or sarcastic aside can appear to take on a much more sinister meaning. Because email has become a regular part of our daily lives, it can be a rich source of evidence when conflicts arise and those conflicts lead to trial litigation. As a wise law professor once said, never write in an email something that you would not be comfortable seeing enlarged on a video screen and read aloud in a courtroom.[1]

Attorneys for one of the world’s largest law firms, DLA Piper, learned this lesson when emails surfaced in the midst of a civil dispute with a former client over more than $600,000 in past-due legal bills.[2] The former client countersued and offered internal firm emails that had been produced in discovery as evidence of a “sweeping practice of overbilling.” An attorney wrote in one email, “I hear we are already 200k over our estimate—that’s Team DLA Piper!” Another wrote, “[n]ow Vince has random people working full time on random research projects in standard ‘churn that bill baby!’ mode,” adding “[t]hat bill shall know no limits.”[3] In a statement from DLA Piper, the firm said that “[t]he emails were in fact an offensive and inexcusable effort at humor, but in no way reflect actual excessive billing.”[4] The firm reportedly settled the matter, but these damaging emails demonstrate how the informal nature of email correspondence can lead to serious civil liability.

More recently, internal emails between former members and executives of Dewey & Leboeuf, a now bankrupt law firm formerly headquartered in New York City, provided key evidence to support an indictment charging them with dozens of counts of larceny and securities fraud.[5] The four men charged include three attorneys, and the firm’s chief financial officer. In at least one of these emails, they “used the phrase ‘cooking the books’ to describe what they were doing to mislead the firm’s lenders and creditors in setting the stage for a $150 million debt offering.” [6] A handful of other former employees have since pleaded guilty in connection with the alleged accounting fraud scheme, but the four men believed to be at the center of the case continue to assert their innocence.[7] In response to the prosecutor’s claim that the men used “accounting gimmicks and fraud to cheat banks and investors,” defense counsel said that they “lacked criminal intent and the necessary understanding of ‘complicated accounting rules and regulations’ required to be guilty.”[8] Whether this case ultimately goes to trial remains to be seen; however, the defendants would almost certainly seek to admit other email evidence in their defense to put these seemingly damning emails into context and to support their claim of innocence.

The purpose for which an email is offered at trial can have a major impact on whether the court will receive it into evidence. Admission of a party opponent’s email correspondence presents little difficulty.[9] For example, plaintiff ’s counsel could easily have an email written by a company executive, describing his efforts to obtain funding through the use of allegedly false or misleading earnings reports, admitted against the executive in a fraud case. If instead defense counsel sought to offer a follow-up email written by that same executive, suggesting his belief that the earnings reports were accurate and negating the necessary showing of intent, it would likely trigger an objection on the basis of the so-called “self-serving” hearsay rule. Though sometimes used as a catch-all objection, “self-serving” is a proper objection only to a statement that purports to come in as a declaration against penal interest.[10] Because the admission of statements under this particular exception does not extend to non-self-inculpatory statements that were made along with or collateral to self-inculpatory statements, the follow-up email described in the example above may be excluded if offered pursuant to this exception.[11] Yet, there is no independent hearsay rule that self-serving evidence is inadmissible.[12] It could be said that all evidence offered by a party is self-serving in some respect—the self-serving nature of evidence is generally deemed only a matter of weight for the fact-finder to consider.[13] Nevertheless, a party who seeks admission of his or her own email correspondence may face a difficult challenge.

This article is meant as a guide to assist practitioners in navigating the rules of evidence and identifying bases on which to successfully admit a client’s own email evidence when it may be helpful to their client’s case. This article highlights just a few key evidentiary provisions that may serve as means for utilizing this potential source of beneficial evidence at trial.

Back to Basics

The difference between hearsay and prophecy is often one of sequence. Hearsay often turns out to have been prophecy.
– Hubert H. Humphrey

The exclusion of hearsay from admission at trial is one of the oldest and most fundamental rules of evidence. Out-of-court statements, both oral and written, are generally inadmissible if offered for their truth.[14] The reason for their exclusion is that hearsay statements are generally considered to be untrustworthy.[15] Yet, it has been said that the many exceptions essentially swallow the rule. And it is within these exceptions that practitioners must usually operate when seeking to admit a client’s own beneficial or exculpatory email evidence.

First, however, it is vital to determine the purpose for which the email is being offered into evidence. Out-of-court statements offered for things other than their truth are not subject to exclusion as hearsay. For example, an email that describes matters discussed during a particular meeting or event would be admissible as circumstantial evidence that the meeting or event took place. Other non-hearsay uses may include establishing the email’s effect on its recipient or merely that the email was sent or received by a particular party on a particular day.

Assuming instead that text of an email is being offered for its truth, counsel would need to identify a hearsay exception through which to admit it.[16] For emails generated in the course of operating a business, one possibility is for admission as a business record. Alternatively, an email may be offered as evidence of the declarant’s state of mind. The state-of-mind exception may be particularly useful in a criminal case for challenging whether a defendant had the necessary criminal intent; however, it carries with it certain limitations. Depending on the circumstances, an email may also be admissible once opposing counsel “opens the door,” as a prior consistent statement, or pursuant to the rule of completeness. Ultimately, helpful emails should be analyzed carefully and not overlooked merely because they appear to be inadmissible hearsay evidence.

Business as Usual

Information technology and business are becoming inextricably interwoven. I don’t think anybody can talk meaningfully about one without talking about the other. – Bill Gates

The use of email and other digital communication has become standard practice in the business world. It would appear to be common sense that workplace email communications naturally fit within the business records exception of the hearsay rule. That assumption would, however, be incorrect. While the hearsay exception for records of a regularly conducted activity has been held to encompass business emails in certain circumstances, the exception has not been held to apply to all email correspondence made in the regular course of business.

At its core, the business records exception allows for admission of records made (1) at or near the time of the act or event described in the record by someone with personal knowledge of the act or event, (2) in the regular course of business, and (3) as a regular part of the recorded activity.[17] routine record-keeping activities such as monthly inventory reports or daily sales logs are examples of records that fall squarely within the exception.[18] An important rationale for their admissibility is the assumption that records containing information needed for the efficient operation of a business are intrinsically accurate and trustworthy.[19] Email has not historically satisfied this test. In Monotype Corp. PLC v. International Typeface Corp., the Ninth Circuit affirmed the trial court’s exclusion of an email sent by an employee to his superior, which according to the proponent of the evidence was kept in the regular course of business.[20] In its opinion, the court distinguished the email from a bookkeeper’s monthly inventory records and held that the use of email was not a similarly systematic business activity.[21] Moreover, the fact that an employee has the routine practice of drafting an email to memorialize regular daily activities may not be sufficient for admissibility.[22]

Of course, a lot has changed in the twenty years since the Ninth Circuit decision in Monotype Corp. PLC. Recognizing, however, that the practice of generating and systematically retaining email varies considerably from business to business, courts have not taken the position that all emails are admissible business records. In Rogers v. Oregon Trail Electric Consumers Cooperative, Inc., an Oregon district court judge recently adopted a test articulated by the Louisiana district court in a case arising from the Deepwater Horizon oil spill.[23] Under this test, the proponent must establish, in addition to the other requirements noted above, that the email was sent or received pursuant to a policy or business duty to report or record the information within the email.[24] Applying this test, the court denied admission of emails memorializing disciplinary actions at issue in the case. The court emphasized the informal nature of email correspondence and distinguished it from more formal disciplinary memoranda which carry a stronger presumption of accuracy and reliability.[25] Yet, there has been some movement toward the admission of emails under the business records exception.[26] In Volterra Semiconductor Corp. v. Primarion, Inc., for example, a California district court admitted an email, which included technical guidelines for a “flip chip technology” at issue in the case; without providing a detailed analysis, the court merely explains that the proponent of the email established the necessary foundation for admissibility at trial.[27]

It is important to note that the opponent of email evidence offered under the business records exception may still successfully prevent its admission by showing that the source of the email or the circumstances of its creation indicate a lack of trustworthiness. [28] For example, correspondence created in anticipation of litigation or containing errors or omissions revealed by reference to other admissible evidence may be deemed untrustworthy.[29] Its self-serving content is, however, not a sole basis for exclusion. Thus, the business records exception can potentially provide a means for admission of helpful email evidence. Once the proponent establishes that the email satisfies the business records exception’s foundational requirements and withstands challenges to trustworthiness—it can be used at trial for any purpose.

What’s on Your Mind?

In words are seen the state of mind and character and disposition of the speaker. – Plutarch

Email evidence can also be offered to establish a declarant’s then-existing state of mind.[30] Admission of hearsay evidence under Rule 803(3) requires a showing that the declarant’s state of mind is relevant, that the hearsay statement was made close in time to the thoughts or feelings expressed, and that there was little time for reflection.[31] Out-of-court statements describing a declarant’s “intent, plan, motive, design, (or) mental feeling” are all admissible hearsay.[32] The state-of-mind exception rests in part on the notion that there is no greater authority on a person’s thoughts and feelings than the person who experienced them.[33] In some cases, such evidence provides the best source of information to dispute an opponent’s version of events or circumstantial evidence of a party’s intent. Because jurors evaluate all evidence within the framework of a story or narrative to reach conclusions about the facts in a case and to ultimately decide “what happened,” there is tremendous value in being able to present state-of-mind evidence.[34] There is a compelling argument that fair and objective outcomes are more likely when fact-finders have full access to competing narratives and can test which best fits the evidence presented.[35]

Admissibility of statements offered under Rule 803(3) is, however, restricted in several important ways. The rule expressly excludes admission of a “statement of memory or belief to prove the fact remembered or believed.”[36] Thus, a statement that reflects what the declarant would have done had past circumstances been different or one that recalls the defendant’s state of mind during an earlier event would be inadmissible.[37] In Wilson v. Wilson, for example, the court excluded a party’s out-of-court statement that she would have divorced her former husband if she had known about his allegedly unauthorized transfers of assets to a revocable living trust.[38] Further, an expression of a person’s state of mind that suggests forward-looking intent may be admissible to prove that the person later acted in accordance with the statement, but it would not be admissible if offered to support backwards-looking inferences about past actions or events.[39] The defendant in United States v. Miller came up against this limitation when he unsuccessfully tried to admit his own statement as evidence of his earlier state of mind.[40] Approximately two hours after making a confession to federal agents, he told another agent that he was uncertain whether or not he had admitted to unlawful conduct during his earlier interview. He sought to offer this later statement at trial as evidence of his fatigue and confusion from being questioned and to support an argument that his prior admission was unreliable. The court excluded the statement, holding that the passage of time was too great between his statement of confusion and his earlier admission. The gap in time gave the defendant an opportunity to fabricate his explanation, creating a risk that it misrepresented his state of mind at the time he made his earlier admission.[41]

Because statements offered to establish a party’s own state of mind are intrinsically self-serving, they also carry added suspicion regarding trustworthiness. The rule itself is silent on this point, but courts have split on whether statements that otherwise fit the exception should be excluded based on concerns over the declarant’s candor.[42] In United States v. Di Maria, the Second Circuit held that courts cannot exclude a statement that fits within the state-of-mind exception on the basis that it is self-serving. The defendant in Di Maria sought to admit a statement he made to law enforcement at time of his arrest to establish his belief that cigarettes in his possession were bootleg rather than stolen. The court disregarded the government’s contention that the defendant’s statement was “an absolutely classic false exculpatory statement,” explaining that its truth or falsity was for the jury to decide. It concluded that admission of the defendant’s statement was particularly important, however suspect it may be, “when the government is relying on the presumption of guilty knowledge arising from a defendant’s possession of the fruits of a crime recently after its commission.”[43]

The Second Circuit’s reasoning in Di Maria has not been universally adopted. In United States v. Cianci, for example, the First Circuit affirmed exclusion of the defendant’s taped statements offered pursuant to Rule 803(3) based in part on an apparent lack of trustworthiness.[44] The defendant, former Mayor of Providence, Rhode Island, had been charged with more than three dozen counts related to an alleged public corruption scandal. During the course of the investigation, the defendant spoke to an undercover agent posing as a businessman who had contacted him to request a city contract. Referring the agent to another person in his administration, the defendant stated that “[n]o one will ask you for a thing” and “[if] anybody does . . . I’ll . . . have him arrested.”[45] The defendant argued that his statements, made during the period of time the charged conduct allegedly took place, reflected his state of mind and were admissible to prove his intolerance for corruption and his lack of criminal intent. The trial court excluded the statements, concluding that they applied at least in part to past acts of the defendant’s administration and were “to a large extent ‘self-serving’ attempts to cover tracks already made.”[46] The court’s finding that the statements were not wholly contemporaneous with the conduct at issue was central to its determination that the statements were unreliable and should be excluded. In affirming the decision, the appellate court notes that “[s]uch observations are well-established grounds for non-admission.”[47]

Because email is such a prevalent form of communication in our world today, it can be a great resource for establishing an individual’s intent or for challenging circumstantial evidence of a culpable state of mind. Even with the limitations imposed on admissibility pursuant to Rule 803(3), email correspondence may offer a means for explaining a client’s actions and for helping jurors construct a narrative that supports a more favorable theory of the case.

