He Who Lives by the Reasonable Extension of Time . . .
Have you just unwittingly granted opposing counsel a reciprocal extension? Apparently so, at least in West Virginia.
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[Defendant] does not challenge Agent Bellis' qualifications to testify, but argues instead that Bellis' testimony about shootings and the use of firearms in drug conspiracies did not "assist the trier of fact" under Rule 702, and was in fact prejudicial because there was no evidence connecting Reynolds to any firearms or violence. We reject this claim. Bellis' statements about firearms and shootings were not central to his testimony, and in the context of a general discussion of the operation of drug organizations, they did not prejudice [defendant's] case. The District Court reasonably concluded that Agent Bellis' testimony would assist the jury in understanding the nature of the conspiracy alleged by the government. Thus, we hold that the District Court did not abuse its discretion in permitting the testimony of Agent Bellis.See United States v. Reynolds, No. 04-3183 (3d Cir. Mar. 27, 2006) (Sloviter, Fuentes, & Restani, JJ.).
"I merely proffer that we have the engineer here outside the courtroom, that he would testify, if permitted, that he analyzed the coroner's report, talked to the defense investigator in this case, and he presented a piece of demonstrative evidence that's on this tape, Defendant's Exhibit A, and also B through E, which are stills coming from the tape which would demonstrate, if permitted, the testimony of the investigator as to his theory of what happened in this case."At least you've now preserved the record, right?
Respondent points to Daubert's language that the "focus, of course, must be solely on principles and methodology, not on the conclusions that they generate." He claims that because the District Court's disagreement was with the conclusion that the experts drew from the studies, the District Court committed legal error and was properly reversed by the Court of Appeals. But conclusions and methodology are not entirely distinct from one another. Trained experts commonly extrapolate from existing data. But nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence which is connected to existing data only by the ipse dixit of the expert. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.We suspect that the textual proximity and conceptual affinities of "ipse dixit" and "analytical gap" in this passage render it vulnerable to misreading, helping to foster the widespread confusion of the two concepts. Once that confusion has taken root, it can be compounded by a mindset that tends to discount all "nonscientific" species of rationality. Every "nonscientific" inference looks, to those in the grip of this mindset, like an "analytical gap." Given the false equation between "analytical gap" and "ipse dixit," it's a short step from there, via transitivity, to the conclusion that all nonscientific inference must be ipse dixit.
I agree that sequestering of expert witnesses is generally not sensible (though if they were to find a really nice hotel, I might be convinced otherwise). My only counter-example would have to be something along the lines of the following:The third paragraph of this counterexample is imbued, perhaps, with a certain wistful longing for a world in which experts opine from behind some Rawlsian veil of ignorance. It may be granted that objective, unbiased testimony might be more forthcoming in such a world. But that world is very distant from our current adversary system. Still, even if dreams of any notionally better world were put aside, it would remain to address the underlying scenario described in the counterexample's second paragraph, where factual evidence emerges at trial that undercuts an expert’s assumptions or analysis. In that situation, there may be something to be said for testing the expert’s credibility by surprising the expert with the information and watching the expert squirm in response.
The expert witness writes a report stating that because EvilPharma put out drugs A and B, one million people developed a disease from taking one or more of those drugs. In trial, it comes out that EvilPharma had received glowing test results about A but bad results on B, and put both drugs on the market anyway. Assume that everyone feels that the jury is much more likely to find liability for the effects of B than for the effects of A. The expert witness is then asked in trial whether there was a way to look at his/her data to distinguish between the effects of A and B, and claims that if you squint hard enough and turn one of the graphs on its side, it's clear that A (if a defendant's expert) or B (if a plaintiff's expert) caused at least 999,999 of the one million cases of disease.
Now, one might say this can be avoided by cutting off the answer with some voir dire on whether the expert's pre-trial report and deposition separated out the effects of A and B, but the expert may claim that all he/she is doing is highlighting something that was already in the data presented. I would think that ideally, the judge would tell all the experts to separate out the effects of drugs A and B without any clue as to which side would favor which split. However, that might mean that the expert could never meet with counsel who might smile or make a funny face in planning the revised direct. So, while I'm not convinced that sequestration would be practical, I could imagine it being useful in theory.
I'll see your Rawlsian longing and raise you a Heisenberg uncertainty. You do bring up an interesting point that the more we get to see the expert surprised, the less well-considered the expert's analysis would have to be.
