MARCUS, Circuit Judge:
Richard Junior Frazier appeals his conviction for kidnapping. He claims that the district court abused its discretion by excluding certain expert testimony of a forensic investigator, while allowing the government to present expert evidence on the same issue. After thorough review of the record, we conclude that the district court's evidentiary rulings were neither an abuse of discretion, nor "manifestly erroneous." Gen. Elec. Co. v. Joiner, 522 U.S. 136, 142, 118 S.Ct. 512, 517, 139 L.Ed.2d 508 (1997) (citation omitted). More generally, we reaffirm the basic principle that an appellate court must afford the district court's gatekeeping determinations "the deference that is the hallmark of abuse-of-discretion review." Id. at 143, 118 S.Ct. at 517. Accordingly, we affirm.
The defendant, Richard Junior Frazier, was charged on December 6, 2000, by a grand jury sitting in the Northern District of Georgia in a one-count indictment with kidnapping in violation of 18 U.S.C. § 1201(a)(1).
The relevant facts in this sad case are these. At some time after eight o'clock on the evening of October 31, 2000, an eighteen-year-old student ("the victim") stopped at a Wal-Mart store in Cornelia, Georgia to check the prices of Halloween candy. According to the victim's account, she was abducted by the defendant after leaving the Wal-Mart. She walked to her car and unlocked the door, when she was confronted by the defendant, Frazier, who was carrying a knife in his right hand pointed at her. He asked the victim: "Will you take me where I want to go?" R7 at 149. Fearing for her life, the victim complied and at Frazier's demand sat in the driver's seat. Frazier entered the back seat of the vehicle, sat directly behind the victim, and directed her to drive out of the parking lot.
Frazier initially told the victim that he wanted to visit his son in White County, Georgia, but eventually directed her off the paved road and onto a dirt road leading to a secluded, wooded area. After they reached this deserted location, Frazier instructed the victim to turn the engine off, moved into the front passenger seat, positioned the knife in his right hand, and ordered the victim to remove her pants and underpants. She disrobed. The defendant then removed his own clothing and sexually assaulted her at knifepoint, raping her repeatedly and variously in a crime of unspeakable brutality, in the front of the vehicle and in the back seat of her car. According to the victim, the defendant apologized for not being able to ejaculate because he was drunk.
After the sexual assaults were completed, the defendant dressed, took control of the car, and drove north on U.S. Highway 441 toward North Carolina. Frazier stopped twice, first at a Citgo convenience store where he bought gasoline, and then at a Circle-K store where he bought cigarettes. At both stops, Frazier made the
In the meantime, the victim's fiancé and family members became alarmed over her absence. Her fiancé, Anthony Defoor, expected to meet her after she visited the Wal-Mart, and by eleven o'clock, had become very concerned. He began searching for her and contacted her parents. The victim's mother called 911 to report her missing, and her father, Larry Kimsey ("Kimsey"), drove off in search of his daughter. Kimsey spotted his daughter's vehicle, followed it for several miles, and pulled up alongside it, noticing that his daughter was in the front passenger seat and a stranger was driving the car. He attempted unsuccessfully to flag down his daughter's car by driving alongside the vehicle, flashing his brake lights, and rolling down his windows and motioning with his arm for the car to stop. Kimsey continued to chase the vehicle, mile after mile, at speeds up to 80 miles per hour. Indeed, when Kimsey pulled alongside his daughter's car, the defendant swerved and cut him off. Eventually, although he was unable to stop the car, Kimsey was able to attract the attention of a passing deputy sheriff by repeatedly flashing his brake lights.
At this point, the officer driving a marked police car made a u-turn and began chasing the two vehicles. The deputy activated his flashing blue lights in an attempt to stop the victim's car, but Frazier did not pull over. The deputy called for back-up and additional officers joined the chase, pursuing the victim's car with their lights and sirens activated. Still, Frazier did not stop; instead he accelerated the vehicle, leading the police on a chase at speeds of up to 100 miles per hour for many miles, passing stop signs, repeatedly crossing the center line, and running red lights without slowing or stopping.
The police immediately removed both Frazier and the victim from the car. After being asked why the vehicle was fleeing the police, the victim replied that the defendant had kidnapped her from the Wal-Mart at knifepoint. When Frazier was searched immediately following his arrest, the officers discovered two knives on his person. One of the knives was found in his right hip pocket, locked in the open position with a partially serrated blade.
The victim was transported to a local hospital where, because she claimed to
When the victim testified at trial, she gave a detailed account of these events that was consistent with those recounted by her father, and by three of the police involved in the pursuit of Frazier. On cross-examination, Frazier vigorously challenged the victim's account. Frazier elicited from the victim that at some point after the night of her abduction, she retraced the route she and Frazier had taken with law enforcement officers, and initially was unable to locate the dirt road on which the sexual assaults had taken place. Frazier's counsel questioned the victim regarding the sexual assaults, asking her to recount, in detail, nearly a dozen sexual acts that occurred in the front of the vehicle, as well as in the back seat. Frazier elicited the fact that the victim had not mentioned that she had been sexually assaulted to the first doctor, a male, who examined her at the hospital. The victim also conceded that she had lit a cigarette for the defendant while they were in the car together.
On the evening after his arrest Frazier was questioned, and, after receiving Miranda
After he accepted the offer, according to Frazier, they began to drive around; when Frazier mentioned an ex-girlfriend in Silva, North Carolina, whom he wanted to visit, the victim offered to drive him there and he accepted. The defendant also told the FBI that the victim asked him to drive the car, even though he had consumed a large amount of alcohol and had told her that he did not have a valid driver's license. Finally, Frazier said that he refused to pull over when chased by the victim's father and the police only because the victim told him not to stop. According to Frazier, the victim told him not to stop the car because if he did, her father "would beat his ass." Id. at 217. There is no evidence that Frazier acknowledged to the FBI that he had swerved to hit or cut off either Kimsey or any of the police officers chasing him. Frazier denied that any sexual contact had occurred.
Prior to trial, Frazier gave notice to the government that he intended to offer the expert testimony of Robert Tressel, a forensic investigator and former police officer. In essence, Tressel was prepared to testify that none of Frazier's hairs or bodily fluids were recovered from the victim, her clothes or her car; that "it would be expected that some transfer of either hairs or seminal fluid would occur in this case," Def. Ex. 2; and that "there is no forensic evidence to substantiate the claim of rape in this case." Id. The object of this testimony and, indeed, the basic thrust of Frazier's defense, was that the victim fabricated her account of kidnapping and rape in order to avoid being punished by her parents for violating her curfew. To establish this defense, Frazier hoped to undermine the credibility of the victim's account of abduction and rape by, among other things, suggesting that she had lied about the sexual assaults.
The Government timely moved in limine to exclude Tressel's testimony under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and the district court conducted a thorough Daubert hearing before trial. At the hearing, Tressel testified that he had been a police officer in Cobb County, Georgia, for more than a decade. For ten years, Tressel worked as an investigator in Cobb County's Crimes Against Persons Unit, which investigated homicides, rapes, other sexual assaults, and armed robberies. Tressel said that during his tenure in Cobb County he worked on thousands of cases, including between 150 and 250 sexual assault cases. In addition, he worked for thirteen years in the Cobb County Medical Examiner's Office.
At the time he testified, Tressel was self-employed as a consultant in the area of forensic investigations. Tressel recounted the forensic training he had received, which included training in crime scene processing for his work with the Cobb County Police Department; additional education at the University of Georgia in crime scene analysis and processing; and "training at the University of Virginia through Quantico, the FBI laboratory, on crime scene processing." R5 at 12. Tressel also stated that he had "been involved in criminalistic studies that were put on by the FBI at various law enforcement academies" in the state of Georgia, id., and explained that "the chief of police magazine that has sections on it where you can conduct kind of an at-home study program where you go through and you have to answer certain questions and everything. I have been involved in that." Id. at 13. Tressel said that he had taught classes in crime scene investigation at the North Central Law Enforcement Academy and at the Northwest Georgia Law Enforcement Academy, and had qualified as an expert in various state and federal courts.
After presenting his general qualifications, Tressel opined that, based on all of the information that was available to him, it appeared that the forensic investigation of the alleged sexual assault had been performed properly and thoroughly. Tressel testified that he saw "no forensic evidence to substantiate the claim of rape in this case." R5 at 25. Tressel offered the view that, given the allegations of sexual assault made by the victim, "[t]here should have been some transfer of either hairs, fibers or fluids between the victims [sic] in this case." Id. at 27. Or, as he put it in his expert report, "[w]ith the amount of sexual activity described ... it would be expected that some transfer of either hairs or seminal fluid would occur." Def. Ex. 2 at 2. Tressel also opined that, after reviewing the report of the victim's medical examination, he concluded that the reported
On cross-examination, the government sought to elicit from Tressel the foundation for his opinions. Tressel acknowledged, first, that as for his medical opinions, he had no training in performing medical examinations generally, or, specifically, in performing pelvic examinations of female sexual assault victims. Tressel conceded that he had no education, training or experience as a doctor, and that he was not a physician.
The government also questioned Tressel at some length concerning the bases for his opinions that hair was the most common form of forensic evidence found in rape investigations, and that "it would be expected that some transfer of either hairs or seminal fluid would occur." Tressel said that he relied on his experience and a text entitled Practical Aspects of Rape Investigation, by Robert Hazelwood and Ann Burgess, for the opinion that the transfer of hair is the form of forensic evidence most commonly found in rape investigations.
Tressel also observed that "I don't think anybody has ever studied the rates of transfer" of hair evidence, and clarified that he was not familiar with any scientific literature on the rate of transfer of hair in sexual assault cases. R5 at 37. Tressel again cited his experience (albeit only as a general matter) and the Hazelwood and Burgess text as the foundation for his opinion that seminal fluid was frequently found in sexual assault cases.
The government then explained the reasons underlying its motion to exclude Tressel's opinions in these terms:
Id. at 44-46. The government argued that Tressel provided no foundation or support, either from the relevant literature or from his own experience, for his specific opinion that the recovery of hair or fluid evidence "would be expected" in a case like this one. The government also objected to Tressel's proffered medical opinions based on the lack of any medical training and the fact that he had not personally examined the victim.
The district court ruled that Tressel was qualified to testify and could explain the standard procedures employed in investigating the crime scene of a sexual assault, that Tressel could recount that no hair or fluid matching Frazier's was found on the scene, and that "the forensic evidence most commonly found during the analysis of a rape investigation is the transfer of hairs." Def. Ex. 2 at 2.
The district court explained its decision in these terms:
R5 at 68-70.
The trial judge also excluded Tressel's medical opinions because he was not qualified as a medical expert by background, training or experience. The court explained that it would allow a medical doctor to testify on the issue, but that Tressel's experience and background were simply inadequate.