Point Counterpoint

Every truth has two sides; it is as well to look at both, before we commit ourselves to either. – Aesop

The exceptions described above allow for the affirmative presentation of email evidence, but evidence entered by an opposing party can also provide a trigger for admission of otherwise inadmissible hearsay. A party may, for example, introduce prior consistent statements to rebut cross examination that suggests the witness is providing false or misleading testimony.[48] Alternatively, admission of a written or recorded statement by one party may allow for introduction by an opposing party of another part of the same statement or another written or recorded statement “that in fairness ought to be considered at the same time.”[49] When damaging email evidence is offered by an adverse party, these rules can provide effective means for giving the fact-finder a fuller picture and putting harmful evidence into context.

The first of these is Rule 801(d)(1)(B), which allows for admission of prior consistent statements. It applies when a witness is impeached on cross examination, raising questions about the credibility of their testimony. Counsel can then offer evidence regarding out-of-court statements made prior to the time that the supposed motive to lie arose to corroborate the witness’s in-court testimony.[50] Importantly, the foundational requirements that the witness is first impeached by an express or implied charge of recent fabrication or improper motive and that the prior statement was made before the existence of the motive to fabricate are strictly applied.[51] When these situations do arise, emails can provide powerful documentary evidence that not only restores a key witness’s credibility but also puts before the fact-finder evidence that may not otherwise be admissible.

Beneficial email evidence may also be admitted pursuant to the “opened door” rationale.[52] Though often confused with Rule 801(d)(1)(B), it is a separate but related doctrine that allows a party to introduce an entire out-of-court statement once an adversary introduces only a portion for purpose of impeachment.[53] This doctrine applies to both written and oral out-of-court statements offered as evidence at trial. Thus, for a witness impeached with a prior inconsistent statement, it is sufficient that the reminder of the document or statement from which the impeachment evidence was drawn has “significant probative force bearing on credibility apart from mere repetition” and “place[s] the inconsistencies . . . in a broader context, demonstrating that the inconsistencies were a minor part of an otherwise consistent account.”[54] unlike Rule 801(d)(1)(B), however, the witness need not be impeached “by an express or implied charge of recent fabrication or improper motive.”[55] Thus, an entire email chain may be admissible if an opposing party uses only a portion for an impeachment purpose, thereby creating a misimpression regarding its significance.[56] An “opposing party may not pick and choose among prior statements to create an appearance of conflict and then object when this appearance is rebutted by means of a fuller version of the same prior statements.”[57] Of course, only the remaining portion of the statement that clarifies or provides necessary context for the portion used for impeachment is admissible pursuant to the opened door rationale. Any other portion would only be admissible if it fit within another exception or if relevant for a purpose other than to prove the matter asserted.[58]

One final method for responding to an opponent who enters only a portion of an email into evidence is through the principle of completeness.[59] Admissibility pursuant to the principle of completeness is based on the “misleading impression created by taking matters out of context [and] the inadequacy of repair work when delayed to a point later in the trial.”[60] “When one party has made use of a portion of a document, such that misunderstanding or distortion can be averted only through presentation of another portion, the material required for completeness is ipso facto relevant . . . .”[61] This rule functions similarly to the opened door rationale but differs in a few important ways. First, it is not limited to evidence offered for purposes of impeachment. Second, it can only be used for admission of written or recorded statements—a difference that does not affect admissibility of email evidence. Finally, courts will not generally admit evidence pursuant to the principle of completeness if it is otherwise inadmissible hearsay.[62] However, there is some authority to suggest that this limitation should not be strictly applied.[63] As the court in United States v. Sutton explains, “[the principle of completeness] can adequately fulfill its function only by permitting the admission of some otherwise inadmissible evidence when the court finds in fairness that the proffered evidence should be considered contemporaneously.”[64]

Only through careful analysis of an opponent’s exhibits, and a deep understanding of how they fit into the case as a whole, can counsel take full advantage of these exceptions to the hearsay rule. It is not enough to prepare only one’s own presentation of evidence and witnesses. Counsel must also know what to expect from the opposition. By fully preparing, counsel can avoid missing an opportunity for getting helpful and otherwise inadmissible email evidence into jurors’ hands and putting what may be construed as harmful evidence into a favorable context.


Because of the steady rise in the use of email and other electronic correspondence in our society, email evidence is becoming increasingly prevalent in the world of litigation. Trial counsel must devote considerable time and resources reviewing this data and analyzing its potential uses at trial. Getting an early start on what can be a monumental amount of information is essential, and identifying key email evidence is only the first step. When faced with a client’s embarrassing or harmful emails, it can be particularly important to analyze and understand how the client’s helpful email evidence may be admissible to place it into context. A firm grasp of the rules that apply to email evidence is vital for preparing a successful case and overcoming the so-called “self-serving” hearsay objection.


[1] Credit to Toni Berres-Paul, Professor of Legal Analysis and Writing, at Lewis & Clark Law School.
[2] Sharon D. Nelson & John W. Simek, Churn That Bill, Baby! Overbilling in Law Firms, Law Practice Magazine, September/October 2013.
[3] Id.
[4] Molly McDonough, DLA Piper: ‘Churn that bill’ email was ‘inexcusable effort at humor’, ABA JournaL, Mar. 27, 2013, effort_at_humor.
[5] Matthew Goldstein, 4 Accused in Law Firm Fraud Ignored a Maxim: Don’t Email, the New York Times, Mar. 6, 2014, http://dealbook.nytimes. com/2014/03/06/former-top-leaders-of-dewey-leboeuf-are-indicted.
[6] Id.
[7] Bernard Vaughan, Former Dewey Law Firm Leaders Ask Judge to Dismiss Criminal Case, Insurance Journal, July 15, 2014,
[8] Id.
[9] See Fed. R. Evid. 801(d)(2). Parallel citations in the Oregon Rules of Evidence to the Federal Rules of Evidence cited in this article can be found at ORS 40.010 et seq.
[10] See Fed. R. Evid. 804(b)(3).
[11] See Williamson v. United States, 512 U.S. 594 (1994).
[12] See Wright v. Swan, 261 Or. 440, 447–48 (1972).
[13] Id. at 451.
[14] Fed. R. Evid. 802.
[15] See Chambers v. Mississippi, 410 U.S. 284, 298 (1973).
[16] For purposes of this article, it is assumed that the proponent of the email evidence is able to first authenticate it. Federal Rule of Evidence 901(a) requires only “evidence sufficient to support a finding that the item is what the proponent claims it is.” An email may be authenticated by reference to its “appearance, contents, substance, internal patterns, or other distinctive characteristics.” Fed. R. Evid. 901(b)(4).
[17] Fed. R. Evid.803(6).
[18] See Monotype Corp. PLC v. Int’l Typeface Corp., 43 F.3d 443, 450 (9th Cir. 1994).
[19] United States v. Miller, 830 F.2d 1073, 1077 (9th Cir. 1987).
[20] Monotype Corp. PLC, 43 F.3d at 450.
[21] Id.
[22] See 4 Christopher B Mueller & Laird C. KirkPatrick, Federal evidence § 8:79 (4th ed. 2014) (citing Monotype Corp. PLC for its conclusion that emails not “adapted to permanent and more systematic recordkeeping purposes” do not satisfy the “regular practice” requirement of the rule).
[23] Rogers v. Oregon Trail Electric Consumers Cooperative, Inc., 2012 U.S. Dist. LEXIS 65883, *24–27 (D. Or. May 8, 2012) (citing In re Oil Rig “Deepwater Horizon”, 2012 U.S. Dist. LEXIS 3406 (E.D. La. Jan. 11, 2012)).
[24] Id.
[25] Id. at *27–28.
[26] Id. at *23–24 (citing cases in the Oregon and California district courts).
[27] Volterra Semiconductor Corp. v. Primarion, Inc., 2011 U.S. Dist. LEXIS 102295, *22 (N.D. Cal. Sept. 12, 2011).
[28] Fed. R. Evid. 803(6)(e).
[29] See e.g., United States v. Olano, 62 F.3d 1180, 1205–06 (9th Cir. 1995).
[30] Fed.R. Evid. 803(3); see also Leelanau Wine Cellars, Ltd. v. Black & Red, Inc., 452 F. Supp. 2d 772 (W.D. Mich. 2006) (admitting email evidence to establish the declarant’s confusion).
[31] United States v. Ponticelli, 622 F.2d 985, 991 (9th Cir. 1980) overruled on other grounds by United States v. Bright, 730 F.3d 1255 (1984); United States v. Emmert, 829 F.2d 805 (9th Cir. 1987).
[32] Ponticelli, 622 F.2d at 991.
[33] See id. (noting that a declarant “presumably knows what his thoughts and emotions are at the time of his declarations”).
[34] See Eleanor Swift, Narrative Theory, FRE 803(3),and Criminal Defendants’ Post-Crime State of Mind Hearsay, 38 seton haLL L. rev. 975, 980 (2008).
[35] Id. at 983–84 (citing Justice Souter’s opinion in Old Chief v. United States, 519 U.S. 172 (1997)). In Old Chief, the Court discusses the trial court’s role in making evidentiary rulings and the importance of “an appreciation of the offering party’s need for evidentiary richness and narrative integrity in presenting a case.” 519 U.S. at 183.
[36] Fed. r. evid. 803(6)(e) (exception for statements that relate “to the validity or terms” of a declarant’s will); United States v. Sayakhom, 186 F.3d 928, 937 (9th Cir. 1999) (holding defendant’s “attempt to introduce statements of her belief (that she was not violating the law) to prove the fact believed (that she was acting in good-faith) is improper”).
[37] See e.g., Wilson v. Wilson, 224 Or. App. 360, 365–66 (2008).
[38] Id.
[39] Shepard v. United States, 290 U.S. 96, 104–06 (1933); United States v. Miller, 874 F.2d 1255, 1263–65 (9th Cir. 1989).
[40] Miller, 874 F.2d at 1264.
[41] Id.
[42] Compare United States v. Di Maria, 727 F.2d 265 (2d Cir. 1984) (noting that only the business records and catch-all exceptions expressly include express language regarding trustworthiness) with United States v. Cianci, 378 F.3d 71 (1st Cir. 2004) and United States v. Naiden, 424 F.3d 718 (8th Cir. 2005).
[43] Di Maria, 727 F.2d at 270–72.
[44] Cianci, 378 F.3d at 105–07.
[45] Id. at 105.
[46] Id. at 106.
[47] Id. at 106–07.
[48] Fed. R. Evid. 801(d)(1)(B).
[49] Fed. R. Evid. 106.
[50] United States v. Collicott, 92 F.3d 973, 979 (9th Cir. 1996).
[51] Id. (citing Tome v. United States, 513 U.S. 150 (1995)).
[52] Id. at 979–80; see also United States v. Payne, 944 F.3d 1458, 1471, n. 12 (9th Cir. 1991).
[53] Collicott, 92 F.3d at 980, n. 3.
[54] Payne, 944 F.3d at 1471 (internal quotation omitted).
[55] Collicott, 92 F.3d at 980, n. 5 (listing five main forms of impeachment: (1 prior inconsistent statements; (2) bias; (3) attacking witness’s character for truthfulness; (4) attacking witness’s perception or memory; and (5) contradicting witness’s testimony).
[56] Counsel should be mindful that email chains often contain hearsay within hearsay. Each layer of hearsay must independently fit within a hearsay exception to be admissible. Fed. r. evid. 805.
[57] See Collicott, 92 F.3d at 980–81 (quoting United States v. Tarantino, 846 F.2d 1384, 1411 (D.C. Cir. 1988)).
[58] Id. at 981, n.8.
[59] Fed. r. evid. 106.
[60] Id., Advisory Committee Notes.
[61] Beech Aircraft Corp. v. Rainey, 488 U.S. 153 (1988).
[62] Collicott, 92 F.3d at 983.
[63] Id. (citing United States v. Sutton, 801 F.2d 1346 (D.C. Cir. 1986)).
[64] Sutton, 801 F.2d at 1368.

