Expert Testimony on False Confessions Too Abstract, Says 5th Circuit

In an unpublished per curiam opinion, the Fifth Circuit has upheld a trial court's decision excluding a criminal defendant's proffered expert evidence on false confessions. The expert's testimony, the panel said, consisted only of generic propositions; the expert failed to apply them adequately to the facts of the case. From the opinion:

Pursuant to Rule 702, testimony from a qualified expert witness is permitted if the opinion will assist the trier of fact, "the testimony is based upon sufficient facts or data, [] the testimony is the product of reliable principles and methods, and [] the witness has applied the principles and methods reliably to the facts of the case." Fed. R. Evid. 702 (emphasis added). Here, the district court determined that [the expert] added nothing more than abstract scientific nostrums. [The expert's] proffered testimony did not apply recognized or accepted principles to [the defendant's] particular circumstances. Instead, it offered only the general proposition that false confessions can occur. See United States v. Alexander, 816 F.2d 164, 169 (5th Cir. 1987) (stressing that trial court's are not required to admit generic expert testimony). Accordingly, even if the district court could have properly admitted the evidence, it was not "manifestly erroneous" to exclude it.

See United States v. Dixon, No. 06-31234 (5th Cir. Jan. 16, 2008) (King, Barksdale, & Dennis, JJ.).

Fifth Circuit Rebuffs Attempt to Impose Reliability Requirements on Future Dangerousness Testimony at Capital Sentencing

On Thursday, a Fifth Circuit panel held that expert evidence on future dangerousness, offered during the sentencing phase of federal capital proceedings, need not satisfy Daubert's reliability requirements. The contrary position had been urged not only by the death-sentenced appellant, but also by the American Psychological Association as amicus curiae. See United States v. Fields, No. 04-50393 (5th Cir. Mar. 29, 2007) (King, Smith, & Benavides, JJ.).

The Federal Death Penalty Act ("FDPA") provides that evidence at sentencing may be considered "regardless of its admissibility under the rules governing admission of evidence at criminal trials." 18 U.S.C. § 3593(c). Because Daubert is a creature of the Federal Rules of Evidence, its reliability requirement is "not directly applicable" in sentencing proceedings, the panel said. True, the FDPA also provides that "information may be excluded if its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury." Id. But this language, said the panel, cannot be read as requirement that "the probative value of expert testimony for sentencing purposes" be evaluated in "a form of Daubert hearing." Any such argument would be "better couched as a constitutional claim based in the Eighth and Fifth Amendments," the court said -- before going on to hold that any constitutional argument in this vein was simply impossible under Barefoot v. Estelle, 463 U.S. 880 (1983).

Apparently perceiving some need to defend the pre-Daubert ruling in Barefoot v. Estelle against arguments that its appraisal might be dated, the panel said the following in footnote 28 of its opinion:

A recent opinion by Justice Stevens confirmed the breadth and continuing viability of Barefoot. See United States v. Scheffer, 523 U.S. 303, 334 (1998) (Stevens, J., dissenting) ("There is no legal requirement that expert testimony must satisfy a particular degree of reliability to be admissible. Expert testimony about a defendant's 'future dangerousness' to determine his eligibility for the death penalty, even if wrong 'most of the time,' is routinely admitted.") (emphasis added). No member of the Scheffer Court disagreed.

Justice Stevens's "recent" dissent in Scheffer can be found here. Scheffer, it may be recalled, was a 1998 decision in which the Supreme Court upheld a military tribunal's ban on polygraph testimony against constitutional challenge. How far Justice Stevens's dissent "confirm[s] the breadth and continuing viability of Barefoot" is a judgment we leave to the reader.

5th Circuit Upholds Exclusion of Testimony Linking Benzene to Hodgkins

Now finally finished with our all-consuming brief-writing campaign, we return to the blogosphere just in time to note that the Fifth Circuit issued a published opinion yesterday, upholding the exclusion of testimony from a physician/epidemiologist who linked benzene exposures to Hodgkins lymphoma. After what looks to have been unusually searching scrutiny of the epidemiological studies on which the expert relied, the district court found them jointly and severally insufficient to support generic causation. The Fifth Circuit panel upheld that ruling and appears (abuse-of-discretion standard or no) to have agreed with it. This opinion will likely come to enjoy a prominent place in the the defense bar's string cites, especially in benzene cases. See Knight v. Kirby Inland Marine, Inc., No. 06-60134 (5th Cir. Mar. 19, 2007) (Davis, Stewart, & Crone, JJ.).