Associated cause

[latigo]

I posted the statutes that concern expert testimony under CA law. . . . .

The investigator will testify as to his investigation, and if asked, his conclusions. The ultimate conclusion will always belong to the court, of course.

I did not ask you for a referral to the provisions of California Evidence Code pertaining to expert and lay witnesses. I am very familiar with those provisions. .

What I have asked for - apparently on deaf ears - is case law authority in support of your dubious position that a traffic accident investigator that has not been qualified as an expert can render an opinion on the ultimate question of tort liability.

To clarify further, case law decisions that are contrary to those I have previously cited. [*]
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Now, if in being consistent with your liberal views on the effectiveness of witnesses, you fail to see any distinction between (1) a lay witness in a motor vehicle accident lawsuit rendering an opinion on the ultimate question of tort liability and (2) a detective testifying in a criminal case giving an opinion as to the defendant’s guilt – again, please explain.

Because according to your stated view – “if asked” the detective should be able to “testify as to his conclusions” even thought the ultimate conclusion rests elsewhere.

And again, if you find the two incomparable, then explain why and do so trying to be consistent with your liberal interpretations.
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You know something? All this talk about your considerable courtroom experiences reminds me of something. Both of my parents sat through thousands of lawsuits of every type and description.

One a court reporter and the other a chief deputy clerk. But neither parent knew diddly about the practice of law!

BUT more importantly neither parent ever purported to know!

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[*]"Statements contained in a report compiled by a police officer concerning the cause of or responsibility for an injury to the person or property are properly excluded from evidence on the basis that it constitutes an opinion or conclusion. Lee v. D*i*c*kerson, 183 N.E.2d 615 [/]:

”A lay witness may not express an opinion or draw inferences from the facts. People v. Stokes, 95 Ill. App. 3d 62, 419 N.E.2d 1181 (1981)

“ As a general rule, a witness' opinion is not admissible in evidence because testimony must be confined to statements of fact of which the witness has personal knowledge. People v. Sprinkle, 74 Ill. App. 3d 456, 393 N.E.2d 94 (1979).

"Conclusions and opinions are not admissible because they invade the province of the jury or the court to make its own determination. Dale v. Trent, 256 N.E.2d 402 .

”The portion of the police report concerning the contributing or primary cause of any motor vehicle crash are inadmissible.” Ibid,

”Court found that police officer's opinion on causation based solely on the account of drivers at scene of accident should not have been admitted, but because defense counsel did not object at trial, it was not a reversible.” Prange v. D*i *c*k-erson,629 N.E.2d 915

”As a general rule, a witness' opinion is not admissible in evidence because testimony must be confined to statements of fact of which the witness has personal knowledge.” People v. Sprinkle, 74 Ill. App. 3d 456, 393 N.E.2d 94 (1979).

 

[latigo]

P. S.

To think that one can learn the practice of law from sitting in a courtroom gallery - or on the witness stand - would be like watching the Masters all weekend and going out Monday morning and breaking par for the first time in your life.

 

[CdwJava]

I did not ask you for a referral to the provisions of California Evidence Code pertaining to expert and lay witnesses. I am very familiar with those provisions.

That is good.

What I have asked for - apparently on deaf ears - is case law authority in support of your dubious position that a traffic accident investigator that has not been qualified as an expert can render an opinion on the ultimate question of tort liability.

Where did I ever say that the investigator was not qualified as an expert? The admission of opinion testimony would tend to require (unless opposing counsel failed to object) that the investigator be vetted as such. If not, then any opinion he renders could be moot.

And, you are right, I do not have any case law in CA to argue my point. This is not an area of the law I have to deal with aside from being the guy called to render his opinion. I will leave the reasoning to those who have to argue those points - I don't.

Because according to your stated view – “if asked” the detective should be able to “testify as to his conclusions” even thought the ultimate conclusion rests elsewhere.

It can be asked, but the opinion can be objected to. Been there and seen it. Generally, a detective is not going to be asked for his opinion as to his conclusions unless it is a subject area in which he is a qualified expert: Blood splatter, drug influence, gangs, ad nauseum.

You know something? All this talk about your considerable courtroom experiences reminds me of something. Both of my parents sat through thousands of lawsuits of every type and description.

One a court reporter and the other a chief deputy clerk. But neither parent knew diddly about the practice of law!

Goody for them.