At trial, Frazier chose not to call Tressel at all, but did clearly establish that no seminal fluid or hair matching Frazier's was recovered during the investigation by calling two FBI laboratory technicians who had worked on the investigation. The defense first called Karen Lanning, an FBI hair and fiber examiner, who testified that she analyzed hair, clothing, and automobile upholstery collected during the Frazier investigation, and that none of the hairs recovered matched Frazier's. On cross-examination, the government asked Lanning how often, in her experience, she found a transfer of hairs. The defense objected, observing that Lanning had been called only as a fact witness, and not as a general expert. The trial judge overruled the objection, after which Lanning testified that she found hair transfers in 10% of the cases she worked on, and found no hair 90% of the time. When the government attempted to question Lanning further about the significance of finding no hair in the case, the defense renewed its objection that Lanning had not been called as an expert. The district court agreed that she had been called as a fact witness and could not testify on cross-examination as to studies done on hair transfers, sustaining the objection. The government observed that it would call her on rebuttal.
The defense also called Anthony Onorato, a forensic DNA examiner in the FBI's laboratory. Onorato explained that he had received evidence recovered in the Frazier investigation and tested it for the presence of bodily fluids, including blood and seminal fluid. Onorato was unable to identify any semen, nor was he able to identify any blood. On cross-examination, the government sought to question Onorato as to the frequency of finding evidence of semen. Frazier again objected, arguing that the government was seeking to use Onorato as an expert witness. The trial judge stated, "well, that's a factual determination, I will allow that." R9 at 359. Nevertheless, the government ceased this line of cross-examination, observing that it would call Onorato on rebuttal "and do it all at once." Id.
After the defense rested, the government announced that it would call Lanning and Onorato as rebuttal witnesses. Frazier objected, arguing only that the government had failed to give notice of its intent to use Lanning or Onorato as expert witnesses, in violation of Rule 16 of the Federal Rules of Criminal Procedure. The defense suggested that, while the text of Rule 16 referred only to disclosure requirements for the government's case-in-chief, calling these expert rebuttal witnesses without notice violated the spirit of the Rule. Frazier suggested, further, that it would be unfair to allow the government to call these experts to opine on the significance of the absence of hair or fluid evidence, since Frazier's expert — Tressel—had been precluded from opining on the same subject.
On rebuttal, Lanning recited her experience and qualifications, stating that she was a member of the Midwestern Association of Forensic Scientists and had testified as an expert forensic scientist more than one hundred times in state and federal courts across the country. Lanning had worked for six years in the Trace Evidence Unit of the FBI laboratory in Washington, D.C., after previously working for just under six years with the Kansas Bureau of Investigation. Lanning stated that she had never been rejected as an expert by any court, and the government proffered her as an "expert in the area of hair analysis" and forensic investigation, R9 at 369, without objection.
Lanning said that she was familiar with various scientific studies of the rate of hair transfer during sexual contact. She was familiar with a 1990 study by Mary Jacque Mann entitled "Hair Transfers in Sexual Assault" from the Journal of Forensic Sciences which found no pubic hair transfers to the victim's underwear in 97% of the cases involved in the study; no pubic hair transfers in combings of the victim's pubic hair in 96% of the cases; no head hair transfers in the victim's underwear in 96% of the cases; no pubic hair transfers in the victim's outer wear in 98.5% of the cases; and no head hair transfers in the victim's outer wear in 97% of the cases. Lanning also said that she was familiar with a 1998 study in the same journal, entitled "Frequency of Pubic Hair Transfer During Sexual Intercourse," which found no transfer of pubic hairs to the female partners in the study in 82.7% of the cases, and concluded that a failure to transfer pubic hair did not indicate that no intercourse had taken place. Consistent with the latter study, Lanning opined that the failure to recover any of Frazier's hair did not necessarily mean that no sexual contact had taken place between Frazier and the victim.
On cross-examination, Lanning observed that if sexual contact occurred within an enclosed area, as opposed to an open space, it would be more likely that transferred hairs would remain in that area. She also said that the likelihood of a hair transfer might increase as the duration of the sexual encounter and range of activities increased. Lanning also clarified her earlier testimony that she found hair transfers in 10% of the cases she worked on, specifying that hair was only recovered in between 2% and 5% of the rape cases she worked on.
The government also called Onorato on rebuttal, and elicited that Onorato was a member of the American Academy of Forensic Sciences, the Canadian Society of Forensic Science, and the American Society of Clinical Pathologists. Onorato stated that he had testified as an expert in forensic serological analysis in approximately 15 courts, and was an expert in the search for the presence of semen on evidence. Onorato testified that he had a bachelor's degree in biology and master's degrees in clinical immunology and microbiology as well as in forensic science. Onorato worked for two years in the crime lab of the Pennsylvania State Police, and for approximately two years in the medical center of the University of Alabama at Birmingham, before spending approximately five years in the DNA Analysis Unit of the FBI. The government proffered
On cross-examination, Onorato explained that in sexual assault cases where there were multiple erections and penetration over a period of time, the chances of recovering a chemical emitted by the prostate gland, P30, would be increased. Onorato observed that the likelihood of finding bodily fluids in the evidence he examined would increase with the number of sexual encounters.
Following Frazier's trial, on June 20, 2001, the jury rejected his defense and returned a verdict of guilty. Soon thereafter, Frazier was sentenced to a term of life imprisonment without parole, pursuant to the federal "three-strikes" statute, 18 U.S.C. § 3559(c).
A divided panel of this Court reversed Frazier's conviction, holding that the district court abused its discretion in limiting the testimony of Robert Tressel. The majority found that the district court erroneously required scientific evidence as a prerequisite to expert status, and that by excluding portions of Tressel's testimony it violated the defendant's substantial rights because the heart of the defense turned on undermining the victim's credibility. See United States v. Frazier, 322 F.3d 1262 (11th Cir.2003). Following the issuance of the panel's opinion, on September 12, 2003, this Court entered an order vacating the panel opinion and directing that the case be heard en banc. See United States v. Frazier, 344 F.3d 1293 (11th Cir.2003) (en banc).
We review for abuse of discretion the district court's decisions regarding the admissibility of expert testimony and the reliability of an expert opinion. Joiner, 522 U.S. at 141-43, 118 S.Ct. at 517; see also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 142, 119 S.Ct. 1167, 1171, 143 L.Ed.2d 238 (1999) (explaining that, under Joiner, "courts of appeals are to apply `abuse of discretion.' standard when reviewing district court's reliability determination"). Indeed, the "deference that is the hallmark of abuse-of-discretion review," Joiner, 522 U.S. at 143, 118 S.Ct. at 517, requires that we not reverse an evidentiary decision of a district court "`unless the ruling is manifestly erroneous,'" id. at 142, 118 S.Ct. at 517 (quoting Spring Co. v. Edgar, 99 U.S. 645, 658, 25 L.Ed. 487 (1878)). Thus, it is by now axiomatic that a district court enjoys "considerable leeway" in making these determinations.
This Court has uniformly applied the deferential abuse-of-discretion review that Joiner mandates. See Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1340 (11th Cir.2003) (trial court's exclusion of expert testimony reviewed for abuse of discretion; "this standard of review requires that we defer to the district court's evidentiary ruling unless that ruling is manifestly erroneous" (internal quotation marks and citations omitted)); McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1257 (11th Cir.2002) ("[O]ur review of evidentiary rulings by trial courts on the admission of expert testimony is `very limited.'" (quoting Maiz v. Virani, 253 F.3d 641, 662 (11th Cir.2001))); Michigan Millers Mut. Ins. Corp. v. Benfield, 140 F.3d 915, 921 (11th Cir.1998) ("It is very much a matter of discretion with the trial court whether to permit the introduction of [expert] evidence, and we will not reverse the decision of the trial court regarding the exclusion or admission of such evidence unless the trial court's decision is `manifestly erroneous.'"); see also Toole v. Baxter Healthcare Corp., 235 F.3d 1307, 1312 (11th Cir.2000) ("We review a trial court's evidentiary rulings on the admission of expert witness testimony for abuse of discretion."); United States v. Paul, 175 F.3d 906, 909 (11th Cir.1999) ("This court reviews the district court's decision to exclude expert testimony under Federal Rule of Evidence 702 for abuse of discretion."); United States v. Gilliard, 133 F.3d 809, 812 (11th Cir.1998) ("A district court's decision to admit or exclude expert testimony under Rule 702 is reviewed for abuse of discretion.").
The application of an abuse-of-discretion review recognizes the range of possible conclusions the trial judge may reach.
Rasbury v. I.R.S. (In re Rasbury), 24 F.3d 159, 168 (11th Cir.1994) (quoting United States v. Kelly, 888 F.2d 732, 745 (11th Cir.1989) (citing Kern v. TXO Prod. Corp., 738 F.2d 968, 970 (8th Cir.1984))); see also Kern, 738 F.2d at 971 ("The very concept of discretion presupposes a zone of choice within which the trial courts may go either way."). Thus, when employing an abuse-of-discretion standard, we must affirm unless we find that the district court has made a clear error of judgment, or has applied the wrong legal standard. Maiz, 253 F.3d at 662.
The starting point for our analysis is Rule 702 of the Federal Rules of Evidence, which controls the admission of expert testimony. It provides:
The importance of Daubert's gatekeeping requirement cannot be overstated. As the Supreme Court framed it in Kumho Tire: "[T]he objective of that requirement is to ensure the reliability and relevancy of expert testimony. It is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." 526 U.S. at 152, 119 S.Ct. at 1176. The district court's role is especially significant since the expert's opinion "can be both powerful and quite misleading because of the difficulty in evaluating it." Daubert, 509 U.S. at 595, 113 S.Ct. at 2798 (quoting Jack B. Weinstein, Rule 702 of the Federal Rules of Evidence is Sound; It Should Not Be Amended, 138 F.R.D. 631, 632 (1991) ("Weinstein")). Indeed, no other kind of witness is free to opine about a complicated matter without any firsthand knowledge of the facts in the case, and based upon otherwise inadmissible hearsay if the facts or data are "of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject." Fed.R.Evid. 703.
Thus, it comes as no surprise that in determining the admissibility of expert testimony under Rule 702, we engage in a rigorous three-part inquiry. Trial courts must consider whether:
City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 562 (11th Cir.1998) (citing Daubert, 509 U.S. at 589, 113 S.Ct. at 2794). While there is inevitably some overlap among the basic requirements— qualification, reliability, and helpfulness— they remain distinct concepts and the courts must take care not to conflate them. Quiet Tech., 326 F.3d at 1341.
The proponent of expert testimony always bears "the burden to show that his expert is `qualified to testify competently regarding the matters he intend[ed] to address; [ ] the methodology by which the expert reach[ed] his conclusions is sufficiently reliable; and [ ] the testimony assists the trier of fact.'" McCorvey, 298 F.3d 1253, 1257 (alterations in original) (quoting Maiz, 253 F.3d at 664). The burden of establishing qualification, reliability, and helpfulness rests on the proponent of the expert opinion, whether the proponent is the plaintiff or the defendant in a civil suit, or the government or the accused in a criminal case.