The Juror as Audience: The Impact of Non-Verbal Communication at Trial

from Oregon State Bar Litigation Journal, published by Janet Lee Hoffman and Andrew Weiner, Fall 2013

Click to download “The Juror as Audience: The Impact of Non-Verbal Communication at Trial”

Some of the most significant evidence presented at trial is not governed by the rules of admissibility and may be received by jurors without counsel even being aware of its presentation. Years ago I served as a juror in a three-week trial. I was struck at the time by the extent to which I was drawn to and distracted by the non-verbal, non-testimonial information conveyed each day during the proceeding. I found myself observing not only the participants in the proceeding itself but also the spectators in the gallery. I remember taking notice of one testifying expert who returned most days to watch the trial unfold. On days he failed to show up, I wondered if that day’s testimony was less important.

During my years as an advocate, I have often been reminded that jurors are taking in this kind of information. Following one trial in which my client received a favorable verdict, several jurors later told me they had observed that I had been ill during the course of the trial. Notwithstanding my best efforts to disguise my symptoms, the jurors picked up on how I was feeling. They recalled being concerned about how my illness was impacting me and appreciated my efforts to appear each morning for court.

In another case, I sat across from an attorney who flamboyantly emphasized certain points he argued by wadding up his notes and tossing the crumpled paper into a waste basket in true basketball fashion. I found out later that his theatrics amused the jurors; they even spent time imitating him during their deliberations. His efforts to impress, however, distracted from his argument. And although he demonstrated a flair for the theatrical, he failed to win his case.

Jurors are sworn to decide cases based solely on the evidence presented and the application of the law to the evidence. Yet, they are exposed daily, both inside and outside the courtroom, to so much more information than is admitted into the record. As illustrated by the events described above, jurors are impacted in some ways by litigants’ behavior, comportment and other non-verbal communication. How much these factors actually affect jury verdicts is unknown, nevertheless one should be mindful that jurors notice. For example, following a recent lengthy trial, jurors commented to the court that they felt some of the parties were not paying attention to witnesses’ testimony if the litigants did not believe the testimony was relevant to their case. This trial reminded me of the dynamic effect non-testimonial information has on jurors and triggered my interest in exploring the impact of non-evidentiary information in courtrooms. By understanding the different ways non-verbal information is communicated, trial counsel can optimize its impact in their own presentation and will know when to object to certain forms of non-verbal communication that could prejudice the client.

Below is a synthesis of information gathered from research scientists, jury consultants and courts who have examined the impact of non-verbal communications on jurors. This article also addresses the court’s role in safeguarding against forms of non-verbal communication that may prejudice a litigant and counsel’s role in actively managing the effect of these potentially powerful forms of communication.

What Is Non-Verbal Communication?

When the eyes say one thing, and the tongue another, a practiced man relies on the language of the first. – Ralph Waldo Emerson

Jurors are generally instructed to consider only evidence (i.e., testimony and exhibits) when deciding a case.[1] Yet, the courtroom is not a laboratory in which jurors scientifically evaluate evidence in a sterile environment.[2] The trial process boils down to formally introduced evidence and argument mixed with a variety of non-verbal communication, which may at times yield unpredictable results. Model jury instructions capture this dynamic with regard to the non-verbal component of witness testimony, noting that the assumption that a witness’s testimony is truthful may be overcome by the manner in which the witness testifies and nature and quality of that testimony.[3] The model instructions, however, do not address the messages that are conveyed to jurors through various forms of non-verbal communication by those who are not witnesses or by witnesses when they are off the witness stand.

One of the first steps in understanding and managing the effect of non-verbal communication on jurors is to consider the jurors themselves. Prior to being called for service, most jurors have never before set foot into a courtroom. They come from all walks of life and often arrive with an expectation that their experience in court will mirror scenes from popular movies and television. With few exceptions, trial is rarely that exciting or dramatic. Nevertheless, trial consultant, Tom Capps, notes that “jurors often try to uncover some of the drama they expected by closely observing all of the participants in the courtroom.”[4] Through even the most subtle non-verbal cues, jurors attempt to discover a hidden narrative that exists in the shadows behind the testimony of witnesses and other evidence presented in the case.[5]

Non-verbal communication is most commonly recognized as “body language.” Eye contact, facial expressions, gestures, and posture all convey information to an observant juror. Other forms of non-verbal communication, such as dress and appearance, the relative proximity of counsel and litigant to the jury, paralanguage (speech rate, volume, variations in pitch), and the presence of spectators in the gallery, may also effect jurors’ impressions.[6] The use of eye contact, higher vocal volume and synchronized hand gestures are a few factors that have been associated with persuasiveness and confidence. Conversely, speaking in a monotone and frequent self-touching are signals that the speaker is less assured. Of course, the relative weight and impact of these different forms of non-verbal communication vary as they are measured through the subjective lens of individual jurors.[7]

The impact of non-verbal communications has been studied in the context of demonstrative exhibits. When used in personal injury cases or criminal prosecutions involving violent crimes, research shows that graphic images contribute to increased damage awards and higher conviction rates.[8] In a scientific study on this effect, sample jurors were given a product liability case package in which an infant’s hand had been severely burned by a steam vaporizer—the facts slightly and intentionally skewed in favor of the defense. The jurors were separated into three groups: the first received detailed descriptions of the injury but no photos, the second received graphic photos taken immediately after the incident, and the third received both the injury photos as well as post-recovery photos.[9] In both groups shown the graphic images of the plaintiff’s injury, jurors awarded significantly higher non-economic damages.[10] Interestingly, the influence of the photos on jurors’ determination of liability was also dramatic: 58% of jurors in the group shown no photos found in favor of the defendant, 51% of jurors shown the graphic photos found in favor of the plaintiff; and 60% of jurors shown both sets of photos returned defense verdicts.[11] These results not only confirm the influence graphic imagery has on jurors’ perceptions when assessing damages, but also its improper effect on liability verdicts.

Jurors Have a Virtual Backstage Pass

In the theatrical works we love and admire the most, the ending of the drama generally takes place offstage. – Gustav Mahler

The difference between the formal presentation of evidence and information communicated through non-verbal means can be understood in terms of a theater performance. Witness testimony is part of the performance given “on stage,” while non-verbal communication of information occurs through jurors’ “offstage observations.”[12] Unlike a traditional theater setting where actors waiting offstage are unseen by members of the audience, in the courtroom, litigants and counsel cannot hide backstage when it is not their turn in the limelight. Jurors have a virtual pass to observe the actors backstage and are able to view each of the players throughout the course of the proceeding.[13] Nor are these offstage observations limited to the courtroom itself; jurors may also be affected by observing trial actors’ behavior in elevators, hallways, restrooms and even outside the courthouse.[14]

The effects of these so-called offstage observations vary among individual jurors. For example, studies on the effect of a defendant’s physical attractiveness on jurors indicate more favorable outcomes for those perceived as attractive.[15] Yet, physical attractiveness being a distinctly personal preference may not impact any one juror in the same way.[16] Similarly, different jurors may interpret a defendant’s tendency to fidget—often an indication of anxiety or boredom—as communicating the worry of the innocently accused or the idleness of a guilty mind simply waiting for the inevitable guilty verdict.[17]

In a recent study published in the journal Law & Human Behavior, researchers attempted to quantify the influence of offstage observations on individual jurors and whether they have a carry-over effect on group deliberations.[18] The study found that jurors’ discussions about offstage observations had little measurable effect on the trial outcomes.[19] This conclusion is supported by the fact that merely 1.5% of juror discussion topics across all 50 cases in the study involved offstage observations.[20] Further, the majority of jurors’ valenced remarks (i.e. favoring one party over the other) focused negatively on plaintiffs, yet less than one-quarter of these cases resulted in a defense verdict.[21] Although the study found that offstage observations discussed by jurors during deliberations had little effect on verdicts, the study did not attempt to evaluate nor reach a conclusion regarding the impact of observations that were not openly discussed among jurors.

Another interesting discovery from this study was jurors’ keen awareness of attempts by trial participants, particularly litigants, to “perform for the jury through displays of strong emotion or back-channel comments about witness’s testimony.”[22] Jurors’ critical remarks about these types of efforts highlight the common misconception that jurors are gullible and easily fooled.[23] The study’s authors also note that because many criminal defendants elect not to testify at trial, jurors in criminal trials may focus on and rely more heavily on offstage observations.[24] What is not known or quantified is the extent of the impact these observations may have had on individual jurors or how the observations of one juror may shape the attitudes of other jurors. However, the study established that jurors are exposed to and consider far more information throughout the trial process than what is admitted as evidence.

All Rise

Power is the most persuasive rhetoric. – Friedrich Schiller

Non-verbal cues from judges can have a profound influence on jurors. Of all the courtroom actors, the person who holds the most power, and whose influence on jurors may be greatest, is the judge.[25] Part of the reason judges’ potential influence on jurors is so great is based on what has been called the Rosenthal Effect.[26] The Rosenthal Effect, named after psychology professor and researcher Robert Rosenthal, occurs when individuals modify their behavior to conform with what they perceive to the expectation of the person in authority.[27] In the courtroom, that person is the judge. The trial judge guides jurors on procedures they must follow and manages the jurors throughout the proceeding.

One of the best places for counsel to actively reduce the potential influence of a trial judge’s bias is during the reading of the jury instructions. Researchers have found that the use of model instructions, which are often formally worded and confusing to a lay person, lead jurors to rely on non-verbal cues from the judge more so than the use of modified instructions that are more easily understood.[28] By making an effort to simplify jury instruction, counsel can aid jurors in understanding their duties at trial and minimize the risk that they will lean on their perceptions of the trial judge’s biases in reaching their verdict.

Of course, even most well-intentioned and competent trial judges are times unable to prevent their non-verbal behavior from showing how they feel about a party or counsel and thereby unwittingly reveal a bias. In State v. Mains, the Oregon Supreme Court considered the effect of a trial court judge’s seemingly biased approach to questioning a defense expert during cross-examination.[29] Recognizing jurors’ sensitivity to both words and non-verbal communications of trial court judges, the court notes that excessive intervention by a trial judge “diminishes the effectiveness of the adversary system and may deprive a litigant of his right to an impartially administered trial.”[30] Indeed, Oregon trial court judges are prohibited from instructing jurors or making comments “with respect to matters of fact.”[31] Notably, the Federal Rules contain no similar restriction.[32]

The judge’s role is meant to be one of impartiality.[33] Indeed, the court must remain unbiased not only in its actions, but must avoid even the appearance of prejudice through the use of language or conduct.[34] Yet, even the most careful judges are subject to their own human nature. Often having access to much more information than what is presented to jurors, trial judges may draw their own conclusions about testifying witnesses or the weight of the evidence. Armed with this information, a judge is at times unable to avoid transmitting subtle cues to jurors through non-verbal behavior as evidence is presented. The Alabama Supreme Court in Allen v. State acknowledged and accepted that judges transmit information to jurors when it wrote the following: “The trial judge is a human being, not an automaton or a robot. He is not required to be a Great Stone Face which shows no reaction to anything that happens in his courtroom.”[35]

For this reason, trial counsel should observe the court’s manner and demeanor and, if necessary to preserve the fairness of the proceeding, make timely objection to any expression of bias against her client. Such an objection should be made only when counsel believes the bias will seriously prejudice the client’s rights since counsel’s objections to comments or expressions of the trial court might alienate the judge and possibly the jury. When objecting, counsel should be sure to include a detailed description of the conduct at issue to be sure that the nuances of the court’s non-verbal acts are fully and fairly considered on appeal.[36] Counsel should also request that the court provide a curative instruction directing the jurors to disregard the court’s actions. Success on appeal depends on a showing that the court’s conduct created “such a likelihood of bias or an appearance of bias that the judge was unable to hold the balance between vindicating the interest of the court and the interests of the accused.”[37]

Dress for Success

Clothes make the man. Naked people have little or no influence on society. – Mark Twain

A client’s physical appearance both on and off the witness stand conveys a great deal to jurors. Similarly, counsel’s attire can draw the attention of both jurors and the court, though not always in the best way. Counsel should wear “comfortable, well-fitting clothes that are in good repair” and avoid clothing or hairstyles that are too distracting.[38] As a general matter, all persons attending court must be dressed appropriately.[39] Within this restriction, counsel has broad latitude in advising clients how best to present themselves.

