Tag Archives: expert witness

SCOTUS Writes Fed.R.Evid. 704(b) Out of the Books – Update for June 21, 2024

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

DID EXPERTS JUST GET A LOT MORE USEFUL?

expertB240621It is a fundamental principle of common law that witnesses can only testify about what they saw, heard or felt. They are not allowed to expound any deductions based on the facts. That being the case, expert testimony—testimony given by someone with knowledge or experience in a particular field or discipline that renders an opinion based on the facts—ought to be an abomination.

But it’s a necessary abomination. So necessary that experts, once qualified as such by the presiding judge, can give opinions on just about anything, even the ultimate issues in the case (such as “the defendant was negligent,” “calling some a ‘scumbag’ is not defamatory,” or “the substance the defendant possessed was fentanyl”).

But after John Hinckley, the man who shot President Reagan in order to impress actress Jodie Foster, was found not guilty by reason of insanity after a battle of experts arguing that he was or was not nuts, Federal Rule of Evidence 704(b) was adopted to hold that while experts could issue all other ultimate-issue opinions from the stand, “[i]n a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense.”

Yesterday, the Supreme Court crafted an end-around to 704(b), a decision that may reverberate to the benefit of criminal defendants as much as it benefitted the government in the case before the Justices.

endrun240621Adriana Diaz was arrested at the United States-Mexico border after the door frames of the car she was driving were found to be packed with illegal drugs hidden in the door frames. At trial, Adriana argued that the car was not hers, that she was driving it as a favor, and that she had no idea of what was under the door panels.

A government expert testified that “most” drug mules knew what they were carrying because drug traffickers do not typically entrust drugs to an unknowing person. The jury, apparently concluding that Adriana was like “most” drug mules, convicted her.

Adriana argued that the government expert had violated 704(b) because he had testified to her mental state. However, in a 6-3 ruling, SCOTUS upheld the expert testimony in a fine case of hair-splitting: “An expert’s conclusion that ‘most people’ in a group have a particular mental state is not an opinion about ‘the defendant’ and thus does not violate Rule 704(b),” Justice Clarence Thomas wrote for the majority.

"100% Expert" Cachet (bleu)Justice Ketanji Brown Jackson, the most experienced Justice on the court in criminal defense work, wrote in a concurring opinion that “the type of mental-state evidence that Rule 704(b) permits can prove essential not only for prosecutors, but for defendants as well.” She could be right, especially where novel defenses–such as diminished capacity arguments (think ‘battered women’ defenses)–are used.

However, in a vigorous dissent, Justice Neil Gorsuch (joined by Justices Sonia Sotomayor and Elana Kagan), complained that the decision let

[t]he government come[] away with a powerful new tool in its pocket. Prosecutors can now put an expert on the stand — someone who apparently has the convenient ability to read minds — and let him hold forth on what “most” people like the defendant think when they commit a legally proscribed act. Then, the government need do no more than urge the jury to find that the defendant is like “most” people and convict. What authority exists for allowing that kind of charade in federal criminal trials is anybody’s guess, but certainly it cannot be found in Rule 704.

Diaz v. United States, Case No. 23-14, 2024 U.S. LEXIS 2709 (June 20, 2024)

Courthouse New Service, SCOTUS won’t restrict expert testimony in drug trafficking case (June 20, 2024)

Sentencing Law and Policy, Supreme Court, by 6-3 vote, rejects claim that mental state expert testimony violated FRE 704(b) (June 20, 2024)

– Thomas L. Root

“In My Expert Opinion, You’re Guilty” – Update for March 25, 2024

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

SUPREMES SPLIT ON GOVERNMENT EVIDENTIARY CAT-SKINNING

catskinning240325The Supreme Court last Tuesday appeared divided over a case arguing that letting a DEA agent testify that most drug mules knew they were carrying drugs across the border violated the Federal Rules of Evidence and led to an unfair conviction.

Delilah Diaz was caught at the Mexican border with over $350,000 in meth hidden in the door panels of the car she was driving. She claimed not to know the drugs had been hidden in the car. A DEA agent expert witness testified, however, that drug mule drivers as a class typically know they are transporting drugs.

Federal Rule of Evidence 704 generally states that an expert in a criminal case may not give an opinion on the defendant’s criminal intent, or mens rea. Yolanda argued that the expert’s “class” testimony was a back-door introduction of evidence not allowed by Rule 704.

While some justices appeared to favor the government’s position of allowing such testimony, others appeared to favor reining it in.

expert160905The problem for the justices during arguments Tuesday was where to draw the line on ambiguous evidentiary rules, as evidence prohibited under one rule might be permissible under another. Circuits are split on whether testimony about a class of defendants is the “functional equivalent” of testimony about the defendant being tried for purposes of Rule 704 or whether “class” testimony is permissible evidence of how drug cartels usually operate. “There’s always a way to skin the evidentiary cat,” said Justice Neil Gorsuch, who appeared firmly on the side advocating for a more limited rule.