Turning first to the qualification of the expert, we observe that experts may be qualified in various ways. While scientific training or education may provide possible means to qualify, experience in a field
Of course, the unremarkable observation that an expert may be qualified by experience does not mean that experience, standing alone, is a sufficient foundation rendering reliable any conceivable opinion the expert may express. As we observed in Quiet Technology, "while an expert's overwhelming qualifications may bear on the reliability of his proffered testimony, they are by no means a guarantor of reliability.... [O]ur caselaw plainly establishes that one may be considered an expert but still offer unreliable testimony." 326 F.3d at 1341-42. Quite simply, under Rule 702, the reliability criterion remains a discrete, independent, and important requirement for admissibility.
Indeed, the Committee Note to the 2000 Amendments of Rule 702 expressly says that, "[i]f the witness is relying solely or primarily on experience, then the witness must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts. The trial court's gatekeeping function requires more than simply `taking the expert's word for it.'" Fed.R.Evid. 702 advisory committee's note (2000 amends.) (emphasis added); see also Daubert v. Merrell Dow Pharmaceuticals, Inc. (on remand), 43 F.3d 1311, 1316 (9th Cir.1995) (observing that the gatekeeping role requires a district court to make a reliability inquiry, and that "the expert's bald assurance of validity is not enough"). If admissibility could be established merely by the ipse dixit of an admittedly qualified expert, the reliability prong would be, for all practical purposes, subsumed by the qualification prong.
Thus, it remains a basic foundation for admissibility that "[p]roposed [expert] testimony must be supported by appropriate validation—i.e., `good grounds,' based on what is known." Daubert, 509 U.S. at 590, 113 S.Ct. at 2795. As the Supreme Court put it, "the Rules of Evidence—especially Rule 702—... assign to the trial judge the task of ensuring that an expert's testimony ... rests on a reliable foundation." Id. at 597, 113 S.Ct. at 2799.
When evaluating the reliability of scientific
Quiet Tech., 326 F.3d at 1341 (citing McCorvey, 298 F.3d at 1256 (citing Daubert, 509 U.S. at 593-94, 113 S.Ct. at 2796-97)). These factors are illustrative, not exhaustive; not all of them will apply in every case, and in some cases other factors will be equally important in evaluating the reliability of proffered expert opinion. See Kumho Tire, 526 U.S. at 150-152, 119 S.Ct. at 1175-76; Fed.R.Evid. 702 advisory committee's note (2000 amends.); see also Heller v. Shaw Indus., Inc., 167 F.3d 146, 155 (3d Cir.1999) ("[N]ot only must each stage of the expert's testimony be reliable, but each stage must be evaluated practically and flexibly without bright-line exclusionary (or inclusionary) rules.").
The same criteria that are used to assess the reliability of a scientific opinion may be used to evaluate the reliability of non-scientific, experience-based testimony. Kumho Tire, 526 U.S. at 152, 119 S.Ct. at 1176; see also Clark v. Takata Corp., 192 F.3d 750, 758 (7th Cir.1999) ("In determining whether an expert's testimony is reliable, the Daubert factors are applicable in cases where an expert eschews reliance on any rigorous methodology and instead purports to base his opinion merely on `experience' or `training.'"). As the Supreme Court explained in Kumho Tire:
526 U.S. at 151, 119 S.Ct. at 1176. Sometimes the specific Daubert factors will aid in determining reliability; sometimes other questions may be more useful. As a result, "the trial judge must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable." Id. at 152, 119 S.Ct. at 1176. Exactly how reliability is evaluated may vary from case to case, but what remains constant is the requirement that the trial judge evaluate the reliability of the testimony before allowing its admission at trial. See Fed.R.Evid. 702 advisory committee's note (2000 amends.) ("The trial judge in all cases of proffered expert testimony must find that it is properly grounded, well-reasoned, and not speculative before it can be admitted." (emphasis added)).
The final requirement for admissibility of expert testimony under Rule 702 is that it assist the trier of fact. By this requirement, expert testimony is admissible if it concerns matters that are beyond the understanding of the average lay person. See United States v. Rouco, 765 F.2d 983, 995 (11th Cir.1985) (expert testimony admissible if it offers something "beyond the understanding and experience of the average citizen"). Proffered expert testimony generally will not help the trier of fact when it offers nothing more than what lawyers for the parties can argue in
Because of the powerful and potentially misleading effect of expert evidence, see Daubert, 509 U.S. at 595, 113 S.Ct. at 2798, sometimes expert opinions that otherwise meet the admissibility requirements may still be excluded by applying Rule 403.
The application of these basic principles yields the conclusion that the district court did not abuse its discretion (that is, commit manifest error) in excluding certain portions of Tressel's proposed expert testimony.
We begin by observing that the first requirement, qualification, is satisfied here. Based on his training and experience as a forensic investigator, Tressel was qualified as an expert in forensic investigations. In fact, the trial judge acknowledged as much during the Daubert hearing. The district court said: "I think that he's an expert in what you normally look for [in a rape investigation], and I don't have any difficulty with that. That's where his area of expertise is." R5 at 51. Later, the trial judge reiterated this point, observing: "I have no problems with his expertise as he is obviously a very qualified criminal investigator.... [I]f here we were dealing with procedures that were used and whether they were adequate or inadequate, then I would consider him a good expert to testify to those matters." Id. at 66. Tressel's qualification as an expert forensic investigator was based on his experience with the Police Department of Cobb County, Georgia, and within the Cobb County Medical Examiner's Office. Were Tressel's qualification as an expert the only prerequisite to the admissibility of all his opinion testimony, we have little doubt that he would be competent to testify generally as an expert forensic investigator.
Two factors support our conclusion that the district court did not exclude Tressel's testimony because he lacked scientific expertise or was otherwise unqualified. First, as we have noted, the trial court explicitly said that Tressel was qualified by experience as an expert forensic investigator. Second, the district court allowed FBI investigators Lanning and Onorato to offer expert opinions after they were qualified as experts based in substantial measure on their experience.
We turn then to the central issue on appeal: whether the district court abused its discretion by excluding some of Tressel's opinion testimony because he failed to establish its reliability. We reiterate that the district court has the same broad discretion in deciding how to assess the reliability of expert testimony that it has in its ultimate reliability determination. In this case, after the government moved to exclude Tressel's testimony, the district court assessed the reliability of his opinions by conducting a thorough Daubert hearing in which Tressel was asked, repeatedly, what the bases for his opinions were. While some expert testimony will be so clearly admissible that a district court need not conduct a Daubert hearing in every case, see Kumho Tire, 526 U.S. at 150-52, 119 S.Ct. at 1175-76, in this case, the district court's decision to evaluate the admissibility of Tressel's opinions in the context of a pre-trial hearing was a perfectly reasonable one. Moreover, Frazier has not attacked the timing or conduct of the Daubert hearing. And the record amply establishes that Frazier was afforded every opportunity at the hearing to adduce the foundations of Tressel's challenged opinions. The district court did not abuse its discretion when it conducted a Daubert hearing.
The reliability of Tressel's opinion that the recovery of inculpatory hair or seminal
More fundamentally, even if we take Tressel's opinion to mean simply that it was more likely than not that hair or seminal fluid would be transferred, and therefore recovered, Tressel offered precious little in the way of a reliable foundation or basis for his opinion. After the government moved to exclude Tressel's expert testimony, the district court was obliged to exercise its gatekeeping role by determining whether Tressel provided a reliable foundation or basis for his opinion. When questioned specifically about the basis for his opinion, Tressel said his opinion was based on his experience, and on various texts in forensic investigation. However, even after repeated prompting, Tressel never explained just how his own experience, or the texts he mentioned, supported his "expectancy" opinion. Indeed, Tressel identified only a single investigation he had worked on in which hair evidence was recovered during the investigation of a serial rapist, and could suggest no study that had ever examined the rate of transfer of hair in sexual assault cases.
While the expert's statement that the recovery of hair or seminal fluid "would be expected" expresses an intrinsically probabilistic or quantitative idea, the probability it expresses is unclear, imprecise and ill-defined. And the basis for that probabilistic opinion is left unstated. Without knowing how frequently hair or seminal fluid is transferred during sexual conduct in similar cases—whether derived from reliable studies or based on some quantification derived from his own experience—it would be very difficult indeed for the district court (or for that matter the jury) to make even an informed assessment, let alone to verify that the recovery of hair or fluid evidence in this case "would be expected." Nor could the district court tell from Tressel's testimony whether his opinions had been subjected to peer review or, even, the percentage of cases in which his opinion had been erroneous. Simply put, Tressel did not offer any hard information concerning the rates of transfer of hair or fluids during sexual conduct.
Since Tressel was relying solely or primarily on his experience, it remained the burden of the proponent of this testimony to explain how that experience led to the conclusion he reached, why that experience was a sufficient basis for the opinion, and just how that experience was reliably applied to the facts of the case. Again, "[t]he court's gatekeeping function requires more than simply `taking the expert's word for it.'" Fed.R.Evid. 702 advisory committee's note (2000 amends.).
Our review of this record leads us to the conclusion that the district court did not abuse its discretion in finding the absence of a sufficiently verifiable, quantitative basis for Tressel's opinion.
Turning finally to the third requirement for admissibility of expert opinion testimony—whether it will assist the trier of fact in understanding the evidence—the district court also concluded that Tressel's opinion regarding "expectation" would not aid the jury.
Frazier also claims that the district court's decision to permit the testimony of FBI investigators Lanning and Onorato— while at the same time excluding some of Tressel's opinion—was a fatal error. We remain unpersuaded.
Frazier makes three broad arguments in support of this claim. First, he says that the government's failure to provide notice of its intent to call Lanning and Onorato violated the spirit and purpose of Rule 16 of the Federal Rules of Criminal Procedure. Next, Frazier suggests that it was improper for the district court to allow the government to use Lanning and Onorato as rebuttal witnesses. Having excluded Tressel's testimony, Frazier argues, there was nothing for Lanning and Onorato to rebut. Finally, Frazier maintains that it was simply unfair to allow the government to present evidence—through Lanning and Onorato—on the very issue on which he was unable to offer evidence from Tressel.
Fed.R.Crim.P. 16(a)(1)(G) (emphasis added). Our case law establishes that, consistent with the plain language of the Rule, the government's presentation of rebuttal testimony without prior notice does not violate Rule 16, since the Rule's notice requirements apply only to the government's case-in-chief. See United States v. Windham, 489 F.2d 1389, 1392 (5th Cir.1974) ("Rebuttal witnesses are a recognized exception to all witness disclosure requirements.");
Frazier argues, nevertheless, that the testimony of Lanning or Onorato is not rebuttal because Tressel's testimony was excluded and, thus, there were no opinions for them to contradict. We disagree. We have explained that "[t]he purpose of rebuttal evidence is `to explain, repel, counteract, or disprove the evidence of the adverse party,' and the decision to permit rebuttal testimony is one that resides in the sound discretion of the trial judge." United States v. Gold, 743 F.2d 800, 818 (11th Cir.1984) (quoting United States v. Delk, 586 F.2d 513, 516 (5th Cir.1978)); see also Luttrell v. United States, 320 F.2d 462, 464 (5th Cir.1963) ("`It is within the distinct office of rebuttal to explain, repel, counteract, or disprove the evidence of the adverse party.'" (quoting Shepard v. United States, 64 F.2d 641, 642 (10th Cir.1933))).