I don't practice law, I have to apply it. I never once claimed to know the legal foundation of expert testimony aside from that limited area I do know about. You made statements that the investigator's opinions would not be permitted in court. That's not true. It's possible, but it depends on factors that none of us can possibly know. My presumption is that the CHP or whatever agency conducted the investigation utilized one of their experts and not some boot. As such, I suspect he is already an approved subject matter expert or can easily be qualified as one in the local court.

As for out of state court opinions, they're nice, but not directly on point in CA. Plus, I never have stated that the report is evidence, or that the opinions would be allowed in, or even that the investigating officer would be qualified as an expert witness, only that it can and often does happen that way - at least in criminal court. Now, I cannot speak to a civil court because officers are rarely called to testify in civil courts on these matter.

 

[latigo]

* * * * *
As for out of state court opinions, they're nice, but not directly on point in CA. . . . .

The cases I cited are nice but not on point because they come from other jurisdictions?? What?! Has California defected? No longer a part of the Union? Abandoned American Jurisprudence?

You’ve thus painted yourself into a corner from which even trany may be unable to extricate you.

However, if you insist that none other than California law, like its swimming pools and movie stars, will satisfy then try this on for size!

"An opinion in a civil case that a defendant is liable also goes beyond merely addressing an ultimate issue and usurps the role of the jury." Summers v. A.L. Gilbert Co. (1999) 69 Cal. App. 4th 1155, 1185, 82 Cal. Rptr. 2d 162.
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It should be entertaining reading to learn how you try to work around the black robes sitting on the California Appellate court.

 

[CdwJava]

Out of state opinions do not - by themselves - have a direct bearing on cases here. Maybe they are applicable, maybe they are not, it depends on the matter asserted and whether CA law holds differently.

But, all your arguments aside, your assertion that the investigating officer cannot offer an opinion in court is simply incorrect. He may not be permitted to do so, but it goes back to the basic issue of what defines expert testimony.

 

[Willlyjo]

P. S.

To think that one can learn the practice of law from sitting in a courtroom gallery - or on the witness stand - would be like watching the Masters all weekend and going out Monday morning and breaking par for the first time in your life.

Along with the fact that there are some lawyers who have no common sense and the practice of law is not an exact science, learning the practice of law is a life long pursuit.

Occassionally a case creates a precedent that can change the way one looks at a law or as frequently happens, new laws come into effect, thus making it necessary for attorneys to continually educate themselves in order to keep abreast of the legal field.

To put it mildly, many law students have spent quality time in a courtroom gallery and some, even on a witness stand, giving them valuable insight into the learning about the practice of law. Your comparison to golf sounds intelligent and entertaining but really, it makes no sense.

 

[latigo]

Out of state opinions do not - by themselves - have a direct bearing on cases here. Maybe they are applicable, maybe they are not, it depends on the matter asserted and whether CA law holds differently.

What do you mean “out of state opinions”, as if it mattered. Are you conveniently ignoring my last posting?

I just cited you an in-state case from the CALIFORNIA COURT OF APPEALS (Summers vs. A. L. Gibert) that precisely corroborates what I wrote in my original response in this thread:

latigo . . . the officer would not be permitted to testify as to his opinion on causal and issues of fault. Those areas are reserved as the exclusive province of the fact-finding body - jury or presiding judge.

Again, the syllabus from the California decision:

An opinion in a civil case that a defendant is liable also goes beyond merely addressing an ultimate issue and usurps the role of the jury. Summers v. A.L. Gilbert Co. (1999) 69 Cal. App. 4th 1155, 1185, 82 Cal. Rptr. 2d 162.

Now if you have difficulty in comprehending the syllabus from the court’s decision, let me know and I will assist you.
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CdwJava But, all your arguments aside, your assertion that the investigating officer cannot offer an opinion in court is simply incorrect. He may not be permitted to do so, but it goes back to the basic issue of what defines expert testimony.

Yes, I'm quite confident that you would prefer to "set my arguments aside". It is obvious that you have already chosen to do so.

But resurrecting them for the moment, the difference between mine and your is also obvious. That being that I have provided you with competent, recognized legal authorities. Where all we have from you is your personal unsubstantiated beliefs.

If you are going to file another rejoinder, please include some substance for a change. Like comparing the ruling of the cited California Court of Appeals in Summers v. A. L. Gilbert Co. with your unique view point on the limitless scope of testimony from a witness in a tort case.
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Most will agree that it is no honor to be a trial lawyer as I was for better than four decades.

