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New Trial: Undisclosed Expert Testimony Sufficiently Prejudicial

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By Robyn Hagan Cain on January 27, 2012 3:05 PM

Terence Tribble was arrested on Mother's Day in 2006 for drinking on a public way. Officers Nicholas Evangelides and Roger Fieser found heroin and crack cocaine on Tribble during a search incident to arrest. (A bad Mother's Day for Tribble; the worst Mother's Day ever for his mom.)

The drug charges against Tribble were dismissed for lack of probable cause. Tribble filed a civil rights lawsuit against the officers for illegal stop, false arrest, illegal search, and a violation of due process.

A jury ruled for the defendants, and Tribble appealed.

This week, the Seventh Circuit Court of Appeals ruled that Tribble should get a new trial in his civil rights lawsuit.

Tribble’s trial strategy was focused on the claim that Officer Evangelides and Fieser did not have probable cause to arrest him. The officers, in response, wanted to explain why that lack of probable cause didn’t mean that they didn’t actually find drugs on Tribble.

Assistant State’s Attorney Sabra Ebersole testified at the trial — over Tribble’s objection — that low drug weight cases are usually thrown out. Tribble moved for a new trial, arguing that the court erred in allowing Ebersole to testify as an expert without proper disclosures and without a proper foundation. The district court responded, “Ebersole never offered an opinion. Ebersole testified as to her experience on the narcotics call in the state court, offering factual statements based on her personal observations.”

The Seventh Circuit Court of Appeals disagreed, finding that the district court improperly permitted Ebersole to testify as an expert, and that the error was sufficiently prejudicial to require a new trial.

The appellate court noted that Ebersole testified about the percentage of cases dismissed for lack of probable cause over a six-month period, explained what “would be considered” a low gram weight in a narcotics case at the circuit court, stated that the amount of drugs allegedly found on Tribble would constitute a low gram weight, and surmised that “the overwhelming majority of the cases that were findings of no probable cause were for what will be considered a low amount of narcotics.”

The Seventh Circuit ruled that “broad generalizations and abstract conclusions are textbook examples of opinion testimony;” the district court should have considered whether Ebersole’s testimony was admissible under FRE 701 as lay opinion, or if it had to pass the more rigorous standards of FRE 702. Since lay opinions and inferences may not be “based on scientific, technical, or other specialized knowledge within the scope of Rule 702,” the court noted that Ebersole’s testimony had the familiar syllogistic structure of much expert testimony.

The court also pointed out that Ebersole’s testimony was exactly the kind of testimony that the court had prohibited in a pretrial ruling.

Trial courts don’t always reach the right evidentiary conclusion when considering opinion evidence. If you think a district court botched a FRE 701 or 702 ruling in one of your federal cases, the Seventh Circuit Court of Appeals can right the wrong.

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