During his case-in-chief, Frazier's counsel called Lanning and Onorato (instead of Tressel) in order to establish that no hair or fluids matching Frazier's were found at the scene of the crime, after suggesting in opening statement that the absence of this evidence meant that no sexual assault had taken place, and therefore that the victim's accounts of abduction and assault were not credible.
We add that by introducing the fact that the investigators had failed to recover any inculpatory hairs or bodily fluids, and arguing the significance of that failure, Frazier plainly opened the door for the government to offer reliable evidence that could help explain the significance of that failure. He cannot now complain that the government stepped through that door and rose to the challenge he presented. See United States v. Hall, 653 F.2d 1002, 1006 (5th Cir. Unit A Aug.1981) ("The underlying rationale [of rebuttal evidence] is that when the defendant has opened the door to a line of testimony by presenting evidence thereon, he cannot object to the prosecution's accepting the challenge and attempting to rebut the proposition asserted." (citing Delk, 586 F.2d at 516)). This was the purpose animating the government's use of Lanning's and Onorato's testimony, and the district court did not abuse its discretion in allowing the testimony of Lanning and Onorato on rebuttal. No violation of Rule 16 has been established on this record.
Frazier also argues that, regardless of whether there was any violation of the terms of Rule 16, it was unfair to allow Lanning and Onorato to testify because Tressel was not permitted to testify on the same point. Frazier says that if the government was allowed to present evidence on an issue, he too should have been afforded the same opportunity to do so. Frazier relies on United States v. Gaskell, 985 F.2d 1056 (11th Cir.1993) for the proposition that a district court may abuse its discretion when it excludes one party's testimony on a critical issue while allowing the other party to present evidence on the same issue.
Gaskell is inapposite and Frazier's reliance upon it is misplaced. In Gaskell, a panel of this Court ruled that the district court erred by excluding the expert testimony of one party while allowing the other party to present expert testimony on the same issue. However, in Gaskell, the district court's reason for excluding the testimony was the lack of relevance. We held that if testimony for one party was relevant, testimony for the other party on the same issue would be relevant and, if otherwise admissible, should not be excluded. See Gaskell, 985 F.2d at 1063 ("Any doubt as to the relevance of this evidence should have been resolved in favor of Gaskell in light of the fact that the government's expert was allowed to opine [on the same subject]. `It is an abuse of discretion to exclude the otherwise admissible opinion of a party's expert on a critical issue, while allowing the opinion of his adversary's expert on the same issue.'" (quoting United States v. Lankford, 955 F.2d 1545, 1552 (11th Cir.1992) (emphasis added))).
Here, however, the government has not disputed that Tressel's testimony was relevant; rather, it objected and the district court ruled that some of Tressel's opinion testimony was not reliable, and for that reason inadmissible. Because the district court did not abuse its discretion in finding the opinion unreliable, Gaskell does not illuminate this case.
Nor are we persuaded by Frazier's broader claim that the aggregate effect of the district court's evidentiary rulings was to deny him "a meaningful opportunity to present a complete defense." California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 2532, 81 L.Ed.2d 413 (1984).
It is surely true that a defendant must be afforded the opportunity to present a defense. Indeed, the right of the accused to assert a complete defense is well established, and has its roots in the Fifth, Sixth, and Fourteenth Amendments to the Constitution. The Supreme Court has explained:
Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 2146-47, 90 L.Ed.2d 636 (1986) (internal quotation marks and citations omitted). As the Court observed in Chambers v. Mississippi: "[f]ew rights are more fundamental than that of an accused to present witnesses in his own defense." 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297 (1973).
While the Constitution unquestionably provides a defendant with the right to be heard, this right is not unbounded. Thus, "[t]he accused does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence." Taylor v. Illinois, 484 U.S. 400, 410, 108 S.Ct. 646, 653, 98 L.Ed.2d 798 (1988). A trial would not be considered unfair because the defendant was prevented from offering perjured testimony. See Nix v. Whiteside, 475 U.S. 157, 173, 106 S.Ct. 988, 997, 89 L.Ed.2d 123 (1986) ("Whatever the scope of a constitutional right to testify, it is elementary that such a right does not extend to testifying falsely."); Harris v. New York, 401 U.S. 222, 225, 91 S.Ct. 643, 645, 28 L.Ed.2d 1 (1971). Nor are an accused's constitutional rights necessarily violated because he was prevented from introducing hearsay, see United States v. Pena, 527 F.2d 1356, 1362 (5th Cir.1976), or from presenting otherwise relevant evidence that is privileged, such as communications between a doctor and patient, a lawyer and client, or between a husband and wife, see United States v. Brown, 634 F.2d 819, 830 (5th Cir.1981) ("The district court did not violate either [the defendant's] Sixth Amendment right to confront the witnesses against him or his Fifth Amendment right to due process of law when it upheld [the] claim of marital privilege as a bar to the... testimony."). And courts may constitutionally preclude defendants from offering otherwise relevant evidence if they fail to comply with procedural rules that require notice to be given. See Michigan v. Lucas, 500 U.S. 145, 152-53, 111 S.Ct. 1743, 1748, 114 L.Ed.2d 205 (1991); Taylor, 484 U.S. at 417, 108 S.Ct. at 657. Thus, for example, a district court may constitutionally preclude an accused from calling an alibi witness if he has failed to disclose the witness, as required under Rule 12.1 of the Federal Rules of Criminal Procedure. See, e.g., Williams v. Florida, 399 U.S. 78, 81-82, 90 S.Ct. 1893, 1896, 26 L.Ed.2d 446 (1970) (finding analogous state notice-of-alibi rule constitutional).
As the Supreme Court observed in Chambers, the accused, just like the state, "must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence."
A policy which aims at preventing the use of unreliable or misleading expert evidence in criminal trials is far from arbitrary. Accordingly, a court may constitutionally enforce evidentiary rules to limit the evidence an accused (or for that matter any party) may present in order to ensure that only reliable opinion evidence is admitted at trial. "The Sixth Amendment does not confer the right to present testimony free from the legitimate demands of the adversarial system; one cannot invoke the Sixth Amendment as a justification for presenting what might have been a half-truth." United States v. Nobles, 422 U.S. 225, 241, 95 S.Ct. 2160, 2171, 45 L.Ed.2d 141 (1975); see also United States v. Nixon, 418 U.S. 683, 709, 94 S.Ct. 3090, 3108, 41 L.Ed.2d 1039 (1974) ("The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence.").
While the Federal Rules of Evidence —notably Rule 702—aim to ensure that the fact-finder weighs only sound and reliable evidence, it is also worth repeating that a district court's exercise of its gatekeeping responsibilities must not "supplant the adversary system or the role of the jury." Allison v. McGhan Med. Corp., 184 F.3d 1300, 1311 (11th Cir.1999); see also United States v. 14.38 Acres of Land, More or Less Situated in Leflore County, Miss., 80 F.3d 1074, 1078 (5th Cir.1996) ("[T]he trial court's role as gatekeeper is not intended to serve as a replacement for the adversary system. . . ."). As the ultimate fact-finder, it is the jury that must determine, finally, where the truth in any case lies, and the district judge as gatekeeper may not usurp this function. See Fed.R.Evid. 102 ("These rules shall be construed ... to the end that the truth may be ascertained and proceedings justly determined."); Nix, 475 U.S. at 171, 106 S.Ct. at 996 (explaining that "governance of trial conduct" should aim at "what we have long called `a search for truth'"). However, the trial judge's role as gatekeeper is designed to ensure that the jury, in carrying out its prescribed role, bases its determinations on relevant and reliable evidence, rather than on speculation or otherwise unreliable conjecture. These bedrock principles establish that, while a criminal defendant must be given every meaningful opportunity to present a complete defense, in doing so he must comply with the procedural and evidentiary rules designed to facilitate a search for the truth.
Turning to the case at hand, Frazier's right to put on a meaningful defense did not include the unfettered and unreviewable opportunity to present all expert opinion, even if it did not meet the basic requirements for admissibility found in Rule 702. See Taylor, 484 U.S. at 410-11, 108 S.Ct. at 653-54. And we have found that the district court acted well within its discretion in excluding some of Tressel's opinions.
Moreover, Frazier's view that the exclusion of Tressel's testimony denied him a fundamentally fair trial must also fail because, as we've noted, the essence of Tressel's proposed testimony was admitted at trial through alternative means. The basis for Tressel's expectancy opinion—that no transferred hair or fluid evidence inculpating Frazier in the sexual assault was recovered—was actually admitted at trial
In short, the district court's exclusion of some portions of Tressel's opinion testimony did not prevent Frazier from introducing the key elements of his defense and placing his story before the jury. See Sheffield, 992 F.2d at 1170.
After painstaking review of this record we are satisfied that the district court did not abuse its discretion, that is commit manifest error, in excluding a portion of Tressel's opinion testimony while allowing the government's rebuttal evidence on the same issue. Nor, finally, was this defendant denied a fair trial. Accordingly, we affirm.
TJOFLAT, Circuit Judge, specially concurring:
The critical issues in this appeal concern evidentiary rulings. Frazier contends that the district court abused its discretion when it barred his expert, Robert Tressel, from expressing his opinions (1) that "there is no forensic evidence to substantiate the claim of rape in this case," and (2) that, if the victim's claim of rape were true, "it would be expected that some transfer of either hairs or seminal fluid would [have] occur[red]." Frazier also challenges the court's decision to permit two FBI forensic investigators, Karen Lanning and Anthony Onorato, to testify on rebuttal that the absence of hairs and seminal fluid does not mean that no rape occurred. I concur in the court's holding that the district court did not abuse its discretion in overruling Frazier's objection to Lanning's and Onorato's testimony.
I begin by observing what happens after a party objects to the introduction of an expert witness's opinion on the ground that the opinion is unreliable.
If the proponent does this, and the court thereafter finds the opinion reliable, the court must admit the opinion unless it concludes that, though relevant and reliable, the opinion's probative value is "substantially outweighed" by the considerations outlined in Federal Rule of Evidence 403.
Identifying the circumstantial facts, or factors, that are to serve as the indicia of reliability in a given case is a matter committed to the trial court's sound discretion.
Understanding the model for determining the reliability of an expert's opinion sheds considerable light on the operation of the standard a court of appeals employs in reviewing the trial court's ruling on the opinion's admissibility. We review a trial court's decision admitting or excluding evidence for "abuse of discretion," Old Chief v. United States, 519 U.S. 172, 174 n. 1, 117 S.Ct. 644, 647 n. 1, 136 L.Ed.2d 574 (1997); United States v. Abel, 469 U.S. 45, 54-55, 105 S.Ct. 465, 470-71, 83 L.Ed.2d 450 (1984), and this is true when we review rulings admitting or excluding the testimony of expert witnesses under Rule 702.
What would a reviewing court say if the trial court, in determining whether an expert's opinion was reliable, based its finding on irrelevant factors?