Justice Clarence Thomas pressed the government, saying that when you testify about the probabilities that someone knows she is carrying drugs, “you are in effect talking about the defendant, that you could only be concerned about the conduct of the defendant.”

Justice Samuel Alito suggested that other evidentiary rules might knock out such evidence, like Rule 703, which allows a court to exclude otherwise permissible evidence if it is more prejudicial to the defendant than helpful to the jury.

game180103Both sides have “line-drawing problems,” Justice Elena Kagan said. Even if the Court ruled for the petitioner, “all the expert has to do is tweak the way he says something and the exact same testimony can come in”, she said. “It just seems at that point a kind of game.”

Gorsuch observed that if the government is allowed to introduce such “class” testimony, a defendant will, too. “What’s going to be good for the goose here is going to be good for the gander,” he suggested.

Diaz v. United States, Case No 23-14 (Supreme Ct, argued March 19, 2024)

Reuters, US Supreme Court appears split over appeal by convicted border drug ‘mule’ (March 19, 2024)

Sentencing Law and Policy, A little interesting coverage of an interesting SCOTUS argument on drug mule case experts (March 20, 2024)

Bloomberg Law, Justices Search for Sweet Spot on Testimony on Criminal Mind (March 19, 2024)
<><>

– Thomas L. Root

Supreme Court Teeing Up Some Significant Criminal Law Decisions – Update for January 15, 2024

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

SUPREMES’ JANUARY LOOKING CONSEQUENTIAL FOR CRIM LAW HOLDINGS

alicewordsmeanhumpty231122The first argument of the current Supreme Court term last October, Pulsifer v. United States, ought to be yielding an opinion in the next few weeks. The First Step Actsafety valve” case – that considers whether “and” means “and” or simply “or” – has increased importance for a lot of people who might otherwise qualify for the zero-point sentence reduction under the new USSG § 4C1.1.

A condition of § 4C1.1 is that “the defendant did not receive an adjustment under § 3B1.1 (Aggravating Role) and was not engaged in a continuing criminal enterprise…” So does that mean the defendant is qualified unless he has a § 3B1.1 adjustment AND a CCE conviction? Or is he disqualified if he has a § 3B1.1 OR a CCE violation? There are a lot of § 3B1.1 enhancements out there, but not nearly as many CCE convictions.

Even without the § 4C1.1 angle, Ohio State University law professor Doug Berman said last week in his Sentencing Law and Policy blog that Pulsifer may “prove to be the most interesting and impactful sentencing case from the current SCOTUS Term.”

Meanwhile, other interesting Supreme Court developments are happening largely unseen. Last November, the Court granted review in Erlinger v. United States, a case which asks whether the Constitution requires that a jury (instead of the judge) find beyond a reasonable doubt that an Armed Career Criminal Act defendant’s three predicate offenses were “committed on occasions different from one another.”

May you rest in peace, Betty... stealing America's hearts did not make you ACCA-qualified.
May you rest in peace, Betty… stealing America’s hearts did not make you ACCA-qualified.

(The ACCA, for those who got here late, is a sentencing enhancement contained in 18 USC § 924(e)(2) which provides that the punishment for a felon-in-possession conviction under 18 USC § 922(g) begins with a mandatory 15 years and goes to life imprisonment if the defendant has three prior convictions for serious drug offenses or crimes of violence committed on occasions different from one another. Erlinger explores the collision of those elements with the 6th Amendment: can a judge find the ACCA applies to a felon-in-possession by a simple preponderance of the evidence, or must those elements be found by a jury beyond a reasonable doubt?)

The curious development in Erlinger is that both the Solicitor General and defendant Erlinger agree that after the Supreme Court adopted the current “standard for determining whether offenses occurred on different occasions [set forth] in Wooden v. United States” in 2022, the issue of whether the predicates were “committed on occasions different from one another” implicates a defendant’s Apprendi v. New Jersey rights to have facts that raise the statutory minimum and maximum must be decided beyond a reasonable doubt by a jury.

When both parties in a Supreme Court case agree on how the case should come out, the Court appoints a lawyer to argue the other side. SCOTUS has appointed one in this case, who will file a brief next month opposing the briefs Erlinger and DOJ have already filed.