In her article on the theater of the courtroom, Loyola Law School professor Laurie L. Levenson discusses how the defendants’ attire and demeanor during the 1993 trial of the infamous Menendez brothers influenced jurors’ impressions of the accused.[40] Lyle and Erik Menendez were ultimately convicted of the brutal murder of their parents, but not before jurors in their first trial could not agree whether to convict them of murder or manslaughter and failed to reach a verdict.[41] The two brothers, who were in their early twenties at the time of the first trial, appeared in court wearing crewneck sweaters, button-down shirts and slacks. The outfits, which gave them an appearance of youthful innocence compared with a more formal suit and tie, were discussed by jurors during deliberations.[42] In a book recounting her experience as a juror in the first Menendez trial, Hazel Thornton recalled jurors’ recognition that the outfits, along with defense counsel’s reference to the defendants as “boys” and her maternal behavior in court, were intended to elicit sympathy from jurors.[43] Ms. Thornton’s account illustrates jurors’ awareness of so-called “offstage observations” and the effect it has on jurors’ consideration of formally admitted evidence, though in that case, awareness by some jurors that they were being manipulated was not enough for a conviction.

I personally experienced the effect a client’s attire can have on jurors in a case I tried as a young, inexperienced lawyer. My client was facing rape and kidnapping charges and I wanted to soften his appearance. I had him appear for court wearing a sweater, but the sweater fit him too tightly and highlighted his muscular physique. I only noticed this unintended effect on his appearance when I called him to the stand to testify. Rather than appearing benign and harmless, the too-tight ribbed sweater made him look strong and physically powerful and sent the wrong message to jurors.

In a practice not endorsed by this author, a criminal defendant’s use of nonprescriptive eyeglasses while appearing in court is another example of how appearance can affect jurors’ perceptions.[44] While eyeglasses are primarily worn by persons with vision defects, their use as a fashion accessory is on the rise.[45] Characterized as the “nerd defense,” the use of unnecessary eyeglasses plays on the commonly held stereotype that people who wear eyeglasses have a high intelligence.[46] Some attorneys assert that the use of eyeglasses is highly effective for conveying an appearance of innocence.[47] However, it is important to note that this positive influence on jurors’ perception may be limited to cases involving violent crimes. In white-collar crime cases, defendants wearing eyeglasses were more often perceived as guilty.[48]

Further, the practice of outfitting a client in spectacles in an effort to influence jurors’ perceptions can backfire. In a recent and highly publicized case in Washington, D.C., Orlando Carter and four other men were charged with multiple counts of murder for their alleged roles in what was described as the South Capitol Street Massacre.[49] Each of the defendants arrived for trial wearing noticeably large-framed and heavy-rimmed glasses.[50] Prior to trial, only one of the five defendants had ever appeared during pretrial hearings wearing eyeglasses.[51] By eliciting testimony that witnesses had never seen the defendants wearing glasses in the past, prosecutors exposed the defendants’ attempt to manipulate jurors’ perceptions—a revelation that may have contributed to the guilty verdict.[52]

The use of nonprescriptive eyeglasses to influence jurors’ perceptions also raises an ethical question. Under the Oregon Rules of Professional Conduct, a lawyer is prohibited from engaging “in conduct involving dishonesty, fraud, deceit or misrepresentation . . . .”[53] Advising a client to wear unnecessary eyeglasses may be nothing like rolling a perfectly healthy plaintiff into court in a wheelchair in a personal injury claim, yet both involve the use of a prop designed to influence how the client is perceived. Certainly the comparison is more apt in a criminal case where the defendant’s identity is at issue.[54]

Courts also recognize the impact a defendant’s physical appearance has on jurors’ evaluation of guilt or innocence. For example, the United States Supreme Court has held that the use of visible shackles on a defendant undermines the fundamental presumption that a criminal defendant is innocent until proven guilty.[55] Only in cases where the government can show a substantial need based on safety concerns or risk of escape can a defendant be compelled to appear before jurors while visibly shackled.[56] However, the Court is careful to distinguish between a defendant appearing before jurors in shackles, which it describes as “inherently prejudicial,” and a defendant who is forced to appear in prison garb.[57] Rather than adopt a “mechanical rule vitiating any conviction, regardless of the circumstances,” in which a defendant is compelled to appear in prison clothes, the Court recognizes circumstances in which a defendant may elect to appear in prison attire hoping to elicit sympathy.[58] In these cases, a defendant’s failure to raise a timely objection negates the compulsion necessary to establish a constitutional violation.[59]

As the above cases illustrate, a client’s appearance can have a real and profound impact on how jurors perceive the client. Assisting clients to cultivate an image that meshes with the narrative counsel presents at trial is an effective tool for connecting with jurors in a positive way and helps to make a favorable impression. For example, a civil plaintiff’s conservative dress and conduct at trial may be effective in conveying to jurors that he is a sympathetic victim. Similarly, a criminal defendant’s appearance and demeanor might convey a message of contrition or suggest that he is incapable of committing the crimes for which he has been charged. However, counsel should exercise restraint when advising clients on how to appear in court and remain cognizant of jurors’ ability to see through an obvious charade.

May I Sit Here?

Where you stand depends on where you sit. – Nelson Mandela

Just as a person’s physical appearance can play an important role in how he is perceived, a party’s relative proximity to the jury box is also important.[60] Anthropologist Edward T. Hall describes four zones of space that exist around a person: (1) intimate space extending out only eighteen inches, (2) personal space stretching out to four feet, (3) social distance reaching out twelve feet, and (4) public distance in the space beyond.[61] Hall further describes social distance as the space used by “people who work together,” while people who are at a public distance are “outside the ‘circle of involvement.’”[62] In this sense, the party sitting nearest the jury box is more likely to be within the social distance, giving him a distinct advantage in making a personal connection with jurors over the party sitting further away.[63]

In federal criminal trials, the prosecution generally sits at counsel table closest to the jury box. Often, government investigators and experts (e.g. FBI or IRS agents) sit just behind the prosecution. As a result, the entire prosecution team is seated in the immediate vicinity of jurors, or as Hall describes in his work, inside the social distance zone. By occupying this space, prosecutors enjoy a certain intimacy and connection with jurors.

Regardless of this practice, seating arrangements in the courtroom are within the trial judge’s discretion.[64] When challenged by defense attorneys, the most common objections are that the state’s burden of proof entitles it to the advantage of being closer to jurors or that the prosecution must be positioned between a defendant and jurors as a bulwark to protect their physical safety.[65] Indeed, the government made this objection when an attorney for Kenneth Lay, former head of Enron Corporation, requested that he and his client be seated at the table nearest to the jury during his high profile case in Texas District Court.[66] Describing his decision as guided by “fairness and common sense,” Judge Simeon Lake resolved the issue by allowing each party to sit at the table closer to the jury when presenting their respective cases.[67] Custom and practice alone should not be the sole basis for denying a litigant’s preferred seating in court.

Conventional wisdom tells us that jurors are more likely to reach a favorable verdict for your client if they have reason to like him. By taking the table nearer to jurors, counsel places a client within social distance to jurors, thus making it more likely that jurors will be able to observe the client’s non-verbal cues and relate to them on a more personal level. Of course, when considering seating arrangements at trial, counsel should be aware of the idiosyncrasies of the client. The potential advantage of being closer to the jury may at times be outweighed by a client’s inability to maintain decorum in court. Added distance from jurors in those cases may help reduce unwanted scrutiny.

Ask the Audience

The audience is the best judge of anything. They cannot be lied to. Truth brings them closer. A moment that lags – they’re gonna cough. – Barbara Streisand

Spectators in the gallery can also influence jurors.[68] With few exceptions court proceedings are open to the public. Because jurors are insulated by the court—instructed not to speak to anyone about the evidence as it unfolds—spectators in the gallery can be a barometer by which they gauge their own responses to witness’s testimony and counsels’ arguments. Jurors, especially those with no prior experience with court procedure, may expect the trial process to mirror their favorite legal-drama. A full gallery of spectators tends to meet those expectations, infusing the courtroom with energy and causing jurors to pay more attention. Conversely, an empty gallery may leave jurors feeling abandoned, making it more likely they will simply tune out. However, the presence of spectators also increases the potential for jurors to be distracted and unduly influenced. In certain circumstances, these distractions may be grounds for objection when there is an argument that trial spectators’ influence on jurors is prejudicial.

In Holbrook v. Flynn, a leading case on the issue, the Court considered a defendant’s challenge to the presence of four uniformed and armed state police troopers seated in the gallery directly behind the defendant.[69] The Court disagreed that the troopers’ presence created an inference of guilt and was inherently prejudicial, holding that the proper question when addressing challenges to courtroom arrangements is whether “an unacceptable risk is presented of impermissible factors coming into play.”[70] The presence of spectators at trial wearing buttons in support of crime victims has been contested on similar grounds.[71] In Norris v. Risley, the defendant, who had been charged with kidnapping and rape, successfully argued that the presence of female spectators wearing buttons with the words “Women Against Rape” was “‘so inherently prejudicial as to pose an unacceptable threat’ to the [defendant’s] right to a fair trial.”[72] Here, the court concluded the buttons “tainted [the defendant’s] right to a fair trial both by eroding the presumption of innocence and by allowing extraneous, prejudicial considerations to permeate the proceedings without subjecting them to the safeguards of confrontation and cross-examination.”[73]

To establish, however, that visible messages or symbols worn by trial spectators present an unacceptable risk of prejudice is a high burden. In Pachl v. Zenon, the Oregon Appeals Court held that buttons worn by spectators with the inscriptions “C.V.U.” and “Crime Victims United” were not inherently prejudicial.[74] Unlike the buttons in Norris v. Risley, which “proclaimed public outcry” for a conviction in that particular case, the buttons in Pachl v. Zenon did not create an unavoidable effect on jurors that would cause them to “consider factors other than the evidence and law of the case.”[75]

Outward displays of bias by spectators are clear targets for an objection, but counsel should monitor less obvious non-verbal communication between spectators and jurors as well. One often overlooked example is when a testifying witness returns to the courtroom on days following their appearance on the witness stand. In my experience, jurors’ ability to observe the non-verbal reactions of previously testifying witnesses to subsequent witness testimony or legal argument might have the effect of the witnesses testifying a second time. Yet, this additional “testimony” is given without the opportunity for cross-examination. Counsel should take notice of spectators at trial and be prepared to object to conduct or attire that could result in prejudice.


Jurors are sworn to consider only the evidence and exhibits presented on the record. Thus, trial counsel’s first priority is mastery of the facts and law at issue in the case. Yet, the volume and influence of non-verbal information being communicated both inside and outside the courtroom have an undeniable effect on how jurors process and interpret this evidence. By understanding how so-called offstage information is expressed and understood, counsel can increase his own effectiveness and can mitigate the impact of non-verbal cues that could have a negative impact on jurors.

Counsel should consider those elements that are within her direct control. She should dress in a manner that conveys confidence and increases rapport with jurors. When addressing the jury, she should step out from behind the podium or counsel table if allowed, make eye contact and adopt a conversational tone. Counsel should also determine whether it is advantageous to sit closer to the jury. Further, it is also important to understand that many jurors expect that the trial will provide some dramatic moments. Well-placed bits of stagecraft or a timely pause can be effective ways to draw jurors in and meet their expectations.

