Tuesday, June 14, 2011

And experts get knowledge how exactly?

A new Eleventh Circuit opinion is out today, and it’s the sort of thing that makes you hope for a writ of cert. The government pulled a guy out of prison and had him testify to the jury about how mortgage fraud works. Seriously, that’s just what happened:
Key, a former real estate attorney who was serving time in prison, was called as a witness for the government, and he testified about mortgage fraud.
Let’s pause and reflect for a minute on the fact that we live in a time where federal judges do not even blink when federal prosecutors do this sort of thing; it’s perfectly commonplace.

Okay, ready for the holding now? Here it is:
The district court did not err in permitting Key to testify as a lay witness. Because the part of Key’s testimony that was elicited by the government was based on his own personal knowledge of mortgage fraud, which he had acquired through his experience as a former real estate closing attorney who had engaged in fraudulent transactions of that nature, he did not have to be qualified as an expert under Fed. R. Evid. 702.
33273_512x288_generated__ACR0VNRBI0CTesKXfPybNg.jpgWhat? How do you possibly square that holding with the rule itself which specifically says that experts are people who gain specialized knowledge through “experience, training, or education”? Has no one on the Eleventh Circuit ever seen My Cousin Vinny?


Anonymous said...

Why would the Court grant cert? Doesn't seem like there's a circuit split on the issue. In fact, there probably never will be since the issue of what qualifies as "experience, training, or knowledge" is extremely fact-specific. The Court decides issues, not cases.

You seem bothered by the Eleventh Circuit's decision. How have other courts of appeals defined the phrase "experience, training, or education?" I bet it's a rare case where a district judge gets overturned, especially since the appellate courts are reviewing for abuse of discretion.

Anonymous said...

for a federal judge of carnes' ability, joined by two others, to make that statement in defending this practice, shows how out of touch judges can become. how ridiculous. tons of experts derive their knowledge from first hand knowledge, as you say. That doesn't make them any less of an expert for rule 702 purposes. On the other hand, the court should have conceded this and found harmless error, which it likely was. this is what happens when we do not have some trial judges on the appellate court.

Anonymous said...


Does the rule state the the experience has to be non-criminal?