"Probative" and "Fundamentally Fair"
The Seventh Circuit has affirmed the admissibility of a forensic document examiner's opinion, in immigration proceedings, that a document of ostensibly Ethiopian origin was forged. The court's opinion in Gebrendrias v. Ashcroft, No. 02-4254 (7th Cir. Oct. 14, 2003), is unpublished, but a summary is available here. The parties' briefs are also available at the Seventh Circuit's site, even though the opinion itself isn't.
The Ethiopian woman seeking asylum argued on appeal that the testimony of the government's forensic expert failed to satisfy Daubert, but the Seventh Circuit rejected that argument on the ground that traditional evidentiary rules do not apply in immigration proceedings, where admissibility depends only on whether the proffered evidence is "probative" and "fundamentally fair." Having so held, the opinion does go on to perform a detailed analysis of the expert's testimony, and the reader comes away with the feeling that admissibility would have been upheld even under Daubert and Kumho Tire. The witness was highly experienced and well-qualified, his analysis was detailed and convincing, and (to judge from the Seventh Circuit's opinion) the appellant's attack on it was weak. And so maybe the choice of evidentiary standards didn't govern the result in this particular case.
All the same, two questions seem worth asking. First, it seems likely that a relaxation of normal evidentiary standards in immigration proceedings would rest largely on the difficulty that the petitioners may have in securing non-hearsay evidence, with key witnesses and documents frequently located far away, in the petitioner's country of origin. That, by itself, would seem a fairly weak basis to relax the evidentiary requirements when live expert testimony is actually proffered. In particular, when the United States offers such testimony, no obvious reason appears for failure to insist on its reliability, under whatever standards are used to weigh reliability more generally. Indeed, there are strong arguments that if anyone is to be barred from reliance on dubious evidence, the first litigant to be barred should be the sovereign.
But second, one is moved to wonder whether it might be a workable standard to govern the admissibility of expert evidence in general, to insist only that it be "probative and fundamentally fair." If an expert's opinion satisfies these two requirements, can there be persuasive policy grounds to exclude it nevertheless?
The Ethiopian woman seeking asylum argued on appeal that the testimony of the government's forensic expert failed to satisfy Daubert, but the Seventh Circuit rejected that argument on the ground that traditional evidentiary rules do not apply in immigration proceedings, where admissibility depends only on whether the proffered evidence is "probative" and "fundamentally fair." Having so held, the opinion does go on to perform a detailed analysis of the expert's testimony, and the reader comes away with the feeling that admissibility would have been upheld even under Daubert and Kumho Tire. The witness was highly experienced and well-qualified, his analysis was detailed and convincing, and (to judge from the Seventh Circuit's opinion) the appellant's attack on it was weak. And so maybe the choice of evidentiary standards didn't govern the result in this particular case.
All the same, two questions seem worth asking. First, it seems likely that a relaxation of normal evidentiary standards in immigration proceedings would rest largely on the difficulty that the petitioners may have in securing non-hearsay evidence, with key witnesses and documents frequently located far away, in the petitioner's country of origin. That, by itself, would seem a fairly weak basis to relax the evidentiary requirements when live expert testimony is actually proffered. In particular, when the United States offers such testimony, no obvious reason appears for failure to insist on its reliability, under whatever standards are used to weigh reliability more generally. Indeed, there are strong arguments that if anyone is to be barred from reliance on dubious evidence, the first litigant to be barred should be the sovereign.
But second, one is moved to wonder whether it might be a workable standard to govern the admissibility of expert evidence in general, to insist only that it be "probative and fundamentally fair." If an expert's opinion satisfies these two requirements, can there be persuasive policy grounds to exclude it nevertheless?
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