With this model for determining the reliability of expert opinion testimony in mind, I turn to the question of whether the district court abused its discretion in barring Frazier's expert, Robert Tressel, from testifying to the two opinions at issue in this appeal.
Frazier sought to use Tressel, now a private forensic investigator, for the purpose of challenging the veracity of the victim's claim that Frazier forced her into sexual intercourse and, thereby, her credibility as to whether she had been kidnaped. Tressel proposed to summarize the findings of the FBI's forensic investigation of the car and the victims clothes, as well as the records of a medical examination of the victim, and to offer three opinions: (1) that "a thorough forensic investigation and a thorough rape examination of the victim ... were performed"; (2) that "there is no forensic evidence to substantiate the claim of rape in this case"; and (3) that "it would be expected that some transfer of either hairs or seminal fluid would [have] occur[red]" if the victim's account were true.
The district court allowed Tressel to offer all of his proposed testimony except two of his ultimate opinions: that there was no forensic evidence to substantiate
The district court did not abuse its discretion in excluding these opinions. The court correctly identified as crucial to the reliability of both opinions circumstantial facts that Tressel either did not attempt or was not qualified to establish, and Frazier offered no supplementary proof to establish these facts. Thus, Frazier failed to prove by a preponderance of the evidence that these two opinions were reliable, and the court implicitly found them unreliable. Because the court's findings that Tressel's opinions were unreliable were not clearly erroneous, the exclusion of these opinions was not an abuse of discretion.
I first address the district court's ruling excluding Tessel's opinion that he saw "no forensic evidence to substantiate the claim of rape in this case." The obstacle Frazier had to overcome to establish the reliability of this opinion was Tressel's inability to negate the inculpatory power of one item of "forensic evidence" that squarely corroborated the victim's story: bruising to and discoloration of the victim's genital area discovered during a medical examination conducted shortly after she and Frazier were pulled from her wrecked automobile. To overcome this obstacle, Tressel attempted to provide an explanation for this bruising and discoloration that would not inculpate Frazier.
Tressel stated in his expert report, and proposed to testify at Frazier's trial, that "[t]he documented finding of bruising around the labia major indicates that the bruising may be substantially older than only a few hours," and that "[t]he only indication that any type of sexual activity occurred, . . . the redness around the labia major and the redness of the cervix .... can occur during routine normal sexual activity." Tressel implied that the bruising and discoloration was caused by sexual intercourse between the victim and her boyfriend, which, according to the victim's medical records, had occurred two days before the alleged kidnaping.
On cross-examination, however, Tressel acknowledged that he was not a physician and had no experience in the medical field. He had no training in pelvic examinations of sexual assault victims, nor had he examined the victim in this case. The district court reasonably (indeed, necessarily) recognized that the reliability of Tressel's "no forensic evidence" opinion was, as Tressel had presented it in his report, dependent on the establishment of the fact that someone other than Frazier caused the genital bruising and discoloration. The court
Frazier also challenges the district court's exclusion of Tressel's opinion that, given the circumstances of the alleged rape, some transfer of hairs or seminal fluid between Frazier and the victim would have been expected.
To support his opinion, Tressel purportedly relied on his extensive experience in forensic investigations, including investigations of sexual assaults, and several abstract factual propositions about the types of evidence found in sexual assault investigations and the factors affecting the likelihood of transfer and recovery. These abstract factual propositions are actually inferences that Tressel drew from a combination of (vaguely identified) law enforcement texts and his professional experience and training.
Tressel apparently combined these circumstantial facts with the "very confined area" in which the rape allegedly occurred, the quantity and duration of the sexual acts it involved, and the lack of any mention of a condom being used to conclude that hair or seminal fluid transfers "would be expected" or "should" have occurred.
What troubled the court about Tressel's "expectancy" opinion was that Tressel was unable to indicate the frequency with which hairs and seminal fluid transfers occur in sexual assault cases and, in particular, cases like the one at hand. Tressel could not testify to such frequency from his own experience, and he was unable to cite any published findings on the subject. Without some indication of the frequency with which hairs and seminal fluid are transferred during sexual assaults, the court concluded, it could not find reliable Tressel's opinion that hair or seminal fluid transfers "would be expected" or "should" have occurred in this case. In my view, the court acted well within its discretion in placing great weight on this frequency factor. Thus, when Frazier failed to provide that missing link, the court was fully justified in striking Tressel's opinion as unreliable.
The court's focus on the transfer rates for hair and seminal fluid was entirely reasonable because Tressel's "expectancy" opinion was not permissibly inferable from the circumstantial facts upon which he purportedly based it, and the most obvious gap in Tressel's reasoning was his inability or unwillingness to say how often hairs and seminal fluid are transferred between victim and perpetrator during sexual assaults. Tressel's "expectancy" opinion expresses an estimate of absolute probability. At minimum, it implies that, given the events alleged by the victim, it is more likely than not—that is, there is more than a fifty-percent chance—that a transfer would have occurred.
Some of the factual propositions upon which Tressel relied—for example, that seminal fluid is "frequently" found, or that head hairs "can" be found on the perpetrator's clothing—are statements of absolute probability, but they do not logically get us near the fifty percent mark. "Can" necessarily connotes only a bare possibility (something over one percent), and though "frequently" suggests something more, it does not connote "usually" or "most of the time" or in any way suggest that something happens "more often than not."
Logically, then, the factual propositions Tressel relied upon, even if inferrable,
Yet Frazier produced no evidence on this point. On cross-examination at the Daubert hearing, the Government repeatedly invited Tressel to explain how his experience informed his "expectancy" opinion. Tressel pointed only to one case he had investigated in which the head hair and pubic hair of a serial rapist was found on four of the rapist's victims, drawing no comparison between the facts of that case and those of this one. He offered no general observations about the frequency with which, in his experience, either hair or seminal fluid is transferred or recovered, much less the frequency of transfers in cases involving multiple episodes of unprotected sexual contact, and he stated that he was unaware of any studies that could provide this information. Because Frazier failed to produce any evidence on the circumstantial fact the court reasonably found crucial to the reliability of Tressel's "expectancy" opinion, the court correctly excluded the opinion.
In summary, the model for reviewing a trial court's finding as to the reliability of an expert opinion requires that we uphold the finding unless the court abused its discretion in reaching it—that is, unless the court misapplied the law or based its finding on a clearly erroneous finding as to one or more circumstantial facts crucial to a finding of reliability. Keeping these points in mind, I think it clear that the district court did not abuse its discretion in arriving at its findings that Tressel's opinions —that "there is no forensic evidence to substantiate the claim of rape in this case" and that if the victim's claim of rape were true, "it would be expected that some transfer of either hairs or seminal fluid would [have] occur[red]"—were unreliable. Frazier simply failed to establish by a preponderance of the evidence the circumstantial facts that the court, in the exercise of its discretion, identified as crucial and highly relevant indicia of reliability. Because the district court did not abuse its discretion in the manner in which it resolved the reliability issues, and because the court's findings as to the opinions' reliability were not clearly erroneous, the court was bound to exclude them. Indeed, the court would have abused its discretion had it permitted the jury to hear them.
BARKETT, Circuit Judge, concurring:
I concur in the majority opinion and find exceedingly useful its parsing of the methodology
While experience may be sufficient to qualify a person as an expert, the ipse dixit of an expert in a given field is simply not enough to establish the reliability of a particular opinion. Id. The majority makes clear that where a witness relies
Id. (quoting Fed.R.Evid. 702 advisory committee's note (2000 amends.)).
I agree that the district court properly excluded Tressel's testimony because he failed to establish how his experience led to the specific conclusion that "it would be expected that some transfer of either hairs or seminal fluid would occur." R5 at 24, Ex. 2 at 2. Indeed, the only support Tressel offered to validate his claim was that in one rape case he worked on he "identified head hair and pubic hair" of a serial rapist on four victims. R5 at 37-38.
BIRCH, Circuit Judge, dissenting:
For the reasons that follow, I respectfully dissent. This is the classic case that law students study to understand the adage "hard facts make bad law." Those hard facts (the majority calls it a "sad case" and a "crime of unspeakable brutality") have caused the trial court and a majority of this court to elevate an evidentiary rule, improperly administered, over a criminal defendant's basic right to "present his own witnesses to establish a defense. This right is a fundamental element of due process of law." Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d
What is particularly disturbing is that the trial court allowed the government, over objection, to use two FBI laboratory technicians who were called as fact witnesses in the government's case-in-chief, on rebuttal to testify as to the import of a lack of forensic evidence found at the crime scene without requiring any support for their testimony of a statistical or scientific nature. The presence of lack of such forensic evidence and its import was precisely the testimony the defense expert witness was prohibited from providing. See, infra, notes 7 & 22. What was good for the government gander essentially cooked the defense's goose in this case.
The trial court's ruling in this case was an abuse of discretion for two principal reasons: (a) the district court committed a Daubert
A. Erroneous Daubert Rulings
Before trial, Frazier gave notice to the Government that he intended to offer the testimony of Robert Tressel, a forensic investigator and former police officer, as an expert under Federal Rule of Evidence 702. Rule 702 "assign[s] to the trial judge the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand." Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Accordingly, the Government made a motion in limine to exclude Tressel's testimony under Daubert, and the district court accordingly held a hearing on the motion. During the Daubert hearing, it became clear that Tressel's expertise was based on his experience,
1. Requiring Scientific Evidence
Despite Tressel's qualifications as an expert, the district court decided to tightly circumscribe the limits of Tressel's proposed testimony on the ground that Tressel, as an experience-based expert, needed some scientific data or study on which to base his conclusions in order for them to be reliable
2. The Error Compounded
On rebuttal, however, the district court's initial Daubert error was compounded when the Government was allowed to use these same FBI laboratory technicians— used by the government as fact witnesses —to testify as experts. The Government offered the FBI agents as experience-based experts who would be asked to testify to the import of the lack of forensic evidence—the same "leap" that Tressel was not allowed to make. The defense objected, arguing that the prosecution had failed to communicate its intention to call expert witnesses, violating the notice provisions of Federal Rule of Evidence 16.
B. Frazier's only Viable Defense was Eviscerated
Allowing the FBI agents to testify as to the import of finding no forensic evidence, while not allowing Tressel to do the same, essentially eviscerated Frazier's principal and only practical defense—questioning the credibility of the victim to show that if the rape did not occur, neither did the kidnapping.
In this section, I will (a) state the proper standard of review, (b) discuss the district court's erroneous Daubert rulings, and (c) discuss the effect of this ruling on Frazier's ability to present a meaningful defense.
A. Standard of Review
We review a district court's exclusion of expert testimony under the federal rules of evidence for an abuse of discretion. United States v. Paul, 175 F.3d 906, 909 (11th Cir.1999). As for the district court's interpretation of Federal Rule of Evidence 702, our review is plenary. Id. No error regarding the admission or exclusion of evidence is reversible "unless a substantial right of the party is affected." Fed. R.Evid. 103(a).
B. The District Court's Daubert Rulings
Rule 702 of the Federal Rules of Evidence allows "a witness qualified as an expert by knowledge, skill, experience, training, or education" to testify "in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case," provided that the "scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue." In Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the Supreme Court "assign[ed] to the trial judge the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand." Id. at 597, 113 S.Ct. at 2799.