Equally important, counsel must help clients to make a favorable impression on the jury. Clients should avoid or minimize behaviors that may be construed negatively: eye-rolling, nodding along with a witness’s testimony, smiling or smirking all convey messages to an observant juror. Clients should also avoid frequent asides with counsel and instead write down questions and concerns—taking notes is a visual cue that conveys interest and involvement. Most importantly, be mindful that trial is both physically and emotionally exhausting. Clients may be tempted try to reduce the stress of trial by multi-tasking or simply tuning out. However, a client who appears detached or mentally checked out sends the wrong message to jurors. Clients should make every effort to remain present and in the moment.

Finally, be mindful of others in the courtroom and their potential influence on jurors. Subtle though unintentional cues from the court and the presence of spectators in the gallery can have a profound effect on how jurors interpret evidence and judge the credibility of witnesses. When an offstage source of non-verbal information could result in prejudice, timely objection may curtail its effect on jurors and will at a minimum preserve the objection on the record. Effective trial advocacy requires more than a mastery of the fact and law. By understanding how jurors receive information through non-verbal means, counsel can present a more persuasive case and reduce factors that may negatively impact jurors.


[1] See e.g., UCJI No. 10.01.

[2] Laurie L. Levenson, Courtroom Demeanor: The Theater of the Courtroom, 92 Minn. L. Rev. 573, 574 (2008).

[3] See UCJI No. 10.03.

[4] Tom Capps is a trial consultant based out of Woodburn, Oregon.

[5] See Levenson, supra note 2, at 575, n. 11.

[6] Elizabeth A. LeVan, Nonverbal Communication in the Courtroom: Attorney Beware, 8 Law & Psychol. Rev. 83, 83–84 (1984).

[7] Id. at 94–95.

[8] See Bryan Edelman, The Impact of Graphic Injury Photographs on Liability Verdicts and Non-Economic Damage Awards, The Jury Expert: The Art and Science of Litigation Advocacy, Sept. 2009, at 1, 2.

[9] Id. at 3

[10] Id.

[11] Id.

[12] Mary R. Rose, etal., Goffman on the Jury: Real Jurors’ Attention to the “Offstage” of Trials, 34 Law & Hum. Behav. 310, 310 (2010).

[13] Id. at 311.

[14] Id.

[15] See Levenson, supra note 2, at 582.

[16] See LeVan, supra note 6, at 92–94.

[17] See Levenson, supra note 2, at 583.

[18] Rose, supra note 12.

[19] Id. at 318–19.

[20] Id. at 322.

[21] Id. at 318.

[22] Id. at 321–22.

[23] Id. at 322.

[24] Id.

[25]See Andrea M. Halverson, etal., Reducing the Biasing Effects of Judge’s Nonverbal Behavior with Simplified Jury Instructions, 82 J. Applied Psychol. 590 (1997).

[26] LeVan, supra note 6, at 84.

[27] Id.

[28] See Halverson, supra note 25, at 597. The researchers analyzed the two sets of instructions used in their study through computation of a number of readability indexes. These included simple comparisons of words per sentence and the use of passive voice as well as how the instructions scored on the Flesch Reading Ease and Flesch-Kincaid Grade Level tests.

[29] 295 Or. 640 (1983).

[30] Id. at 659.

[31] ORCP 59E.

[32] See Fed. Rules of Civ. Proc. 51; Fed. Rules of Crim. Proc. 30.

[33] See JR 1-101(A); also see State v. Garza, 125 Or. App. 385, 388 (1993).

[34] Garza, 125 Or. App. at 388.

[35] 290 Ala. 339, 342 (1973).

[36] See, e.g., Allen, 290 Ala. at 343.

[37] Garza, 125 Or. at 389.

[38] Kelly Zusman & the Hon. Anna J. Brown, Coture in the Courtroom, Oregon State Bar Bulletin, Aug./Sept. 2013, at 70.

[39] See, e.g., UTCR 3.010(1) (requiring court attendees to dress “so as not to detract from the dignity of court”)

[40] Levenson, supra note 2, at 593.

[41] Id. at n. 105.

[42] Id. at 594, n. 111 (citing Hazel Thornton, Hung Jury: The Diary of a Menendez Juror 111–12 (1995)).

[43] Thornton, supra note 42, at 73–74.

[44] See Sarah Merry, “Eye See You”: How Criminal Defendants Have Utilized the Nerd Defense to Influence Jurors’ Perceptions, 21 J.L. & Pol’y 725 (2013).

[45] Id. at 731 (citing an estimate by the Vision Council that, as of the year 2011, approximately sixteen million Americans wore nonprescriptive eyeglasses solely for the purpose of altering their appearance).

[46] Id. at 733–739 (citing a 2008 study conducted by psychologist Michael J. Brown in which mock jurors found that defendants accused of a violent crime who were depicted wearing glasses appeared less physically threatening than those without glasses and that the mock jurors returned fewer guilty verdicts for those defendants who were depicted wearing glasses).

[47] Debra Cassens Weiss, Jurors less Likely to Convict Defendants Wearing Glasses, Say Lawyers and 2008 Study, A.B.A. J. (Feb. 14, 2011) (quoting attorney Harvey Slovis: “I’ve tried cases where there’s been a tremendous amount of evidence, but my client wore glasses, dressed well and got acquitted”).

[48] See Merry, supra note 44, at 753.

[49] Rahiel Tesfamariam, Lessons from the South Capitol Street Massacre, Washington Post, May 4, 2012,

[50] Merry, supra note 44, at 756.

[51] Id. at 756–57.

[52] Id. at 757.

[53] ORPC 8.4(a)(3).

[54] See Merry, supra note 44, at 761–62.

[55] Deck v. Missouri, 544 U.S. 622, 630 (2005).

[56] Id. at 624.

[57] Estelle v. Williams, 425 U.S. 501, 513, n. 10 (1976).

[58] Id. at 508.

[59] Id. at 512–13.

[60] See Steven Shepard, Should the Criminal Defendant Be Assigned a Seat in Court? 115 Yale L.J. 2203 (2006).

[61] Id. at 2208, n. 30 (citing Edward T. Hall, The Hidden Dimension, 108–22 (1966)).

[62] Id. at 2208–09.

[63] Jeffrey S. Wolfe, The Effect of Location in Courtroom on Jury Perception of Lawyer Performance, 21 Pepp. L. Rev. 731, 769–71 (1994).

[64] See, e.g., Mahon v. Prunty, No. 96-55411, at *2 (9th Cir. Feb. 6, 1997) (unpublished decision) (noting that the trial court did not abuse its discretion by seating the defendant at the table closer to the jury).

[65] See Shepard, supra note 60, at 2204–05, n. 10.

[66] Id. at 2204.

[67] Id. Interestingly, when it came time to present the defense case, Lay and his counsel elected to stay at the far table.

[68] See Thornton, supra note 42, at 47.

[69] Holbrook v. Flynn, 475 U.S. 560, 562–63 (1986).

[70] Id. at 570.

[71] See, e.g., Carey v. Mulsadin, 549 U.S. 70 (2006).

[72] 918 F.2d 828, 830 (9th Cir. 1990) (quoting Holbrook, 475 U.S. 560 at 572).

[73] Id. at 834.

[74] 145 Or. App. 350, 360, n.1 (1996) (en banc).

[75] Id.

Presenting and Challenging Expert Testimony: Winning the Battle and the War

from Oregon State Bar Litigation Journal, published by Janet Lee Hoffman and Sara F. Werboff, Fall 2012

Click to download “Presenting and Challenging Expert Testimony: Winning the Battle and the War”

Trials are at times won or lost based on experts and the lawyer’s ability to make the most of the rules governing the admissibility of expert testimony. This article provides tips to ensure that your expert’s opinion reaches the jury, or conversely, that your opponent’s expert opinion does not.

There is no question that an expert can provide valuable—even case-ending—testimony. For example, the expert’s well-reasoned opinion can lend credibility to counsel’s arguments made to the jury by narrating and reinforcing the major themes of your case. Moreover, through the expert, counsel can often introduce helpful evidence that is otherwise inadmissible. Importantly, the expert can tie together counsel’s theories into a final opinion that proves the ultimate issue of the case.

A good expert is a competent narrator who helps to advance the theme of your case. In a federal criminal case I tried, over strenuous objection I called a psychologist who had diagnosed the government’s informant as a pathological liar. In support of my expert’s opinion, the court also permitted me to introduce examples of the informant’s behavior that the expert had relied upon for his diagnosis. With this one expert, I was able to both discredit the government’s main witness and provide a counter-narrative to the one that was presented by the government, namely that my client purportedly confessed an intent to commit the crime in a statement to an alleged co-conspirator, the government’s informant and the person who prompted its investigation. Through expert testimony, we developed a forceful narrative centering on the theme that the government had unwittingly based its entire investigation on the statements of a pathological liar. We succeeded in showing the jurors that the government had been seriously misled by its own informant.

The range of subject matter of relevant permissible expert testimony is only limited by the trial lawyer’s creativity. Experts can take the lawyer and jurors into areas they previously knew little about. Experts can recreate for the jury experiences about which they could otherwise only guess—experiences that are far removed from the juror’s own life experience. In another case I tried, the court allowed me to call a retired Rand Corporation research expert to testify as to the traumatic impact that specific events of the Vietnam War had on Vietnamese immigrants in general and on my clients in particular.

Recreation of events occurs regularly in court rooms through the use of scientific techniques, experts can vividly recreate for jurors accident scenes or other relevant conditions. The only requirement is that the demonstration or experiment must be sufficiently similar so that it fairly replicates the conditions it purports to represent.[1] In another case I tried, my client had a profound hearing loss. The government had a tape-recorded telephone conversation of my client purportedly expressing joy that the alleged crime had been carried out. Recognizing that my client might not be believed if he simply testified that he did not comprehend what was said during the conversation, and knowing the potential numbing effect of technical evidence, I used an expert audiologist to highlight my client’s hearing deficits.

The audiologist demonstrated what my client actually heard during the critical tape-recorded phone call. He accomplished this by removing certain sounds from the government’s recording to replicate the limitations of my client’s hearing, thereby illustrating precisely what my client could and could not hear during the telephone conversation. By recreating the conversation as my client experienced it, and by allowing the jurors to hear the conversation just as my client heard it, we had evidence that engaged the jury and made a far greater impact. The jurors became experts on my client’s profound hearing loss and accepted our theory of the case. Consequently, the jury acquitted my client.

Because expert testimony is so significant, counsel must ensure that the testimony will withstand an evidentiary challenge. For this reason, it is worthwhile to remind ourselves of some basic legal principles governing expert evidence. Counsel should also be familiar with the tools available to ensure that your expert’s testimony is admitted and conversely must understand how to use the Rules of Evidence to exclude the opponent’s expert.

The Rules of Evidence define the permissible scope of expert testimony. We are permitted to call experts when there are issues in a case that are beyond the common knowledge of the jury. Expert witnesses therefore must have scientific, technical, or other specialized knowledge through advanced education or significant training. They can testify to ultimate issues in a case and render opinions without personal knowledge of the events. For example, an expert may be called to provide an opinion about the cause of injury or illness, an essential element of the claim. In this regard the expert is uniquely qualified to testify to that ultimate issue.[2] However, trial counsel still needs (i) to be familiar with the qualifications of each party’s expert, (ii) to understand the record the expert relied on in rendering her opinion, and (iii) to know whether her opinion is based on proper methodologies.

Courts often admit expert testimony over the objections of counsel, leaving the jury to determine the weight that the testimony should be given. Thus, an advocate should think twice about challenging an expert where there is simply a dispute within the relevant community over the expert’s opinion. If the expert’s testimony is likely to be admitted over your objection, you will have probably previewed to opposing counsel and the expert the nature of your cross-examination thereby providing them with an opportunity to shore up their arguments.

This concern, of course, should not prevent you from waging a challenge where the expert’s procedures render the opinion unreliable, or where the opinion itself is without basis. In such cases, the expert’s opinion will not be admitted. For this reason, counsel must be prepared to challenge the expert’s theory or scientific methods. For example, a litigant might try to use a psychologist to explain why a victim changed her story or recalled a memory after many years. You must be ready to challenge these likely unreliable theories or the scientific methodology underlying the evidence through a hearing where the expert is subject to cross-examination or will be challenged through the presentation of competing expert testimony.[3]

Because expert testimony can be so persuasive, courts have a duty to disallow unreliable or unduly prejudicial expert evidence. Courts have developed a process to assess the reliability of the expert’s opinion pretrial and determine whether the jury should hear it. Your chance of prevailing at trial may depend on the outcome of these challenges. Therefore, it is important to resolve these issues by motion as soon as possible.