But at least in having that professional experience I’m very aware of the undue influence and prejudicial effect that would result were a uniformed police officer permitted to render his opinion as to liability in a motor vehicle accident case. It would have unwarranted influence upon the jury.

And that is precisely the reasoning announced in Summers v. A. L. Gilbert Co. as to why such opinions are not allowed.

And for that very same reasoning - its prejudicial effect upon the jury - an investigating police detective cannot testify as to guilt or innocence of a defendant in a criminal case.

But being consistent with your misconstruction of the laws of evidence and the special fact-finding role of the trial jury, you'd seemingly allow the detective to state his opinion as to guilt and let the jury assess and weigh that opinion against other evidence in the case.
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CdwJava the ultimate conclusion will always belong to the court (jury)” I

That is true, but only to the extent that witness are allowed to address the issues that are to ultimately decided. But untrue if it is meant to suggest that they can draw independent conclusions about those issues and thus infringe upon the province of the jury.

Your quoted statement is only a meaningful principal of law when, as here, the ultimate finding of tort liability is based upon factual and not opinion evidence.

So sayeth the California Court of Appeals!

 

[CdwJava]

Well, I guess the courts in the counties I have testified in have gotten it all wrong then because, by golly, they do use expert testimony to opine as to the as to the cause of collisions all the time. They also use experts to opine on numerous other issues as well. My experience is testifying on the criminal side, so I cannot say how picky they might be on the civil side and given the money I would assume that everyone gets quite anal. I have friends who have retired from what I do with a badge, do it with a suit and tie and get paid a great deal more to offer the same sort of opinion for hire, and they offer opinions even in civil court.

It is not my job to defend my investigation or conclusions with legal precedent, only to offer it if asked. I will leave the legal maneuvering up to the legal eagles that passed the bar.

I can only assume that the prosecutors and attorneys that call experts to offer their opinion understand the relevant law. I suppose, according to you, Latigo, they don't. That might come as a surprise to many of them, but so be it.

To once again return to the OP's query, yes, the investigating officer can testify as to his investigation and determination of cause of the collision.

Now, how does that stand for the proposition a police officer who is qualified as an expert can't opine on the cause of an accident?

He may not be able to say the driver violated the law on running a stop sign, but he could say the driver didn't stop at or ran the stop sign. (Based on his observations.) He can't say the running of the stop sign makes him 100% liable because of negligence per se, but could say that running a stop sign is directly correlated with accidents at that location.

If we try to narrow the difference between fact opinion and law opinion to find the place where the expert opinion testimony on facts becomes inadmissible so we can find some magical bright line on law, we do know, without a doubt, an officer can give opinion testimony on the cause of the accident.

Ditto that.

 

[tranquility]

While I understand the desire to walk back the error, let's look at some of the facts and opinion from the case. (Summers v. Gilbert, 69 Cal. App. 4th 1155)

On January 22, 1996, a legal tragedy occurred which, unfortunately, will also alter the lives of the Summers family. The Summerses' counsel called as an expert witness Ellis Anderson, a lawyer who specializes in the field of transportation and practices primarily before the Public Utilities Commission. Anderson had an opinion on almost every imaginable subject related to the case. And he was allowed to testify to these opinions to the jury over one entire trial day. Anderson opined that Gilbert had a nondelegable duty; Cotton was hauling illegally; Gilbert's contracts with Cotton were illegal; Gilbert was legally required to be registered as a contract carrier rather than a private carrier; and Gilbert was liable for Cotton's acts under the doctrine of nondelegable duty, respondeat superior and negligent hiring of an incompetent contractor. Anderson even pulled out his proverbial crystal ball and predicted what future Courts of Appeal would do with respect to the current regulation of transportation in California.

So why is this a problem? Simply put, Anderson, under the direction of the Summerses' counsel, completely overstepped his legal bounds. He was a witness, not the judge. Both state and federal courts have held that expert testimony on issues of law is not admissible since it the judge's responsibility to instruct the jurors on the law-not that of the witness. The reason is that the lawyer-expert who expounds on the law usurps the role of the trial court. This is a particular problem when, as in this case, the trial court's instructions fell far short of the opinions expressed by Anderson.