Id. at 592, 113 S.Ct. at 2796 (footnotes omitted). Thus, for proffered expert testimony to be admissible, a court must determine that:
City of Tuscaloosa v. Harcros Chem., Inc., 158 F.3d 548, 562 (11th Cir.1998).
But while "[t]he judge's role is to keep unreliable and irrelevant information from the jury," it "is not intended to supplant the adversary system or the role of the jury." Allison v. McGhan Med. Corp., 184 F.3d 1300, 1311-12 (11th Cir.1999). The admissibility standard is a liberal one, United States v. Hankey, 203 F.3d 1160,
Allison, 184 F.3d at 1321 (citation omitted) (quoting McCullock v. H.B. Fuller Co., 61 F.3d 1038, 1045 (2d Cir.1995)).
Because the district court forbade Tressel from testifying to two key propositions, I address each proposition in turn and then discuss how the district court's ruling was incorrectly and inconsistently applied.
1. Tressel's Opinion on the Import of the Lack of Forensic Evidence
The district court would not allow Tressel to draw any inferences that the lack of forensic evidence did not substantiate the victim's claim of rape because it would invade the jury's province and usurp its role in deciding the penultimate issue of whether rape actually occurred. However, "it is part of the normal role of the expert not merely to describe patterns of conduct in the abstract, but to connect actions in a specific case to those patterns—sometimes even to the point of testifying that the defendant was [or was not] involved in criminal conduct." United States v. Boney, 977 F.2d 624, 629 (D.C.Cir.1992). "Rule 702 does not bar an expert from drawing conclusions in a specific case ... [and] does not require that any inferences from the facts in the specific case be left to the jury." Id. Thus, experts may "take the further step of suggesting the inference which should be drawn from applying the specialized knowledge to the facts." Fed.R.Evid. 702 advisory committee notes, 1972 Proposed Rules. This is true even if the testimony "merely assist[s] the jury in interpreting the significance of the evidence," United States v. Brown, 7 F.3d 648, 654 (7th Cir.1993), draws on "common sense," United States v. Glover, 265 F.3d 337, 345 (6th Cir.2001), or, while helpful, is nonetheless "obvious," United States v. Sellers, 566 F.2d 884, 886 (4th Cir.1977). Indeed, "whether the specific expert testimony focuses upon specialized observations, the specialized translation of those observations into theory, a specialized theory itself, or the application of such a theory in a particular case, the expert's testimony often will rest `upon an experience confessedly foreign in kind to [the jury's] own.'" Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149, 119 S.Ct. 1167, 1174, 143 L.Ed.2d 238 (1999) (citation omitted) (emphasis mine).
In Brown, for instance, the defendant had been convicted of possession with intent to distribute cocaine base. 7 F.3d at 649. On appeal, "the issue was whether [he] possessed the twenty-five rocks of crack cocaine for distribution or for personal use." Id. at 652. The government's expert identified certain indices that are commonly associated with drug dealers. "He also described the typical paraphernalia associated with street-level crack distributors and compared that with the paraphernalia and behavior patterns usually associated with those possessing crack only for personal use." Id. at 650. From this information, the expert concluded that the crack cocaine seized from the defendant was not intended for personal consumption, but for distribution. Id. The defendant objected, arguing that the jury could draw its own inferences from the
In the same way, Tressel's conclusion in this case—that the absence of any forensic evidence did not substantiate the claim of rape—would have helped the jury to understand the significance of the negative implication to be drawn; what the prosecution even referred to as the "
2. Tressel's Opinion on the Evidence He Would Expect to Find in This Case
The trial court also refused Tressel's proffered testimony that "it would be expected that some transfer or either hairs or seminal fluid would occur in this case" because it found this testimony unreliable for lack of scientific data. R5 at 24, Ex. 2 at 2. In particular, the district court faulted Tressel for not having rested his conclusion on any empirical study and disfavored his testimony because it was couched in qualitative terms rather than hard numbers or statistical data. See note 3, infra. This ruling was based on an incomplete understanding of the background required of an expert witness.
The text of Rule 702 dictates that expert status may be based on experience, and the Advisory Committee Notes dictate that experience alone "may ... provide a sufficient foundation for expert testimony." Rule 702 cmt. at 290. Without doubt, the Supreme Court's ruling in Daubert imposes difficult gatekeeping duties on trial courts, one of which involves an exacting assault to the foundation of any proposed expert testimony to determine whether it is plumb or stands out of true, resting on shaky and unreliable ground. To survive this juridic ordeal and meet the standard of evidentiary reliability, expert testimony must be (1) "ground[ed] in the methods and procedures of science," (2) authenticated by "more than subjective belief or unsupported speculation," and (3) "supported by appropriate validation—i.e., `good grounds,' based on what is known." Daubert, 509 U.S. at 590, 113 S.Ct. at 2795. "[T]he trial court must scrutinize not only
This pre-trial by fire "applies not only to testimony based on `scientific' knowledge, but also to testimony based on `technical' and `other specialized' knowledge." Kumho Tire, 526 U.S. at 141, 119 S.Ct. at 1171. Thus, all expert opinion "must be the product of reliable principles and methods that are reliably applied to the facts of the case." Fed.R.Evid. 702, advisory committee notes, 2000 amends. "The trial judge in all cases of proffered expert testimony must find that it is properly grounded, well-reasoned, and not speculative before it can be admitted. The expert's testimony must be grounded in an accepted body of learning or experience in the expert's field, and the expert must explain how the conclusion is so grounded." Id. (emphasis mine).
This uncompromising emphasis on reliability does not mean, however, that the personal experience or knowledge of the expert alone is not to be trusted. "To the contrary, the text of Rule 702 expressly contemplates that an expert may be qualified on the basis of experience. In certain fields, experience is the predominant, if not sole, basis for a great deal of reliable expert testimony." Id. (emphasis mine). Indeed, "there are many different kinds of experts, and many different kinds of expertise." Kumho Tire, 526 U.S. at 150, 119 S.Ct. at 1175. Even after Kumho Tire, "there is no question that an expert may still properly base his testimony on `professional study or personal experience.'" Maiz v. Virani, 253 F.3d 641, 668-69 (11th Cir.2001) (holding that expert testimony on the "passport-stamping practices of Mexican immigration officials ... based largely on [the expert's] personal experience rather than verifiable testing or studies" was admissible) (emphasis mine).
However, this type of expert testimony generates certain difficulties in evaluating its reliability: "Some types of expert testimony will not rely on anything like a scientific method, and so will have to be evaluated by reference to other standard principles attendant to the particular area of expertise." Fed.R.Evid. 702 advisory committee notes, 2000 amends. "[A]n expert's qualifications and the reliability of his testimony do not always separate into a clear dichotomy," United States v. Jones, 107 F.3d 1147, 1160 (6th Cir.1997), and, in fact, are often blurred in the case of experience-based expert testimony. Where "the relevant reliability concerns may focus upon personal knowledge or experience," Kumho Tire, 526 U.S. at 150, 119 S.Ct. at 1175, "inquiries into an expert's qualifications, the reliability of his proffered opinion and the helpfulness of that opinion" frequently overlap to a significant degree. Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1341 (11th Cir.2003).
Even so, these "are distinct concepts that courts and litigants must take care not to conflate." Id. "The trial court's gatekeeping function requires more than simply taking the expert's word for it." Fed.R.Evid. 702 advisory committee notes, 2000 amends. (citation and internal quotation
Fed.R.Evid. 702 advisory committee's notes, 2000 amends.
Case law is replete with judicially-sanctioned instances of this type of deductive reasoning. For instance, physicians and other professionals,
Considering the four, non-exhaustive measures of reliability developed by the Daubert Court, "[g]eneral acceptance in the community is an important factor in evaluating an expert's methodology and courts particularly emphasize this Daubert factor when reliability focuses on experience." Groobert v. President & Dirs. of Georgetown Coll., 219 F.Supp.2d 1, 8 (D.D.C.2002). The other Daubert factors often recede in importance.
This is all the more true, as in this case, where probative quantitative studies are unavailable. For instance, one court refused to admit a physician's statistical testimony based on general experience. "To allow doctors to testify about specific statistical or medical questions and base their testimony only on general experience would be to say that doctors are qualified experts on every medical subject merely because they wear white coats." Erickson, 131 F.Supp.2d at 999. But the same court permitted similarly based qualitative testimony:
Id. at 1001. The Third Circuit likewise recognized that an expert's "testimony is neither conjecture nor speculation" merely because there is no available publication to substantiate it if the testimony is "well recognized by the scientific community," "not a novel scientific theory," and "supported by widely accepted scientific knowledge," and the expert "relied on general experience and readings, general medical knowledge, standard textbooks, and standard references." Kannankeril v. Terminix Internat'l, Inc., 128 F.3d 802, 809 (3d Cir.1997). Thus, expert opinion is not inherently unreliable merely for want of empirical studies if the information is commonplace in the field and "[s]tatistical methods are ... not invariably used in such research." Katt, 151 F.Supp.2d at 357. Where "experience-based studies are generally accepted in the industry," a
A useful construct is to imagine these two factors—whether the principle is common knowledge in the field and whether quantitative studies are available—as positioned within a four-part box. Just as no trial court would abuse its discretion by refusing to admit expert testimony considered experimental or speculative in the field for which quantitative studies were available,
The district court in this case did not question Tressel's experience—his participation in 150 sexual assault cases and thousands of crime scene investigations—or the application of that experience to the undisputed facts of the case—the absence of any physical evidence to link Frazier to the crime of rape. The court instead forbade his testimony because it was stated qualitatively, not quantitatively, and not because he failed to cite any authority in the field for the proposition. See note 2, infra. That certain symptoms are indicative of particular illnesses, that certain customs and practices are frequently used in particular industries, legal or illegal, or that certain patterns of handwriting are distinctive have rarely been challenged as an unreliable basis for expert testimony just because they are not explicitly validated by quantitative research; even where such quantitative data could have been collected (e.g., the Government could collect data as to how drug dealers, money launderers, etc., do business based on collective data from case studies). Courts recognize that such principles are commonly known, widely-accepted, and often taken for granted in the relevant academic community. They need not be substantiated empirically because they have risen to the rank of platitudes within their respective fields.
This is what the Supreme Court meant when it instructed trial courts to ensure that an expert relying on personal experience "employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Kumho Tire, 526 U.S. at 152, 119 S.Ct. at 1176. What physician, for example, would be laughed out of a medical conference for asserting without supporting statistical data that he would expect the cause of classic flu-like symptoms to be, of all things, the flu? Yet, this is precisely what the district court did in response to Mr. Tressel's testimony based on the rather uncontroversial assumption in his field that an experienced forensic investigator would expect to find hair or semen transfer in a sexual assault of prolonged duration in cramped quarters where, as here, evidence was gathered from an uncontaminated and confined crime scene. This ruling—requiring an experience-based expert to substantiate his conclusions with scientific data or studies — was an abuse of discretion.