Erlinger is important not only for the ACCA issue presented but because some on the Court have argued that where an enhanced penalty (like 21 USC § 851 drug enhancements) requires a showing of a prior conviction, due process requires that the fact of the conviction be decided by a jury. The Supremes ruled the other way in the 1998 Almendarez-Torres v. United States decision, a holding that was unaffected by the subsequent Apprendi ruling. Justice Clarence Thomas especially has criticized Almendarez-Torres, believing it is wrong, and the fact of prior convictions should be a jury question. Erlinger may give a holding that is expansive enough to address the Almendarez-Torres holding.

expert160905Last week, the Court heard argument in Smith v. Arizona, addressing whether a defendant’s 6th Amendment right to confront witnesses means that the lab expert who prepared a report on drug purity must be put on the stand to verify the report. Many courts currently permit another expert who did not conduct the test to testify as to drug purity based on the report’s findings.

The  Court seemed sympathetic to Jason Smith, an Arizona prisoner who contends that the expert’s testimony – based on a drug purity test performed by someone who wasn’t present to testify – contravened the 6th Amendment’s confrontation clause, which gives defendants in criminal cases the right to “be confronted with the witnesses against him.”

Finally, the Court will hear the argument tomorrow in Loper Bright Enterprises v. Raimondo, the case that could end Chevron deference – the notion that courts must defer to agency interpretation of statutes and rules. A change in Chevron deference could affect the Sentencing Guidelines, court deference to agency interpretation of gun laws, and court deference to BOP policies, among other changes.

Sentencing Law and Policy, Top side SCOTUS brief now files in Erlinger v. US, the case considering Apprendi’s application to part of ACCA (January 9, 2024)

Almendarez-Torres v. United States, 523 U.S. 224 (1998)

Erlinger v. United States, Case No. 23-370 (S.Ct., awaiting decision)

Smith v. Arizona, Case No. 22-899 (S.Ct., argued January 10, 2024)

SCOTUSBlog, Court appears to favor Arizona man’s confrontation clause claim (January 10, 2024)

Loper Bright Enterprises v. Raimondo, Case No. 22-451 (S.Ct., awaiting argument)

– Thomas L. Root

Momentum Against Stash House Stings Growing? – Update for December 19, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

LISAStatHeader2small
ONE-OF-A-KIND HEARING HELD IN CHICAGO ON STASH HOUSE RACIAL PROFILING

stash171120The battle over whether stash house stings – where federal agents convince unwitting defendants to rob nonexistent stash houses of nonexistent drugs, all so they can arrest them – are designed to target minorities came to a head last week in an unprecedented three-day hearing in Chicago before a panel of nine U.S. district judges.

Each of the judges on the panel is presiding over one or more of 12 separate stash-house cases, with the liberty of 43 defendants at stake. The judges chose to hear expert testimony simultaneously after lawyers for all 43 defendants moved for the stash-house charges to be tossed on grounds of racial bias.

The testimony focused on dueling experts who reached starkly different conclusions about the racial breakdown of targets in the stash house cases. How they decide — possibly in a single ruling — is expected to influence how courts nationwide deal with similar claims.

expert160905An expert hired by the Federal Criminal Justice Clinic at the University of Chicago Law School — which is leading the effort to have the cases dismissed — concluded that disparity between minority and white defendants in the stings was so large that there was “a zero percent likelihood” it happened by chance. Defense expert Jeffrey Fagan said that out of 94 stash-house defendants in the Chicago area during an 8-year period, 74 were black, 12 were Hispanic and just eight were white. If the ATF criteria for picking likely defendants were racially neutral, he said, far more whites would have been snared.

Government lawyers have essentially argued that the numbers are unsurprising, because people in wealthier white areas are unlikely to be attracted to such a violent, illegal enterprise. In other words, the ATF goes where the business is good, and the business is good on Chicago’s South and West Sides. The government’s expert testified that Fagan wrong to assume that hundreds of thousands of people in eight counties in and around Chicago would be willing to entertain the idea of arming themselves and storming a stash-house.

Bootstrapping your way to higher sentences...
Bootstrapping your way to higher sentences…

Stash house stings have been criticized on other grounds, several times in this blog – here, here, here, here and here, for example – because agents can and usually do arbitrarily increase the sentences meted out by increasing the amount of non-existent drugs they tell defendants are in the non-existent stash houses. After all, why conspire to steal one kilo of smack when you can conspire to steal 50? Of course, the sentencing guidelines – not to mention the drug distribution statute itself – dictate much higher sentences according to the amount of drugs with which the conspiracy is involved, whether those drugs are physical or virtual.

The groundbreaking hearing is being closely watched in federal districts across the country. How it plays out could have ramifications far beyond the 43 Chicago defendants who are seeking to have their charges thrown out. The judges are expected to issue separate rulings at a later date, although some lawyers think there could be joint opinions issued by several judges if any are in agreement.

Chicago Tribune, Judges hear arguments on ATF’s alleged racial bias as landmark hearing opens (Dec. 14, 2017)

Fox News, Dueling statistics used at hearing on racial bias in stings (Dec. 15, 2017)

– Thomas L. Root

LISAStatHeader2small