Now, how does that stand for the proposition a police officer who is qualified as an expert can't opine on the cause of an accident?

He may not be able to say the driver violated the law on running a stop sign, but he could say the driver didn't stop at or ran the stop sign. (Based on his observations.) He can't say the running of the stop sign makes him 100% liable because of negligence per se, but could say that running a stop sign is directly correlated with accidents at that location.

While we may try to narrow the difference between fact opinion and law opinion to find the place where the expert opinion testimony on facts becomes inadmissible so we can find some magical bright line on law, we do know, without a doubt, an officer can give opinion testimony on the cause(s) of the accident.

 

[latigo]

While I understand the desire to walk back the error, let's look at some of the facts and opinion from the case. (Summers v. Gilbert, 69 Cal. App. 4th 1155)

On January 22, 1996, a legal tragedy occurred which, unfortunately, will also alter the lives of the Summers family. The Summerses' counsel called as an expert witness Ellis Anderson, a lawyer who specializes in the field of transportation and practices primarily before the Public Utilities Commission. Anderson had an opinion on almost every imaginable subject related to the case. And he was allowed to testify to these opinions to the jury over one entire trial day. Anderson opined that Gilbert had a nondelegable duty; Cotton was hauling illegally; Gilbert's contracts with Cotton were illegal; Gilbert was legally required to be registered as a contract carrier rather than a private carrier; and Gilbert was liable for Cotton's acts under the doctrine of nondelegable duty, respondeat superior and negligent hiring of an incompetent contractor. Anderson even pulled out his proverbial crystal ball and predicted what future Courts of Appeal would do with respect to the current regulation of transportation in California.

So why is this a problem? Simply put, Anderson, under the direction of the Summerses' counsel, completely overstepped his legal bounds. He was a witness, not the judge. Both state and federal courts have held that expert testimony on issues of law is not admissible since it the judge's responsibility to instruct the jurors on the law-not that of the witness. The reason is that the lawyer-expert who expounds on the law usurps the role of the trial court. This is a particular problem when, as in this case, the trial court's instructions fell far short of the opinions expressed by Anderson.

Now, how does that stand for the proposition a police officer who is qualified as an expert can't opine on the cause of an accident? [/Q

. . . let's look at some of the facts and opinion from the case. ? ? ?

[I suspect that you could not only see, but also hear the blood drain from the faces of plaintiff’s counsel when they learned that their $3 million dollar verdict had evaporated. And perhaps as well from the face of the local BMW dealer.]
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But getting to your question. . .

Now, how does that stand for the proposition a police officer whom is qualified as an expert can't opine on the cause of an accident?

First, let it be noted that the two paragraphs you have quoted from that 36 page Summers decision are mere prologue. By no means are they representative of the reviewing court’s profound and lengthy analyses, opinions and laws announced in that important California decision.

So I will take you question to be whether or not the Appellate Court’s decision in Summers stands as precedent prohibiting an appropriate expert witness from rendering an opinion on the “cause” of a vehicular collision?

And the answer is that it does not. Not when scientific knowledge is deemed necessary to assist the jury to reach a conclusion as to the “cause” of the accident!

But not when such a fact finding effort is within the realm of common experience.

“Notwithstanding Evidence Code section 805, Expert opinions which invade the province of the jury are not excluded because they embrace an ultimate issue, but because they are not helpful (or perhaps too helpful). "[T]he rationale for admitting opinion testimony is that it will assist the jury in reaching a conclusion called for by the case. 'Where the jury is just as competent as the expert to consider and weigh the evidence and draw the necessary conclusions, then the need for expert testimony evaporates.' " Citing: People v. Torres (1995) 33 Cal. App. 4th 37, 47 [39 Cal.Rptr.2d 103];

And never when the expert’s opinion is grounded upon hearsay evidence. (E. g., witness statements at the scene that X failed to observe traffic controls/signals/signs by stopping or yielding to Y.)

Also such a witness cannot comment on the ultimate issue of tort liability.

“An opinion in a civil case that a defendant is liable also goes beyond merely addressing an ultimate issue and usurps the role of the jury.” Ibid. Page 1185

“An expert may not use opinion testimony to improperly usurp the fact-finding function of the jury. Ibid. Page 1183.

“Evidence Code §805, notwithstanding, an expert must not usurp the function of the jury, and an opinion that amounts to nothing more than an expression of belief as to how a case should be decided is inadmissible.” Ibid. Page ll83

“Even if an expert's opinion does not go to a question of law, it is not admissible if it invades the province of the jury to decide a case.” Ibid.