3. The District Court's Daubert Rulings were Inconsistent
The trial court's Daubert error was compounded: it excluded Tressel's testimony relating to the import of the lack of forensic evidence found at the crime scene—on the ground that this conclusion was not supported by scientific data—and yet allowed the Government's witnesses to testify to this very issue—without similarly requiring scientific support for their conclusions. On rebuttal, the Government was allowed to convert two defense fact witnesses—the FBI agents—into experts. Like the defense's proffer of Tressel's testimony, the Government offered the FBI agents as experience-based experts who would be asked to testify as to the import of the lack of forensic evidence found at the crime scene.
"It is an abuse of discretion `to exclude the otherwise admissible opinion of a party's expert on a critical issue, while allowing the opinion of his adversary's expert on the same issue.'" United States v. Gaskell, 985 F.2d 1056, 1063 (11th Cir.1993) (per curiam); accord United States v. Garber, 607 F.2d 92, 95-97 (5th Cir.1979) (en banc). This was the district court's particular transgression here, and it constituted an abuse of discretion.
In United States v. Gaskell, we held that it was an abuse of discretion for the district court to allow the Government to present expert testimony on the determinative issue in that case, while not similarly allowing the defense to present its expert testimony. 985 F.2d at 1062-64. Gaskell involved a father charged with murdering his infant daughter by shaking her to death. Id. at 1058. The key issue was whether this shaking was willful or accidental. Id. at 1062. The Government was allowed to proffer the testimony of its expert, who stated that, "We are all taught to support the baby's head. It's fragile. You don't want to shake a baby's heads [sic]." Id. (citation omitted). The defense was forbidden, however, from proffering the testimony of its expert, who would have testified to "the general lack of public awareness of the dangers of shaking an infant." Id. We held that the exclusion of the defense's expert was an abuse of discretion and that this error was "compounded" by the allowing the Government to present its experts. Id. at 1063-64.
In this case, similar to Gaskell, the key issue is the import of the lack of forensic evidence found in a cramped crime scene after allegedly numerous acts of sexual activity. Like in Gaskell, the district court allowed the Government to present the testimony of its expert witness as to the import of this lack of evidence, but did not similarly allow the defense to present its expert on the issue. The district court thus abused its discretion by refusing to allow the defense's expert testimony regarding the import of the lack of forensic evidence, and this error was compounded when the Government was allowed to present expert testimony on this same issue.
C. Effect of Daubert Error on Frazier's Defense
While abuse of discretion is undoubtedly the measuring stick we use to evaluate the evidentiary decisions of trial courts, we cannot apply it in a vacuum. We must
In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 507-08, 92 L.Ed. 682 (1948). "Judgment without such citation and opportunity. . . can never be upheld where justice is justly administered." Hovey v. Elliott, 167 U.S. 409, 418, 17 S.Ct. 841, 845, 42 L.Ed. 215 (1897) (citation and internal quotation marks omitted). "A defendant who has been denied an opportunity to be heard in his defense has [indeed] lost something indispensable." Snyder v. Massachusetts, 291 U.S. 97, 116, 54 S.Ct. 330, 336, 78 L.Ed. 674 (1934).
"Under the Due Process Clause of the Fourteenth Amendment, criminal prosecutions must comport with prevailing notions of fundamental fairness. We have long interpreted this standard of fairness to require that criminal defendants be afforded a meaningful opportunity to present a complete defense." California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 2532, 81 L.Ed.2d 413 (1984) (emphasis mine); accord United States v. Beard, 436 F.2d 1084, 1086 (5th Cir.1971).
Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967). "Few rights are more fundamental than that of an accused to present witnesses in his own defense." Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297 (1973). True enough, a defendant has no right to put on inadmissible evidence or unreliable expert testimony. See Johnson v. Wainwright, 806 F.2d 1479, 1485 (11th Cir.1986); Phillips v. Wainwright, 624 F.2d 585, 588 (5th Cir.1980).
Several cases in our own circuit support the proposition that a criminal defendant must be allowed to present a complete defense. In particular, we have reversed lower court rulings that have excluded defense testimony where we thought a stricter standard of review prudent.
United States v. Kelly, 888 F.2d 732, 743 (11th Cir.1989) (citation and internal quotation
In addition, we have also expressly relaxed otherwise strict admissibility criteria when it is the defendant who seeks to introduce evidence under Rule 404(b) of the Federal Rules of Evidence. In reversing the district court, we said:
United States v. McClure, 546 F.2d 670, 673 (5th Cir.1977); see also Cohen, 888 F.2d at 776 (observing that "the standard for admission is relaxed when [FRE 404(b)] evidence is offered by a defendant"). There is no principled reason to begrudge a criminal defendant this same remedial benefit for the admissibility of expert testimony under Daubert.
I conclude that the district court abused its discretion when, under the guise of Daubert, it required Tressel, an experience-based expert witness, to support his conclusions with scientific data or studies. The majority concedes this, but then ignores it. See Maj. Op. at 1250; note 4, supra. This Daubert error was compounded when the Government's experience-based expert witnesses were not similarly required to support their conclusions with any scientific or statistical information. The district court's erroneous Daubert ruling, in effect, eviscerated Frazier's principal and only practical defense. Based on the district court's incorrect Daubert ruling, and because I am convinced that, in cases like this, the defendant's Sixth Amendment right to a fair trial should circumscribe an interpretation of the rules of evidence eviscerating his defense, I must respectfully dissent.
18 U.S.C. § 1201(a).
Def. Ex. 2 at 2.
R5 at 51, 66.
R9 at 359-60.
18 U.S.C. § 3559(c)(1).
William W. Schwarzer & Joe S. Cecil, "Management of Expert Evidence," Reference Manual on Scientific Evidence 39 (Federal Judicial Center, 2d ed.2000).
R5 at 69 (emphasis added).
Evidentiary decisions do not constitute reversible error "unless a substantial right of the party is affected," Fed.R.Evid. 103(a), and errors that do not "affect substantial rights must be disregarded." Fed.R.Crim.P. 52(a). In a case involving non-constitutional evidentiary errors, we read these rules of evidence and criminal procedure along with the federal harmless-error statute, 28 U.S.C. § 2111, which requires that "the court shall give judgment after an examination of the record without regard to errors or defects which do not affect the substantial rights of the parties." See United States v. Guzman, 167 F.3d 1350, 1353 (11th Cir.1999); United States v. Hernandez, 160 F.3d 661, 670 (11th Cir.1998); United States v. Lankford, 955 F.2d 1545, 1556 (11th Cir.1992); United States v. Sellers, 906 F.2d 597, 601 (11th Cir.1990). Errors do affect a substantial right of a party if they have a "substantial influence" on the outcome of a case or leave "grave doubt" as to whether they affected the outcome of a case. Kotteakos v. United States, 328 U.S. 750, 764-65, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557 (1946). The exclusion of a portion of Tressel's opinion testimony, even if erroneous, did not affect Frazier's substantial rights.
As we've repeated, the substance of the excluded portions of Tressel's testimony was presented to the jury through the testimony of other witnesses. Frazier argued vigorously that the lack of hair and fluid evidence meant that there had been no rape and therefore no abduction. We reiterate that the district court did not exclude all of Tressel's testimony. Indeed, it allowed him to testify that a thorough investigation was performed; that no inculpatory evidence was recovered; that hair is the evidence "most commonly found" in rape investigations; and that seminal fluids are "frequently found in sexual assault cases," especially when (as in this case) there is a claim that multiple episodes of sexual activity occurred and no condom was used. Whatever impact the failure to present this evidence through Tressel had on the outcome of the trial, Frazier cannot now complain that his rights were violated, since it was his decision, not a ruling by the trial judge, that kept Tressel from testifying at all.
Moreover, the excluded portion of Tressel's opinion testimony was offered as secondary evidence targeted solely at impeaching the victim's credibility on her claim of rape, rather than being offered as substantive evidence relating to Frazier's guilt or innocence on the kidnapping charge. The excluded opinion testimony related to whether Frazier raped the victim, not whether he kidnapped her. Cf. United States v. Burroughs, 830 F.2d 1574, 1578-80 (11th Cir.1987) (effect of withholding impeachment evidence not sufficiently prejudicial to merit new trial where sufficient evidence of substantive guilt was presented and government's witness was impeached through other means). Nor was Frazier prevented from impeaching the victim's credibility through other means, and indeed, he took ample advantage of other opportunities to do so. The defense sought to undermine the credibility of the victim's account of kidnapping and rape by, among other things, presenting evidence that she did not appear to be upset or afraid when she accompanied the defendant when he purchased gasoline and cigarettes, nor, notably, did she try to escape; that she lit a cigarette for Frazier while in the car; and that she did not initially tell police she had been raped immediately after being removed from her car. Evidence was also offered establishing that the victim was calm and did not appear upset when she was taken to the hospital. This evidence, when combined with the undisputed presentation of facts that neither the defendant's hair nor semen were found on the victim's person or in her car, provided Frazier ample opportunity to present to the jury his basic defense that the victim had manufactured the entire account of abduction and rape.
Finally, the exclusion of some of Tressel's opinion testimony (even if error) was harmless because the other evidence of Frazier's guilt was so substantial. See United States v. Fortenberry, 971 F.2d 717, 722 (11th Cir.1992). The defendant's own account of the night in question was patently incredible and unbelievable, and Frazier's account itself constituted substantive evidence of his guilt. See United States v. Bennett, 848 F.2d 1134, 1139 (11th Cir.1988) (observing that "a defendant's implausible explanation may constitute positive evidence in support of a jury verdict," and that where the defendant's story was "dubious, if not wholly incredible ... [a] reasonable jury might well disbelieve the explanation and conclude that the [defendant was] lying in an attempt to cover up illegal activities"). After his arrest, Frazier told the FBI that, after drinking beer all day (indeed, after finishing off three 12-packs of beer by 6:00 that evening), he was sitting on a bench in a Wal-Mart parking lot, when he was approached by an 18-year-old woman who was a complete stranger, and who initiated a conversation with him, offering to give him a ride home. Frazier claimed that, after driving out of the parking lot, the victim asked him to drive for a while, in spite of the fact that he was intoxicated and had told her he had no valid driver's license. The defendant also claimed that he did not pull over when her father tried to flag him down, and when the police joined the lengthy, high-speed chase, because the victim directed him to do so. Plainly, the jury could find this account wholly implausible.
Even leaving aside Frazier's own dubious explanation of the events that Halloween night, there was other substantial evidence from which the jury inferred his guilt. Frazier entered the vehicle at Wal-Mart on the driver's side and sat in the rear seat directly behind the victim, an action consistent with an abduction under the threat of violence. Indeed, if the victim had volunteered to give Frazier a ride, he likely would have sat in the front passenger seat. In addition, Frazier was arrested carrying a knife locked in the open position, a development wholly consistent with the victim's account. We add that, given his intoxicated state, the very fact that he was driving suggested he took control of the car by force and against the victim's will. Finally, and perhaps most importantly, Frazier's long and harrowing flight from the police—at speeds up to 100 miles per hour—was strong evidence of consciousness of guilt, as this Court has repeatedly held. See, e.g., United States v. Blakey, 960 F.2d 996, 1000 (11th Cir.1992) (evidence of flight is admissible to demonstrate consciousness of guilt and thereby guilt itself); United States v. Beard, 775 F.2d 1577, 1581 (11th Cir.1985) (evidence of flight can raise inference of consciousness of guilt); Monnette v. United States, 299 F.2d 847, 851 (5th Cir.1962) (flight from law enforcement officers is evidence of guilt).