I. Expert Testimony is Generally Admissible if Reliable and Helpful to the Trier of Fact.

“Believe the one who has proved it. Believe an expert.”
— Virgil, Aeneid

Expert testimony generally will be admitted if the expert is qualified and the opinion is reliable. Oregon and federal rules provide a liberal standard for admissibility of expert testimony. If a qualified expert’s “scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue” then the testimony is admissible.[4] Even though the standard is liberal, the rules do not permit all expert testimony. Trial courts perform a crucial “gatekeeper” function. First, the trial court must determine whether an expert possesses the appropriate qualifications through either training or experience, or both. The trial court must then decide whether that opinion will ultimately assist the fact finder.[5]

A. An Expert Must Be Qualified

“An expert is a man who has made all the mistakes that can be made, in a very narrow field.”
—Neils Bohr

An expert must be qualified by knowledge, experience, education, or training to testify about a particular subject-matter. “The witness must have such skill, knowledge or experience in the field or calling in question as to make it appear that his opinion or inference-drawing would probably aid the trier of the facts in his search for the truth.”[6]

Professional degrees are not necessarily required in order for an expert to be qualified to testify about an area where that expert has practical or technical experience. In State v. Rogers, for example, the Oregon Supreme Court determined that the expert, who was a properly qualified psychologist, had focused on neuropsychological issues and therefore was qualified to testify on a neuropsychological matter despite not having a degree in that particular discipline.[7] In State v. Moore, however, the court found an expert unqualified to testify regarding battered spouse syndrome when that expert did not have any degrees in the subject matter. Notably in Moore, the expert witness not only lacked a degree in the subject matter, she also had limited experience as a counselor. Given the inherent complexity of a battered spouse defense, requiring the expert to “evaluate the literature and the various phases of the syndrome and to apply the syndrome to the particular facts of the case[,]” the expert’s lack of training and education rendered her unqualified to testify and the jury did not hear her opinion.[8]

Training or job experience may also qualify a witness as an expert. In State v. Park, a forest service officer qualified to testify that marijuana plants were “clones.” The court found he was qualified because he had over 16 hours of training in differentiating different types of marijuana plants.[9] Importantly, the training or experience must be relevant to the issue. For example, a police officer’s general training is not sufficient to qualify him as an expert in the cause of an accident.[10] An expert’s qualifications depend heavily on the facts of a particular case, thus if the subject-matter of the testimony is an area that requires special training, an expert will not be qualified without that training.[11]

The determination of the expert’s qualifications relates directly to the purpose of Rule 702—assisting the trier of fact—because an expert is only helpful to the jury if he or she is qualified. As the Oregon Supreme Court explained it:

Because of these qualifications he is permitted to express his opinion as a witness so that the jury may have the benefit of his special ability to draw inferences from the facts in evidence. “The expert witness is granted the privilege of expressing to the jury an opinion because his superior training enables him to arrive at a conclusion which is more likely to be sound than that of the average juror.”[12]

Thus, it is very important for advocates to understand the qualifications of their own experts and their opponent’s experts and raise issues of qualification before the expert ever meets the jury.

B. An Expert’s Opinion Must Be Reliable

“For every expert there is an equal and opposite expert; but for every fact there is not necessarily an equal and opposite fact.”
—Thomas Sowell

An expert witness is only helpful to the trier of fact if the expert’s opinion itself is reliable. If an expert is offering a scientific opinion, one that “draws its convincing force from some principle of science, mathematics and the like”[13] the court applies a more rigorous test and analyzes multiple factors that go to the reliability of the expert’s proffered testimony. Challenges to expert witnesses go to two different areas: whether the advocate’s theory that the expert’s testimony supports is valid and whether the methods or protocols used to reach that theory are valid.[14]

For example, in a recent case I handled, I challenged the government’s key expert in a pretrial hearing. I argued that the expert relied on outdated methods and protocols and therefore his results were unreliable. Because I effectively discredited the expert’s conclusions during the pretrial hearing, the government realized that it could not establish a central element of its case and voluntarily dismissed the charges. Testing the reliability of your adversary’s expert can have case-altering effects. Below are the factors to be aware of as you craft your arguments.

  1. Daubert and the Federal Standard

The standards for admissibility of scientific evidence have changed over time. Under federal law, courts were hamstrung by the burdensome Frye test, which only permitted scientific evidence to come in when it was generally accepted in the field.[15] This excluded too much evidence as science and research progressed. Novel but otherwise reliable evidence was not admissible. In Daubert v. Merrill Dow, the United States Supreme Court determined that the Rules of Evidence superseded the Frye test and adopted a “flexible approach” designed to liberalize the introduction of scientific evidence:

Faced with a proffer of expert scientific testimony, then, the trial judge must determine at the outset, * * * whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.[16]

Daubert proposed four principle factors to aid in this analysis: (1) whether the theory or technique can and has been tested; (2) whether the theory or technique can and has been subject to peer review; (3) the known or potential rate of error, and; (4) the degree of acceptance in the relevant scientific community. Although Daubert involved a question of scientific evidence, later in Kumho Tire Co., Ltd. v. Carmichael, the United States Supreme Court held that the trial court’s gatekeeping obligation to determine the reliability of the evidence extended to “technical or other specialized knowledge” as well.[17]

  1. Brown/O’Key and the Oregon Standard

The Oregon Supreme Court also adopted a different multi-factor test for the admissibility of scientific evidence. Under State v. Brown and State v. O’Key, courts must determine the probative value of the scientific evidence or whether the “proposed evidence is based on scientifically valid principles and is pertinent to the issue to which it is directed.”[18] But this test is not “a mechanical checklist of foundational requirements.”[19] The overall touchstone is the reliability of the scientific opinion.

In Brown, a case about polygraph tests, the court set forth seven factors that Oregon trial courts had to consider before ultimately deciding that the polygraph technique was not admissible.[20] Thus, Brown, which predated Daubert v. Merrill Dow, established a separate and distinct multi-factor test for Oregon courts. Those factors are: (1) the technique’s general acceptance in the field; (2) the expert’s qualification and stature; (3) the use that has been made of the technique; (4) the potential rate of error; (5) the existence of specialized literature; (6) the novelty of the invention, and; (7) the extent to which the technique relies on the subjective interpretation of the expert.[21] The court in Brown concluded that “under proper conditions polygraph evidence may possess some probative value and may, in some cases, be helpful to the trier of fact[,]” however, the court determined the evidence was inadmissible based on different considerations than its potential reliability “under proper conditions,” demonstrating that evidence that otherwise meets the scientific hurdle may still be excluded. The court reasoned the introduction of polygraph evidence might lead to undue delay in proceedings, and to confusing battles of the experts. The court also concluded that jurors might overvalue polygraph evidence, and found that polygraph evidence impermissibly comments on the credibility of witnesses.[22]

A few years later, in O’Key, the Oregon Supreme Court incorporated the test set forth by the United States Supreme Court in Daubert v. Merrill Dow. No one factor is dispositive.[23] Unlike the United States Supreme Court’s ruling in Kumho Tire, Oregon courts have not ruled that the Brown/O’Key test applies to “technical or other specialized knowledge” as well as scientific evidence, however, Oregon courts define scientific evidence broadly. For instance, the courts routinely allow testimony on issues of medical causation,[24] psychological syndromes,[25] and drug or alcohol testing.[26] Oregon courts also have recognized that it is often difficult to distinguish between scientific evidence and evidence involving technical or other specialized knowledge because “[m]ost expert testimony rests at least partly on science.”[27]

  1. The Court’s Belief of the Jury’s Perception Categorizes Evidence as “Scientific”

An advocate must be on the lookout for expert opinions that appear to be scientific and will be relied upon by the jury as such. The Oregon Supreme Court concluded that whether proffered expert testimony is scientific, requiring the proponent to establish an appropriate foundation, “depends primarily on whether the trier of fact will perceive the evidence as such.”[28] In that case, State v. Marrington, the state called a psychologist to testify that the victim’s delay in reporting sexual abuse was a common occurrence. The state did not lay any foundation for scientific evidence required under Brown/O’Key. The defendant objected and argued that because this assertion was scientific evidence, the state was required to demonstrate that it was scientifically valid. The court in Marrington explained that trial courts “must determine whether the expert’s assertions ‘possess significantly increased potential to influence the trier of fact as scientific assertions.’”[29] Thus, the court concluded:

An expert * * * who has a background in behavioral sciences and who claims that her knowledge is based on studies, research, and the literature in the field, announces to the factfinder that the basis of her testimony is ‘scientific,’* * * Because that is how the factfinder would understand it, a court has a duty to ensure that such information possesses the necessary indices of scientific validity.[30]

The court reversed the trial court for failing to require that the state demonstrate that the expert’s opinion was scientifically valid.

  1. The Three Step Process

With any challenge to expert testimony, scientific or otherwise, trial courts must engage in a three-step process in determining whether expert evidence is admissible. First, the court determines whether the evidence is relevant under Rule 401.[31] Next, the courts apply Rule 702 to determine whether the expert is qualified and whether the expert’s opinion will assist the fact finder (for scientific evidence, this includes application of the multifactor Brown/O’Key or Daubert tests). Finally, the court will apply the Rule 403 balancing test, and if the expert evidence is more prejudicial than probative, it will be excluded.[32] The 702 factors are relevant to the Rule 403 balancing analysis. In one case, the defendant argued that the state did not lay a proper foundation for the evidence and therefore the probative value was outweighed by the prejudicial effect. The defendant, however, did not challenge the admissibility of evidence under Rule 702. Nonetheless, the Court of Appeals, although recognizing that a Rule 702 argument was not adequately raised, nonetheless agreed that the state did not lay a proper foundation for the evidence and applied the Brown/O’Key factors to determine that the urinalysis test results were not scientifically valid and therefore were not probative. Because the test results appeared scientific, it was unduly prejudicial to admit them.[33]

Although both the state and federal Rule 702 are rules of inclusion for expert testimony, the importance of the trial court’s gatekeeping function cannot be overemphasized. Experts may supplant the jury in its role as finder of fact. As one commentator notes, expert testimony poses a “paradox”:

when experts give an opinion they generally tell the trier of fact what meaning it should give to other evidence. But determining the meaning of the evidence is the central function of the trier of fact. If the trier of fact is unable or disinclined to question the expert’s opinion, it surrenders its central function to an expert whose testimony may be unreliable.[34]

Or, as the Oregon Supreme Court aptly stated in O’Key: “Evidence perceived by lay jurors to be scientific in nature possesses an unusually high degree of persuasive power. The function of the court is to ensure that the persuasive appeal is legitimate. The value of proffered expert scientific testimony critically depends on the scientific validity of the general propositions utilized by the expert.”[35]

II. Balancing the Trial Court’s Gatekeeper Function with the Jury’s Role

“If an expert says it can’t be done, get another expert.”
– David Ben-Gurion

It is, of course, more desirable for a questionable expert espousing questionable science to be excluded from the jury entirely—and that argument might be meritorious on appeal—but the so-called “battle of the experts” is at times inevitable. Ultimately, this is because the policy of Rule 702, and the Rules of Evidence more generally, favor the admission of relevant evidence and the bar for relevance is low.[36] Thus, some courts seem willing to admit doubtful evidence and let the jury sort it out, repeating the now-familiar refrain that challenges to the reliability of an expert’s opinion more often go to “weight, not admissibility.”[37] Even the uniform jury instruction states: “You are not bound by the opinion. Give it the weight, if any, to which you consider it is entitled.”[38] But this policy favoring admissibility conflicts to some extent with the court’s “gatekeeper” function. Trial courts have a duty to ensure that expert testimony is reliable. This is because expert testimony, as discussed above, has several features that could interfere with the jury’s role. Experts can testify to ultimate conclusions under Rule 704. Experts necessarily testify to issues that are beyond everyday understanding. And experts, owing to their specialized training and experience, appear credible to a jury. Thus, the rules must strike a delicate balance between the role of the court and the role of the jury to ensure that the jury’s role is not supplanted by the expert.