"The fact that an opinion or inference is not objectionable because it embraces an ultimate issue does not mean, however, that all opinions embracing the ultimate issue are admissible.... Thus, an opinion that plaintiff should win is rejected as not helpful.". Ibid.

In other words, when an expert's opinion amounts to nothing more than an expression of his or her belief on how a case should be decided, it does not aid the jurors, it supplants them.” See: 1 McCormick on Evidence, supra, § 12, p. 49, fn. 11

 

[tranquility]

So it is your opinion the jury would know the significance of the "drop" of debris and fluid and what short staccato skids for a short distance means? Also, are we to assume a jury knows physics and the law of conservation of momentum?

 

[latigo]

So it is your opinion the jury would know the significance of the "drop" of debris and fluid and what short staccato skids for a short distance means? Also, are we to assume a jury knows physics and the law of conservation of momentum?

If you don’t know the answer to that self-evident, pedagogical example of cerebral flexing, you don’t understand the purpose of expert testimony. Which is to assist the fact finder in arriving at ultimate issues of fact that are beyond common experience.

And I doubt that the trial judge whose reign includes the discretion to admit or deny expert testimony would “assume a jury” would be versed in those (your) arcane subjects.
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BUT what you asked and I responded to was this:

Tranquility - Now, how does that Summers vs. A. L. Gilbert and CottonTrucking stand for the proposition a police officer who is qualified as an expert can't opine on the cause of an accident?

If you find my response unsatisfactory or inaccurate, please explain.

Thank you

 

[tranquility]

*I* certainly understand. But, I was on a jury where an officer testified on such matters in a civil case.

 

[latigo]

So it is your opinion the jury would know the significance of the "drop" of debris and fluid and what short staccato skids for a short distance means? Also, are we to assume a jury knows physics and the law of conservation of momentum?

You've posted five times in this thread, generally disagreeing with me and championing the cause of the self appointed legal authority and your pal "Carl", to the rest of us "CdwJava".

And neither or you have cited one blessed legal authority, pro or con. So let's move on. It’s way past time anyhow.

Your reaction to my last post in which I attempted to distill the Summers case (and only because you asked) brings to mind John Steinbecks’ male character “Hazel” in “Cannery Row”.

“Hazel didn’t listen to conversation, he just enjoyed the flow.”

 

[tranquility]

I'm truly sorry I didn't get locked into your attempt to obfuscate what is not that complex. You see, I actually know about issues and such and your attempt to change the conversation to something else is not going to be successful. Does such baffling with cud-chewing fecal matter work often in your life?

Police officers give expert testimony all the time. They don't have to be accident re-constructionists or moonlight as physicists, all they need is the requisite training and experience for a court to find their opinion testimony is useful. (Bad word, I don't want to look up the jargon.)

Besides, if I wanted to play trade-the-cases game with you, I might go with something like Visueta v. General Motors Corp. (1991)
234 Cal. App. 3d 1609.

[8] Even though expert testimony may not be required to show the parking brake lever was installed in an inaccessible location, lay opinion as to the cause of an automobile collision is not admissible. In Mikulich v. Carner (1952) 69 Nev. 50 [240 P.2d 873, 38 A.L.R.2d 1], the Supreme Court of Nevada decided this very issue. There the plaintiff was a passenger in a bus which collided with a truck. Over objection, the truck driver, who did not qualify as an expert witness, was permitted to give a lay opinion as to the cause of the collision. The Nevada Supreme Court determined that the trial court committed reversible error and said "... where expert or special knowledge is essential to formation of an intelligent opinion which would be of aid to the jury. ... [a] nonexpert witness cannot express his opinion as to the cause of a particular accident." (240 P.2d at p. 876); see also 1 Witkin, Cal. Evidence (3d ed. 1986) � 468, p. 440.)

As indicated by Mr. Witkin, "[h]ighway patrol officers, garagemen, automobile mechanics and others with similar special experience [i.e., experts] may testify on various matters in issue in automobile accident cases." (1 Witkin, Cal. Evidence, supra, � 500, p. 472.) Even though he owned and had driven the truck, Visueta was not an expert on automobile accident reconstruction. He could not give a lay opinion as to the cause of the collision.