Thus, given the substantial evidence presented at trial from which Frazier's guilt could be inferred, and the exculpatory hair and semen testimony actually presented, we find it exceedingly remote that the jury's verdict would have been different even if Tressel's "expectancy" opinion had been admitted. Its exclusion did not have a substantial impact on the outcome of the case, nor are we left with grave doubt that the case's outcome was affected. Any claimed error was harmless. See, e.g., United States v. Darwin, 757 F.2d 1193, 1204 (11th Cir.1985); United States v. Vesey, 338 F.3d 913, 918 (8th Cir.2003); United States v. Smith, 736 F.2d 1103, 1108 (6th Cir.1984).
It is true that the trial judge did not make an explicit determination on the record as to Lanning's and Onorato's qualifications, or concerning the reliability of their opinions, and doing so may have been the better course here. Nevertheless, we are not persuaded that the district court, when faced with no objection, was obliged to formally memorialize its determinations regarding qualifications and reliability on the record. See, e.g., United States v. Locascio, 6 F.3d 924, 938-39 (2d Cir.1993). Here, then, we examine the district court's implicit rulings that Lanning and Onorato were qualified and their opinions were reliable for plain error. We find plain error only where (1) there is an error; (2) the error is plain or obvious; (3) the error affects the defendant's substantial rights in that it was prejudicial and not harmless; and (4) the error seriously affects the fairness, integrity, or public reputation of a judicial proceeding. See United States v. Chisholm, 73 F.3d 304, 307 (11th Cir.1996).
After reviewing the testimony offered by experts Lanning and Onorato, we conclude that the district court did not commit plain error in failing to exclude their testimony because they were unqualified or because their opinions were unreliable. As discussed supra, both Lanning and Onorato demonstrated expert qualifications before offering any opinions, and provided specific and detailed quantitative bases for their opinions, in marked contrast to Tressel. There was no error, let alone one that was plain or obvious. Moreover, we can discern nothing that calls into question the fairness, integrity, or reputation of the judicial proceeding.
R7 at 79-81.
Of course, the procedural handling of an objection to proposed expert testimony is a matter committed to the trial court's discretion, and a formal Daubert hearing will not in all cases be necessary. In some cases, an evidentiary hearing is unnecessary because the parties' reciprocal submissions are sufficient to enable the court to resolve the reliability issue without taking live testimony. See Kumho Tire, 526 U.S. at 152, 119 S.Ct. at 1176 (stating that trial courts must retain the discretionary authority "both to avoid unnecessary `reliability' proceedings . . . and to require appropriate proceedings in the less usual or more complex cases where cause for questioning the expert's reliability arises").
Fed.R.Evid. 403. We review a trial court's exclusion of a relevant and reliable opinion pursuant to this rule under the abuse-of-discretion standard. See Old Chief v. United States, 519 U.S. 172, 174 n. 1, 117 S.Ct. 644, 647 n. 1, 136 L.Ed.2d 574 (1997).
Def. Ex. 2, at 2-3.
Similarly, I do not agree that Tressel's opinion could have properly been excluded under Rule 702 on the ground that it does not "assist the trier of fact to understand the evidence or to determine a fact in issue" because "Tressel's imprecise opinion easily could serve to confuse the jury, and might well have misled it." Ante at 1266. As the Supreme Court made clear in Daubert, the requirement that expert testimony "assist the trier of fact" "goes primarily to relevance," 509 U.S. at 591, 113 S.Ct. at 2795; it is not a requirement that expert testimony be given in specific and certain terms. Again, if the ambiguity of expert testimony, and its concomitant potential to confuse the jury, is to form the basis for its exclusion, this ruling would properly be made under Rule 403, not Rule 702.
On the other hand, neither do I agree with Judge Birch's characterization of Tressel's opinion as "qualitative." In expressing his opinion that hairs or seminal fluid "should have been" transferred or that some transfer "would be expected," Tressel was making an inherently probabilistic statement. At minimum, it suggested that it was "more likely than not" (i.e., something more than a fifty percent chance) that such transfers would have taken place. Such a statement is general, and non-numerical, but it is certainly not "qualitative."
In any event, the court did not preclude Tressel from making these foundational statements, but instead precluded him from testifying that either hairs or seminal fluid "would be expected" in this particular case, an opinion that is an analytical chasm away from hairs and seminal fluid being "frequently found" in sexual assault cases generally. Among other patent logical gaps, Tressel never explained how his ultimate opinion was affected by the victim's claim that Frazier never ejaculated, nor did he account for the fact that the search for forensic evidence included the victim, her clothing, and the car, but not, apparently, Frazier or his clothing. Even if the circumstantial facts upon which Tressel relied are entirely true, and Tressel had shown them to be so, they would not establish the reliability of his opinion that some hairs or seminal fluid "would be expected" in this case.
During the Daubert hearing, Tressel expressed his opinion that the investigation of the crime scene was "thorough" and that proper "protocol for [a] rape examination was followed." Id. at 22 ("the proffer"). Defense counsel then asked Tressel whether, based on all the information he reviewed about the crime, he had an "opinion as to whether or not the description of the sexual assault provided by [the victim] ... [was] accurate?" Id. at 23-24. Tressel responded that, "based on my review of the available documents, it is my professional opinion that there is no forensic evidence to substantiate the claim of rape in this case." Id. at 24. Asked if he had "an opinion about whether or not a rape occurred," id. at 25, Tressel responded that he "s[aw] no forensic evidence to substantiate the claim of rape in this case," id. Based on where the sexual assault allegedly occurred [the passenger compartment of a small car], the amount of sexual contact involved, and the evidence examined by Tressel, he stated that he formed his conclusion because "[t]here should have been some transfer of either hairs, fibers or fluids between the victims in this case." Id. at 27 (emphasis mine).
Recall that the FBI laboratory found absolutely no transfer of hair (pubic, body, or head) or fluid, despite a closed and confined collection site and meticulous collection protocol. See R9 at 343-44, 352, 356-58.
R5 at 35-38.
The academic literature relied upon by Tressel support his contention that the following types of evidence "appear with frequency in sexual assault cases": "hairs, fibers, blood, semen, and saliva." ROBERT R. HAZELWOOD & ANN WOLBERT BURGESS, PRACTICAL ASPECTS OF RAPE INVESTIGATION: A MULTIDISCIPLINARY APPROACH 97 (1987). In fact, "[t]he type of physical evidence probably most frequently associated with sexual assault investigations is semen." Id. at 111. Moreover, "especially if there was physical force, hair is frequently found as evidence." JAMES E. DOYLE, WISCONSIN DEP'T OF JUSTICE, PHYSICAL EVIDENCE HANDBOOK 138 (5th ed.1993).
Maj. Op. at 1264 (emphasis mine).
A review of the following quoted portions of the Daubert hearing, however, clearly demonstrates that the trial court did in fact require a
R5 at 64, 66-69 (emphasis mine).
Id. at 44-46 (emphasis mine). At this juncture, as an officer of the court, the prosecutor, who was well aware of the scientific literature and its inconclusive nature, as discussed below, should have advised the court of same so that the court could have made a fully informed judgment as a gatekeeper. I find the prosecutor's failure to be forthcoming a serious ethical lapse. See note 11, infra.
While limited in scope, application, and probativeness, examples of the scientific literature available (other than the two sources relied upon by Tressel) are principally two academic articles. One article studied the rate of pubic hair transfers "following one episode of sexual intercourse by each of 15 volunteer test couples"—a small sample size in a controlled environment. Mary-Jacque Mann, Hair Transfers in Sexual Assault: a Six-Year Case Study, 35 J. FORENSIC SCI. 951, 953 (1990). This study admitted that "[p]ublished controlled hair transfer studies are a valuable source of clarifying information, but... such studies are disappointingly few in number." Id. at 951. This article also conceded that "controlled transfer studies and the results of casework examinations should not be given equal weight." Id. at 955 (emphasis mine).
A second, more recent article measured "the frequency of pubic hair transfer between a limited number of consenting heterosexual partners"—another admittedly "limited study." David L. Exline, M.S.F.S., et al., Frequency of Pubic Hair Transfer During Sexual Intercourse, 43 J. FORENSIC SCI. 505, 507 (1998). The article made two conclusions: "[f]irst, pubic hair transfer does occur during sexual intercourse, and is significant forensic evidence when found. Second, further studies in the area of hair transfer frequencies are needed to better evaluate hair transfer evidence." Id. at 507. While this study explained that "[i]t is well known that pubic hairs may be transferred during certain sexual offenses," it also admitted that "[f]ew controlled studies have been reported which could allow predictions of how frequently examiners might expect to observe such transfers." Id. It also conceded that "[w]ithout additional studies, it is not clear that our results with a limited number of people would be found if larger numbers of individuals were examined, even under the controlled conditions described." Id. (emphasis mine). Importantly, the article did note that "[p]rior to this study [i.e., before 1998], research concerning the transfer frequency of pubic hair was based on either forensic casework or limited human subject data" and "[u]ntil now, when asked in court about the frequency of pubic hair transference,
The relevant academic literature cited by these studies also reveals significant inconsistencies in reported transfer rates between these and the few other studies that have been performed. Indeed, the rates ranged from zero to forty-five percent. See id. at 506; Mann, supra, at 953. If applied rigidly to specific cases of alleged rape, each with their dissimilar circumstances and variables, these studies may be a significant source of potential error. Overall, the paucity of, inconsistency between, and lack of appropriate controls and common situational variables in these studies demonstrate that the body of knowledge in this area is still in its infancy. By comparison, the qualitative testimony offered by Tressel would have been relatively inoffensive, unobjectionable, and hardly polemical, as evidenced by its wholesale endorsement by one of the field's leading textbooks.
R9 at 359-64 (emphasis mine).
Id. at 364-65 (emphasis mine).
R5 at 52-54, 56-57 (emphasis mine).
R9 at 407-09 (emphasis mine).
Id. at 417, 419, 428-29.
The search warrant described the "activity" in the Ford Escort as follows:
The Advisory Committee Notes to Rule 702 delineate five additional factors in determining reliability: (1) Whether the testimony "grow[s] naturally and directly out of research [experts] have conducted independent of the litigation, or whether they have developed their opinions expressly for purposes of testifying"; (2) "Whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion"; (3) "Whether the expert has adequately accounted for obvious alternative explanations"; (4) "Whether the expert is being as careful as he would be in his regular professional work outside his paid litigation consulting"; and (5) "Whether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give." Fed R. Evid. 702 advisory committee's notes, 2000 amends. (citations and internal quotation marks omitted).