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Murphy v. The City of Tulsa

United States District Court, N.D. Oklahoma

January 23, 2018

MICHELLE DAWN MURPHY, Plaintiff,
v.
THE CITY OF TULSA, Defendant.

          OPINION AND ORDER

          GREGORY K. FRIZZELL CHIEF JUDGE.

         This 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.

         I. Judge Messler's Testimony Regarding His Opinions of the Quality of TPD's Investigation of the Murder of Travis Wood

         The 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.

         Pursuant 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.

         Conversely, 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.

         The 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.

         In response to questioning regarding his opinion as to the quality of the investigation conducted in Ms. ...


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