A. Advocates Present the Basis of an Expert’s Opinion, and the Jury Assesses the Weight of that Opinion

“The public do not know enough to be experts but know enough to decide between them.”
– Samuel Butler

If the court admits the proffered expert evidence, the jury must then determine for itself what weight to give the opinion. Jurors then perform a similar task to the trial court in a Rule 104 hearing. For example, the criminal model jury instruction provides:

Even though expert witnesses may testify about their opinions, you are not required to accept those opinions. To determine the value, if any, you will give to an expert’s opinion, you should consider such things as the expert’s qualifications, the expert’s opportunity and ability to form the opinion, the expert’s believability, and how the expert reached the opinion or conclusion.[39]

Thus, if the evidence is admitted, it is incumbent on counsel to demonstrate for the jury the flaws of the opponent’s expert’s opinion. As the Oregon Supreme Court has explained, “the witness who testifies to an expert opinion is subject to cross-examination concerning how she arrived at that opinion, and the cross-examiner is given ‘great latitude’ in eliciting testimony to vitiate the opinion.”[40] Necessarily, trial courts provide advocates leeway to essentially re-litigate issues that arose in an unsuccessful challenge under Rule 104, or in those cases where there was no opportunity for a pretrial hearing, to litigate those issues for the first time. To be sure, in a Rule 104 hearing, the trial court and counsel are not constrained by the other rules of evidence.[41] But if counsel is forced to discredit the opponent’s expert during trial, counsel must do so within the bounds of the rules of evidence.

Yet even when the Rules of Evidence apply to the particular proceeding, counsel can introduce evidence underlying the expert’s opinion. For example, Rule 705 provides that the expert may be required to disclose the underlying facts or data they relied upon during cross-examination. Under Rule 706, an expert may even be impeached with statements from a learned treatise.

Generally, if the opposing expert’s conclusions are flawed, you have an opportunity to challenge that expert for relying on an incomplete factual record in rendering the opinion. You can force the opposing expert, on cross-examination, to disclose the bases of her opinion, and, if it is based on inaccurate or incomplete information, then the jury should discount her opinion. Indeed, you have an opportunity to expose the weaknesses in the expert’s opinions, including poor quality control, lack of documentation, failure to consider relevant information or facts, and opinions that have been soundly criticized in the scientific literature. Whether to introduce the underlying facts or data that informs the expert’s opinion is a strategic choice. Conversely, it is beneficial for counsel to introduce the evidence that forms the basis of his own expert’s opinion because through the expert, counsel can often introduce favorable evidence that is otherwise inadmissible.

For example, defense counsel used cross-examination to great effect in Blake v. Cell Tech International, Inc,[42] by drawing out the fact that the expert had used a new and untested method to determine whether there were toxins in the decedent’s liver, and had also conducted three different rounds of that testing that contained false positives. Both the trial court and the Court of Appeals concluded that the opinion was not reliable, and therefore it was inadmissible.[43]

B. Expert Testimony Is Inadmissible When it Intrudes on the Jury’s Function to Determine the Credibility of Witnesses

“A fundamental premise of our criminal trial system is that ‘the jury is the lie detector.’”
United States v. Scheffer[44]

Advocates also should be mindful that on the basis of Rule 403, courts have determined that there is some expert testimony that so thoroughly supplants the role of the jury that it is inadmissible. Even if the science behind the opinion is determined to be reliable, and the expert’s opinion is sensible, as a matter of judicial doctrine, that evidence cannot come in. For example, in State v. Southard, the Oregon Supreme Court decided whether a diagnosis of sexual abuse was admissible.[45] In so deciding, the court followed the framework set forth in Brown/O’Key. First, it determined the evidence was relevant to the issue of whether the victim had been sexually abused. Significantly, it next decided that the evidence was scientifically valid and reliable under Rule 702. The court then looked at the methodology that the psychologist used in formulating the diagnosis of child sex abuse. Noting that the psychologist used standard, conventional, and accepted protocols, the court determined the proffered evidence has sufficient indicia of scientific validity. However, the court ultimately determined that, because the diagnosis did not tell the jury anything that it could not determine on its own—like whether the alleged sexual abuse occurred—it was of limited probative value, while, at the same time, it was very prejudicial. Therefore, the evidence was inadmissible.

For similar reasons, courts also disapprove of evidence that improperly comments on a witness’s credibility. That is why no witness, expert or otherwise, may give an opinion that another witness is or is not telling the truth in their trial testimony.[46] In Milbradt, a psychologist called by the state testified that because of the victim’s severe mental retardation, she lacked the capacity to fabricate a lie. The Oregon Supreme Court unequivocally held that “no psychotherapist may render an opinion on whether a witness is credible in any trial conducted in this state. The assessment of credibility is for the trier of fact and not for psychotherapists.”[47]

Likewise, as discussed above, the court concluded that polygraph evidence is inadmissible for any purpose, even when parties stipulate to its admissibility.[48] Even though the court earlier had recognized that “under proper conditions polygraph evidence may possess some probative value and may, in some cases, be helpful to the trier of fact,” any probative value was outweighed by the prejudicial effect.[49] Polygraph evidence, even if properly done, has a “potential for misuse and over-valuation * * * by the jury” that is, in fact, exacerbated by the parties’ stipulation to its introduction and reliability—Oregon courts “will not permit this gamble.”[50]

However, evidence that relates to the capacity of a witness to testify is generally relevant.[51] The cases cited above present different theories, and illustrate how important it is for counsel to hone the theory of relevance. In my case, where expert testimony regarding the witness’s diagnosis of being a pathological liar was admitted, the witness had been diagnosed before the FBI chose to rely on him as an informant. The expert’s testimony allowed me to challenge the government’s reliance on a pathological liar to build its case and to interpret the facts. It was also admissible because it pertained to a mental illness that went directly to the witness’s ability to perceive, recall, or recount. The psychologist rendered no opinion regarding the informant’s truthfulness in court.

C. Experts Are Necessary to Prove Certain Facts

“Who’s to say who’s an expert?”
– Paul Newman

It is critical to know when an expert opinion is required and how to articulate the specific theory of admissibility. It is equally important to know how to mount challenges based on an adversary’s failure to use an expert when one is required. Thus, it is important for both the proponent and the opponent of an expert witness to understand how that witness will be put to use, in case you are able to challenge your opponent’s failure to use an expert when one is necessary. Rule 702 is silent about when a party is required to put forth expert testimony, however, case law has held that expert testimony is required to prove certain facts. For example, expert testimony is often required to prove causation. “When the element of causation involves a complex medical question, as a matter of law, no rational juror can find that a plaintiff has established causation unless the plaintiff has presented expert testimony that there is a reasonable medical probability that the alleged negligence caused the plaintiff’s injuries.”[52]

In professional malpractice cases, expert testimony is often required to establish whether the professional breached the profession’s duty of care. In one medical malpractice case, the plaintiff did not call an expert and argued that the doctor should be held liable on a res ipsa loquitor theory. The court rejected that argument, stating that this was “precisely the type of case that the Supreme Court has said requires expert testimony.”[53] Because there was no evidence presented that the doctor failed to perform according to the reasonable standards of the community without expert testimony, there was no way to establish that the doctor had been negligent.

In addition to the opinions required by law and “big picture” conclusions—such as causation—that are the purview of expert witnesses, the rules of evidence require expert testimony to prove certain facts because lay witnesses are not competent to testify to matters requiring specialized knowledge. Lay opinion testimony is limited by Rule 701, which is essentially identical in both Oregon and federal courts. That rule provides:

If the witness is not testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to those opinions or inferences which are:

(1) rationally based on the perception of the witness; and

(2) helpful to a clear understanding of testimony of the witness or the determination of a fact in issue.

This rule is interpreted broadly in the sense that lay witnesses often express themselves through opinion based on perception as opposed to hard fact, for example when the witness testifies that, “the weather was cold,” “he seemed angry,” or “he was driving fast.”[54]

Many opinions, of course, are outside of the competence of a lay witness. For example, in State v. Hite, the defendant tried to testify that his ability to communicate was impaired by the medication he was taking. The court did not permit the testimony because the defendant was not competent to testify about medical causation.[55] In another case, a post-conviction matter, the court held that expert testimony was required to explain the nature of the injuries sustained during an assault so the trier of fact had the information needed to decide whether the injury was significant.[56]

III. Challenging your Opponent’s Expert and Protecting your Own

“Make three correct guesses consecutively and you will establish a reputation as an expert.”
– Laurence J. Peter

What is the threshold of reliability for the court to allow the evidence to be presented to the jury? There are two major tacks that an advocate can take to mount a challenge to an expert witness. The advocate can challenge the theory of admissibility, or the advocate can challenge the methodology or protocols used in reaching the expert opinion.

Following a challenge to the theory of admissibility, such as a claim that the theory is bogus or junk science, courts must determine whether the expert’s opinion is reliable. A theory or technique is not unreliable just because it is novel. For example, in Kennedy v. Eden Advanced Pest Technologies,[57] the defendant brought a pretrial challenge to the plaintiff’s treating physician, who was also testifying as an expert in chemical sensitivity.[58] The expert had diagnosed the plaintiff as suffering from “multiple chemical sensitivity.” The defendant challenged that opinion as junk science and introduced testimony from its own expert that there was no such condition as “multiple chemical sensitivity” and then suggested that the plaintiff’s expert’s rate of error was 100%. The trial court excluded the plaintiff’s expert but the Court of Appeals reversed. At most, the court concluded, there was a good faith disagreement in the scientific community and that both sides should be able to present evidence to the jury. In a case involving silicone breast implants, Jennings v. Baxter Healthcare Corp., the defendant challenged the plaintiff’s expert at trial and the trial court excluded the testimony. In his offer of proof, the plaintiff’s expert testified regarding a potential syndrome caused by the leaking implants. In arriving at his conclusions, the expert had followed established clinical diagnostic techniques. The Supreme Court determined that the evidence should have been admitted because, even though the theory was novel, the protocols followed were not.[59]

Even though novelty alone is insufficient to exclude scientific evidence, where there is a lack of traditional corroboration for reliability the court will exclude the evidence. For example, in Blake v. Cell Tech Int’l Inc.,[60] the plaintiff’s expert testified in a pretrial hearing that the decedent died from a build-up of microcystin toxins in his liver.[61] To reach that conclusion, the expert had employed a novel technique that had never before been used to test a human liver. After accepting the premise that novelty alone is not sufficient to exclude scientific testimony, the court concluded that the technique was not reliable for a number of reasons. First, the technique that the expert used was not accepted in the field to test for microcystins in a human liver. There was no known error rate nor was there any peer-reviewed publication regarding the accuracy of such procedures. Moreover, the tests conducted by the expert could not be easily duplicated or subjected to confirmatory tests through more established procedures. Finally, the probative significance was central to the plaintiff’s claim because it would establish causation, and therefore, if admitted, the expert’s testimony would be highly persuasive.[62] The court concluded that the trial court had properly exercised its gatekeeper function.

The appellate and trial courts are more inclined to admit experts and let the jury consider the weight of their testimony rather than exclude experts where the theory, although novel, is still supported by solid scientific techniques and accepted procedures. This preference is clear from looking at the Brown/O’Key and Daubert factors. In those cases, the courts were clear that the focus of the multifactor inquiry was “solely on principles and methodology, not on the conclusions that they generate.”[63] Although, in Marcum, the Oregon Supreme Court expanded the application of the Brown/O’Key test to reach the reliability of an expert’s ultimate conclusions,[64] the fact remains that most of the factors pertain to the reliability of methods used to reach the conclusion.

