United States District Court, N.D. Oklahoma
OPINION AND ORDER
GREGORY K. FRIZZELL CHIEF JUDGE.
matter comes before the court on the Motion in
Limine Number Eight: To Exclude the Testimony of J.
Peter Messler [Doc. #214] of defendant City of Tulsa and the
Eleventh Motion in Limine [Doc. #206] of plaintiff
Michelle Dawn Murphy. The City of Tulsa's Eighth Motion
in Limine seeks to wholly preclude Ms.
Murphy from calling as a witness, or presenting any testimony
of, retired Judge J. Peter Messler, who presided over Ms.
Murphy's preliminary hearing in 1994. Ms. Murphy's
Eleventh Motion in Limine seeks admission of Judge
Messler's testimony regarding the quality of the Tulsa
Police Department's (“TPD”) investigation of
the murder of Travis Wood, and the basis for Judge
Messler's finding of probable cause. For the reasons
discussed below, the City of Tulsa' Motion in
Limine Number Eight is granted, and Ms. Murphy's
Eleventh Motion in Limine is denied.
Judge Messler's Testimony Regarding His Opinions of the
Quality of TPD's Investigation of the Murder of Travis
City moves to exclude Judge Messler's testimony regarding
his opinions of the quality of TPD's investigation of the
murder of Travis Wood on the basis that such testimony is
improper expert witness testimony pursuant to Fed.R.Evid.
702. Ms. Murphy asserts that such testimony is relevant lay
witness testimony under Fed.R.Evid. 701.
to Fed.R.Evid. 701,
[i]f a witness is not testifying as an expert, testimony in
the form of an opinion is limited to one that is:
(a) rationally based on the witness's perception;
(b) helpful to clearly understanding the witness's
testimony or to determining a fact in issue; and
(c) not based on scientific, technical, or other specialized
knowledge within the scope of Rule 702.
Fed.R.Evid. 702 permits the introduction of expert
testimony, provided that “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, ” “the testimony is based on sufficient
facts or data, ” and the testimony is the product of
reliably applied principles and methods. Fed.R.Evid. 702. The
advisory committee notes to the 2000 Amendments to Rule 701
state as follows:
Rule 701 has been amended to eliminate the risk that the
reliability requirements set forth in Rule 702 will be evaded
through the simple expedient of proffering an expert in lay
witness clothing. Under the amendment, a witness'
testimony must be scrutinized under the rules regulating
expert opinion to the extent that the witness is providing
testimony based on scientific, technical, or other
specialized knowledge within the scope of Rule 702.
Fed. R. Evid. 701, advisory committee notes.
court is not persuaded that Judge Messler's testimony
regarding the quality of TPD's investigation is
admissible as opinion testimony by a lay witness pursuant to
Fed.R.Evid. 701. Rule 701 permits testimony by a lay witness
only if the opinion is “rationally based on the
witness's perception.” Based on the court's
review of Judge Messler's testimony, the court is not
persuaded that Judge Messler's opinions are rationally
based on Judge Messler's perception.
response to questioning regarding his opinion as to the
quality of the investigation conducted in Ms. ...