United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION & ORDER
Gregory F. Van Tatenhove United States District Judge.
third day of trial, the Government called Dr. Oluwole John
Abe as a fact witness. However, on cross examination, Defense
Counsel elicited opinion testimony from Dr. Abe. As a result,
the Court instructed the jury according to the Sixth Circuit
Pattern Jury Instruction 7.03A for Witnesses Testifying to
Both Facts and Opinions. At the close of trial for the day,
the Defense moved for a mistrial based on this instruction.
They later filed a Motion for Mistrial in the record. [R.
defendant may move for a mistrial where there is a legitimate
claim of seriously prejudicial error.” United
States v. Moore, 917 F.2d 215, 220 (6th Cir. 1990).
Declaring a mistrial is within the “discretion of the
trial court” and “a determination of the fairness
to the accused is the primary concern” when determining
whether a mistrial should be granted. Id.
time to time, witnesses are called as primarily fact
witnesses but are asked questions, based on their expertise,
to give an opinion. Traditionally, courts have been careful
to make sure that juries can distinguish between the two
types of testimony. Sixth Circuit teaching says that an
instruction should be given contemporaneous with that
testimony as well as at the end of the trial. See United
States v. Lopez-Medina, 461 F.3d 724, 743 (6th Cir.
2006). In fact, it's error, though not always reversible
error, to not give the instruction.
The Sixth Circuit has held explicitly that “it is an
error to permit a witness to testify both as a fact witness
and as an expert witness unless there is a cautionary jury
instruction regarding the witness's dual witness roles
or a clear demarcation between the
witness's fact testimony and expert opinion
testimony.” United States v. Smith, 601 F.3d
530, 540 (6th Cir. 2010) (internal quotations and brackets
omitted; emphasis added). “A failure to instruct can
prejudice the defendant.” Id.
Dr. Abe testified to only facts during the direct examination
by the Government. [See R. 116 at
1-21.] During the Defendant's cross
examination, however, he expressed several opinions
specifically elicited by the Defense. [See R. 116 at
21-67.] Notably, as soon as Defense counsel opened the door
to Dr. Abe's opinion testimony, the Government objected
to extending Dr. Abe's testimony to opinion. [R. 116 at
51.] At sidebar, the Court indicated that, if Dr. Abe opined
as the Defense asked him to, it would need to give Sixth
Circuit Pattern Jury Instruction 7.03A contemporaneously with
the witness. [R. 116 at 55.] Nevertheless, the Defense
continued and elicited multiple instances of opinion
Q. Dr. Abe, I think the question was that a -- find my place
in here -- a patient who had had a valve replacement and who
had AV block, which this patient had both of those; is that
Q. Would -- under the guidelines would be an appropriate
candidate for a pacemaker?
[R. 116 at 58.]; see also [R. 116 at 59] (“Q.
And I know you didn't -- you're not talking about the
time the pacemaker was implanted, but dizziness and near
fainting are symptoms that if connected with a low heart
rate, slow heart rate, would be consistent with the need for
a pacemaker? A. Yes.”); [R. 116 at 60] (“Q. Okay.
So on -- on the day you saw him, he was suffering from this
particular condition, and a patient with that condition would
be appropriate for a pacemaker without symptoms? A. On that
day, yes.”). Dr. Abe, responding to questions by
Defense counsel, clearly went beyond describing a set of
facts to opining on whether or not he thought certain
patients would be appropriate candidates for pacemakers. Dr.
Abe expressed opinions favorable to
Defendant, which was candidly admitted by Defense counsel
when arguing for a mistrial. Consequently, the Court, on the
same day of the testimony, instructed the jury using the
pattern jury instruction, Sixth Circuit Pattern Jury
Instruction 7.03A for Witnesses Testifying to Both Facts and
Opinions, to guide them on considering both types of
evidence. This was not only appropriate, but necessary to
avoid a finding of error. This was not an error, much less a
prejudicial error requiring a mistrial. See Moore,
917 F.2d at 220.
rare for a lawyer to object to the language of a pattern jury
instruction, much less to argue that it's ground for a
mistrial. That's what presents itself here. After
reviewing the record, and finding Dr. Abe did express medical
opinion as well as fact testimony, the instruction was
appropriate and the motion for mistrial is
 Most notably, the Defendant actually
objects to this as well; stating that “[t]he government
sought both fact and opinion testimony from Dr. ...