One partial solution would be to have more court-appointed experts who, while they might still have their own biases, would at least be able to consult with either neither set of counsel or else counsel for both sides. Another potential solution might be to give each side a limited number of pre-trial computation-intensive hypotheticals that it could ask the other side's expert, presumably with the questioner footing the bill for any additional work. (And coming up with and approving an acceptable budget would be a nightmare.) Thus, in the case of the two drugs, the hypothetical would be to assign relative harm to each drug. The expert would then submit a responsive report and if he or she came up with a different answer at trial after the evidence is presented, the responsive report could be used for impeachment. This may involve tipping one's hand to the other side before trial, but I'm sure that lawyers are well-acquainted with making judgments about whether such a strategy is worthwhile.
Anyway, thanks for raising the interesting question. Deep down, I do agree with you that because experts' testimony is supposed to be based on other facts in the case, as opposed to the testimony of a fact witness in most situations, sequestration of experts is generally not a good idea.
In her order, Brinkema limited the scope of what the untainted government aviation witness can tell the jury.We'll watch with interest to see how well that line can really be drawn.
They may be questioned to describe "what United States government 'could' have done to prevent the attacks had the defendant disclosed in August 2001 the facts that he admitted in pleading guilty," Brinkema said.
The witnesses may not testify "as to what the United States government 'would' have done with this information. That type of testimony would be unduly speculative and misleading to the jury," Brinkema said.
Update 3/16/06: Ms. Akili has been sentenced to five years' probation conditioned on her obtaining mental health treatment. When prosecutors complained at sentencing that Akili has taken no action to date to secure treatment, her lawyer explained that she had been unable to do so, because she has no birth certificate for her real name of Arlene Susan Schwartz.
Sentencing is Tuesday for Talibah Amatullah Akili, who pleaded guilty to first-degree perjury for falsely claiming that she possessed multiple graduate degrees and other credentials that allowed her to testify as an expert witness in a child custody case in Family Court.
Akili, who had only a high school diploma, ran the foster care and adoption program at Ibero-American Action League. She is expected to receive five years' probation and mandatory mental health treatment.
The government has charged an individual with possession of CP. In the initial search for data, "standard" forensic tools (Encase, iLook, etc.) were used to no avail. Afterwards, a "secret" tool called Quincy was used to supposedly find data that was unable to be found by the other tools. Quincy supposedly only "located" data (which was in unallocated space and which had been deleted and in a state completely unretrieveable by other than forensic tools used by experts) and then the other tools were used again to retrieve the data which was "located" by Quincy. Should the evidence be suppressed based on the fact that Quincy is so secret that nobody outside of a few law enforcement/government types have verified its reliability and/or accuracy? Does anyone have any thoughts on this? I'm very curious.Our own take: Because the Quincy tool was used only to locate the data, which was retrieved, once found, by other means, it's not clear that anything involving Quincy need even be offered in evidence. If a psychic tells the police where to dig, and if, on digging there, they discover the shallow grave, then they have found the corpus delicti. There's no requirement that the reliability of the psychic's methodology pass Daubert muster.
[Defendant] simply did not create the conflict necessary for the issue to be appealable. The defendant could have called his witnesses, had them testify, and then objected at the proper time to government rebuttal testimony that he felt was "overkill." In such case, we would have had a concrete ruling by the district court as to the scope of the rebuttal. By not calling the witnesses, however, he would force this court to speculate twice: once with regard to the content of the defense experts' testimony, and a second time about what the district court would have permitted from the government expert in rebuttal. It would be improper for this court to engage in such speculation, and thus we decline to reach the merits of this issue.But hindsight, of course, is twenty-twenty. During trial, it can be hard to keep your eye on the appellate ball -- especially in the recurring situation where a trial judge hints broadly at what consequences may follow from counsel's evidentiary decisions but makes no actual ruling on the point. To be sure, it may often make tactical sense to take the hint and waive the issue. But that decision should be made with the risk of waiver clearly in view. As one federal district judge of our acquaintance is wont to say, the court can't call balls and strikes unless somebody first throws a pitch. Likewise, the appellate courts can't overrule the umpire, if he never had occasion to make a call in the first place.
I am currently representing the State of West Virginia in a state habeas appeal in which the primary issue seems to be whether a trial judge may testify as an expert witness as to a defendant's future dangerousness. The trial court bifurcated the defendant's first degree murder trial. After the jury found him guilty, the State called the chief judge of the judicial circuit who testified that, based upon his experiences with the defendant, he constituted a future danger to the community. The judge was not the same judge presiding over the trial.If our readers have any insights, or know of any relevant legal authorities, we're sure Mr. Goldberg would be glad to hear of them.
If anyone knows of any case law one way or the other, please forward me an e-mail with the cite at the address below. Thank you.
Robert D. Goldberg
Assistant Attorney General
State Capitol, Room E-26
Charleston, WV 25305
robert.goldberg [at] wvago.gov