For example, courts must focus on the techniques used and their acceptance in the field, the rate of error, and the extent to which the technique relies on subjective interpretation. Further, the existence of standards governing the use of the technique or safeguards in employing it is relevant and persuasive and weigh towards admissibility provided those standards and safeguards were applied in that particular case. If protocols and techniques are not followed, then the conclusion is not reliable and the expert’s opinion should be excluded.[65]

A series of cases involving the drug recognition expert (DRE) protocol, which is designed to determine whether a person was under the influence of a controlled substance, demonstrates how a scientifically-valid theory can be undermined by insufficient adherence to proper methods and protocols. The Court of Appeals recognized the scientific validity of the 12-step DRE protocol in State v. Sampson following the test set forth in Brown/O’Key.[66] Thus, following Sampson, DRE protocol results are admissible in future cases. But, in subsequent cases, the courts have excluded DRE protocol results when the opponent of the evidence established that the results were unreliable because the protocol was improperly administered.[67] In State v. Aman, a qualified officer administered 11 of the 12 steps in the DRE protocol, but failed to complete the confirmatory urinalysis test. The court determined that because the confirmatory urinalysis “vitiate[d] the problem of the DRE protocol’s subjectivity” it was essential to the 12-step protocol’s scientific validity under Brown/O’Key.[68] Similarly, the court found that in cases where the DRE protocol administrator was unqualified, like in State v. McFarland,[69] the opinion is unreliable and inadmissible.

IV. Conclusion

“An investment in knowledge pays the best interest.”
– Benjamin Franklin

Understanding the validity of the scientific evidence of your opponent is not merely an academic exercise. As discussed above, challenges to experts may change the entire landscape of a case. Take the example I mentioned earlier, where the government, quite unexpectedly dismissed an environmental case I was defending during the Daubert hearing process in federal district court.

When I litigated the Daubert hearing in my environmental case, our expert testified that the tests the government witness performed and the conclusions he drew were outdated. Further, our expert explained that other tests and equipment were available, and these modern tests showed that the nature of the substance in dispute was very different than what the government experts claimed. In short, our expert explained that the government’s tests were no longer scientifically valid and were, in fact, unreliable. Before the court had an opportunity to decide whether the government’s evidence would be admitted with the general instructions regarding the jury’s duty to “weigh the evidence,” the government dismissed the case because flaws in its expert’s opinion made it very difficult to prove other issues in the case.

There are several lessons learned from this and other experiences. First, even though they come with a host of issues for advocates, expert witnesses are a critical part of modern litigation. Litigants rely on experts to educate jurors on complex topics and to explain complicated information. Increasingly, sophisticated jurors will expect counsel to use modern science and technology to prove their points. Further, new science is constantly replacing older ideas. Savvy jurors will expect DNA evidence, where once blood analysis was sufficiently convincing. It is important to remember that at one point DNA evidence was frequently challenged but now is accepted without debate.[70] But at the same time, new technology is often unproven and subject to challenge by opponents. For example, litigators are now presenting powerful demonstrative evidence through computer-generated reenactments. But as the use of this technology becomes more common, so too will be the challenges to computer-generated demonstrations.[71]

There are countless examples of new science becoming standard practice, but likewise, there are examples of once valid protocols that are supplanted by more accurate testing methods. Thus, the methods, protocols, accuracy, and underlying assumptions of an expert’s testimony will always present opportunities for challenges where even basic expert evidence is improperly relied upon.


[1] See e.g., Dyer v. R.E. Christiansen Trucking, Inc., 318 Or 391, 400 (1994) (trial court did not err in excluding videotape demonstration of “trailer sweep” when it was not sufficiently similar to facts of case to be relevant); Myers v. Cessna Aircraft Corp., 275 Or 501, 509-10 (1976) (admitting expert testimony and lab results where experiment conditions were the same as the conditions under which the evidence indicates the plane was operating).

[2] See Madrid v. Robinson, 324 Or 561 (1997) (accident reconstruction expert permitted to testify to what “caused” the accident). See generally Rule 704 (“Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.”)

[3] In federal court and in state criminal proceedings, challenges to experts often occur pretrial. In both state and federal court, the parties are provided expert discovery pretrial, enabling us to make pretrial challenges to this evidence. I am a criminal law practitioner and therefore my experience is with pretrial hearings and this article does not discuss the nuances of setting up challenges when you learn of an expert for the first time during the trial itself. See Stevens v. Czerniak, 336 Or 392, 404-05 (2004) (Oregon Rules of Civil Procedure do not permit court to require pretrial discovery of experts).

According to my experienced colleagues who try civil cases in state court, litigants are required to make their challenges to expert witnesses often during trial because of the lack of pretrial discovery of experts. Thus, it is even more important to know the law and be familiar with the science. The downfall of litigating these objections during trial is the risk that the case may end up gutted of its experts and unable to proceed. As discussed below, in some civil cases, the parties challenge an expert pretrial, but in others, these decisive issues are litigated during trial.

[4] Rule 702. The federal rule is similar, and provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

[5] Rule 702.

[6] Sandow v. Weyerhaeuser Co., 252 Or 377, 380 (1969).

[7] State v. Rogers, 330 Or 282, 317 (2000).

[8] State v. Moore, 72 Or App 454, 459, rev den 299 Or 154 (1985).

[9] State v. Park, 140 Or App 507, 514 (1995), rev den 323 Or 690 (1996).

[10] See Davis v. County of Clackamas, 205 Or App 387, 395, rev den 341 Or 244 (2006) (officer could not give opinion as an expert because he did not apply specialized knowledge as an accident reconstructionist).

[11] See State v. McFarland, 221 Or App 567, 577 (2007) (trainee in Drug Recognition Expert (DRE) protocol was not qualified to testify as an expert because not adequately trained).

[12] State By & Through State Highway Comm’n v. Arnold, 218 Or 43, 64-65, reh’g denied and opinion modified, 218 Or 43 (1959).

[13] State v. Brown, 297 Or 404, 407 (1984).

[14] State v. O’Key, 321 Or 285, 292-93 (1995).

[15] United States v. Frye, 293 F 1012 (DC Cir 1923).

[16] Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 US 579, 592-93 (1993).

[17] 526 US 137, 141-42 (1999).

[18] O’Key, 321 Or at 303.

[19] Id. at 300.

[20] Brown, 297 Or at 445.

[21] Id. at 422-37.

[22] Id. at 440-41.

[23] The factors enunciated in Brown/O’Key are not the only relevant considerations. In a footnote in Brown, and recognized again by the Supreme Court in Marcum v. Adventist Health System, 345 Or 237, 244 n 7 (2008), are 11 more factors: (1) the potential rate of error in using the technique; (2) the existence and maintenance of standards governing its use; (3) presence of safeguards in the characteristics of the technique; (4) analogy to other scientific techniques whose results are admissible; (5) the extent to which the technique has been accepted by scientists in the field involved; (6) the nature and breadth of the inference adduced; (7) the clarity and simplicity with which the technique can be described and its results explained; (8) the extent to which the basic data are verifiable by the court and the jury; (9) the availability of other experts to test and evaluate the technique; (10) the probative significance of the evidence in the circumstances of the case; and (11) the care with which the technique was employed in the case.

[24] Jennings v. Baxter Healthcare Corporation, 331 Or 285, 304 (2000).

[25] State v. Milbradt, 305 Or 621, 631 (1988).

[26] State v. Sampson, 167 Or App 489 (2000).

[27] O’Key, 321 Or at 291 (quoting Christopher B. Mueller and Laird C. Kirpatrick, Modern Evidence § 7.8, 990 (1995).

[28] State v. Marrington, 335 Or 555, 561 (2003).

[29] Id. at 562 (quoting O’Key, 321 Or at 292).

[30] Id. at 563-64.

[31] Id. at 297-98.

[32] Id.

[33] State v. Jayne, 173 Or App 533, 541-43 (2001).

[34] Wright and Gold, Federal Practice and Procedure § 6262 at 179.

[35] O’Key, 321 Or at 291.

[36] Rule 401 provides that evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”

[37] See e.g., Jennings, 331 Or at 309 (expert’s inability to explain mechanism causing plaintiff’s injury went to weight of the evidence, not admissibility); Barrett v. Coast Range Plywood, 294 Or 926, 931 (1983) (that an expert witness did not have a specialized degree in the subject-matter went to the weight accorded to testimony, not admissibility); see also, Baughman v. Pina, 200 Or App 15, 20 (2005) (expert’s failure to explain basis of opinion went to weight of testimony but not basis for directed verdict). The effect is the same in federal court. See generally, Wright & Gold, Federal Practice and Procedure § 6264 at 224 (“courts usually conclude that defects in the underlying logic or basis of expert testimony are jury questions that go to weight, not admissibility”).

[38] Oregon UCJI No 10.06.

[39]Oregon UCJI No 1034. The civil jury instruction is similar. Oregon UCJI No 10.06 provides that “An expert witness may give an opinion on any matter in which that witness has special knowledge, skill, experience, training, or education. You should consider the qualifications and credibility of the expert witness and the reasons given for the opinion. You are not bound by the opinion. Give it the weight, if any, to which you consider it is entitled.”

The Ninth Circuit Criminal jury instruction, and its virtually identical civil counterpart, provides: “You have heard testimony from persons who, because of education or experience, were permitted to state opinions and the reasons for their opinions. Such opinion testimony should be judged like any other testimony. You may accept it or reject it, and give it as much weight as you think it deserves, considering the witness’s education and experience, the reasons given for the opinion, and all the other evidence in the case.”

[40] State v. Lyons, 324 Or 256, 278-79 (1996) (quoting Bales v. SAIF, 294 Or 224, 235 n 4 (1982)).

[42] 228 Or App 388 (2009).

[43] Id. at 401-02.

[44] 523 US 303, 313 (1998)

[45] 347 Or 127 (2009).

[46] State v. Middleton, 294 Or 427, 438 (1983), Milbradt, 305 Or at 629-30.

[47] 305 Or at 629-30 (emphasis in original).

[48] State v. Lyon, 304 Or 221, 233-34 (1987).

[49] Id. at 230-31 (quoting Brown, 297 Or at 438).

[50] Id. at 232-33.

[51] See State v. Longoria, 17 Or App 1, 20-21 (1974) (“In a proper case, where there is an indication that a witness suffers mental impairment affecting his testimonial capacity, it may be proper to allow psychiatric or psychological evidence to assist the jury in assessing the ability of that witness to perceive, remember and relate.”); see also United States v. Palmer, 536 F2d 1278 (9th Cir 1976) (citing 3A Wigmore, Evidence § 944 at 778 (Chadburn Rev 1970)) (range of evidence to discredit a witness on capacity to remember, observe, and recount is broad).

[52] Baughman, 200 Or App at 18.

[53] Jeffries v. Murdock, 74 Or App 38, 43, rev den 299 Or 584 (1985).

[54] See State v. Barnes, 208 Or App 640, 650-51 (2006) (witness permitted to testify to opinion that victim was on methamphetamine).

[55] State v. Hite, 131 Or App 59, 62-63 (1994), rev den 320 Or 508 (1995).

[56] Lambert v. Palmateer, 187 Or App 528, 536, rev den 336 Or 125 (2003).

[57] 222 Or App 431 (2008).

[58] Although ordinarily there is no pretrial discovery of experts under the Rules of Civil Procedure, there is an exception in personal injury cases for the reports of physicians and psychologists who have examined the plaintiff. ORCP 44 C; AG v. Guitron, 351 Or 465, 467 (2011).

[59] 331 Or 285, 305 (2000).

[60] 228 Or App 388 (2009).

[61] The opinion does not indicate how the defendants procured a pretrial hearing on this subject.

[62] Id. at 401-02.

[63] O’Key, 321 Or at 305 (quoting Daubert, 509 US at 595).

[64] 345 Or at 245-46 (expanding Brown/O’Key to reliability of opinion of medical causation).

[65] See Jayne, 173 Or App at 544 (urinalysis techniques were error-prone and thus unreliable).

[66] Sampson, 167 Or App 489.

[67] See e.g., State v. Aman, 194 Or App 463 (2004), rev allowed 339 Or 488 (2005), dismissed as improvidently allowed, 339 Or 281 (2005).

[68] Id. at 473 (quoting Sampson, 167 Or App at 510).

[69] 221 Or App 567 (2008).

[70] See State v. Lyons, 324 Or 256 (1996) (determining that DNA evidence is scientifically valid).

[71] See generally Mario Borelli, The Computer as Advocate: An Approach to Computer-Generated Displays in the Courtroom, 71 Ind L J 2 (1996); John Selbak, Digital Litigation: The Prejudicial Effects of Computer-Generated Animation in the Courtroom, 9 Berkeley Tech L J 2 (1994).