*4 MARCUS, Circuit Judge: Richard Junior appeals Frazier his con- viction for kidnapping. He claims that the *5 district court abused its discretion ex- cluding certain fo- investigator, rensic allowing while gov- present ernment to expert evidence on the thorough same issue. After review of the record, we conclude that the district court’s evidentiary rulings an were neither discretion, abuse of “manifestly nor erro- Joiner, neous.” Gen. Elec. Co. v. 522 U.S. 136, 142, 512, 517, 118 S.Ct. 139 L.Ed.2d (1997) (citation omitted). gener- More ally, we reaffirm the principle basic 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 at S.Ct. Accordingly, we affirm. I.
A. defendant, The Frazier, Richard Junior 6, 2000, charged was December grand jury sitting in the Northern District Kearns, Stephanie Georgia Federal in a Public De- one-count indictment with fender, Inc., Program, Federal Defender kidnapping in violation of 18 U.S.C. Atlanta, GA, Defendant-Appellant. 1201(a)(1).1 for § The indictment alleged also * Jr., Judge statute, Pryor H. William became a kidnapping § member 1. The 18 U.S.C. 20, 2004, February provides pertinent part: of the Court on in which was argued. after partic- (a) seizes, this case was did confines, He not unlawfully Whoever in- ipate abducts, veigles, in decision of this decoys, kidnaps, case. or carries 3559(c), initially Frazier told the victim that he pursuant U.SiC. .§ his statute, County, had wanted to visit son in White the defendant “three-strikes” qualifying Georgia, eventually but directed her off convictions for multiple prior serious, paved a life road and onto a dirt road felonies mandate lead- violent secluded, guilty ing to a wooded After plea He entered a area. sentence.2 location, charges they reached this Frazi- vigorously contested the deserted er instructed the victim to turn engine trial. off, seat, the front passenger moved into case are relevant facts this sad hand, positioned knife in his right o’clockon eight time after these. At some pants to remove her ordered victim 31, 2000, eigh- evening of October underpants. She The de- disrobed.. (“the victim”) teen-year-old student clothing his fendant then removed own Cornelia, store stopped at Wal-Mart sexually knifepoint, assaulted raping her of Halloween Georgia prices to check repeatedly variously her a crime of account, candy. According the victim’s unspeakable brutality, the front of the by the defendant after she was abducted vehicle and in back seat of her car. leaving the Wal-Mart. She walked her victim, According to the the defendant door, she was car and unlocked when being ejaculate apologized.for not able to Frazier, defendant, by the who confronted (cid:127) drunk. because was hand carrying right a knife complet- victim: After the sexual assaults were pointed at her. He asked the ed, dressed, go?” I took you take me where want defendant control ‘Will life, car; Highway Fearing her the victim the and drove north on U.S. R.7 at 149. *6 and Frazier’s demand sat in toward North Carolina. Frazier complied at twice, stopped Citgo the first at a convenience the driver’s seat. Frazier entered vehicle, directly bought gasoline, behind store he and then back seat of the sat where victim, bought out he ciga- and directed her to drive at Circle-K store where the At made the stops, rettes. both Frazier parking the lot.3 Robbery away or 1979—#K-45837 and and holds for ransom reward K-45838— Court, . County Superior person, except by case any Force—Hall otherwise .the thereof, Gainesville, Georgia; parent a minor the when— (1) person willfully transported Robbery 1980—# 11684—Armed the —Houston commerce, Court, foreign regardless County Superior Perry, Georgia; interstate person Aggravated when of whether the was alive Assault— 1980—# 80R-23— Cordele, Court, boundary transported County State if the Crisp Superior across a person transportation , was Georgia; alive when the began; Aggravated As- 1993—# 93-CR-94-S— County Superior sault —Habersham imprisonment any Clarkesville, punished by Court, for shall be Georgia. and, years if death of term of or for life the results, punished by person shall be 3. A surveillance video camera trained on imprisonment. parking played jury was or life Wal-Mart lot for death 1201(a). tape § video showed the victim 18U.S.C. at trial. The ap- walking and alone toward her vehicle alleged, specifically, that 2. The indictment car. The proaching driver’s side of the previously had been convicted Frazier coming approach, tape also revealed Frazier’s following violent felonies: victim, ?erious showed Frazier and from behind standing side Robbery on driver's and the victim 1974—#9519—Armed —Gwinnett However, Court, Lawrenceville, entering the video County Superior before the car. obscured, Georgia; tape partially was Frazier’s view visible, Robbery—Hall County the video hands were not and 1974—# Su- did 43674— Court, Gainesville, Georgia; the knife. perior show accompany car, him into the attempt stop convenience victim victim’s but Frazi- stores, warning anything pull her not to do deputy er did not over. The called for 162,163. “stupid.”4 at back-up R7 joined and additional officers chase, pursuing the car victim’s with their meantime, the In the victim’s fiancé and lights Still, and sirens activated. Frazier family became alarmed over her members stop; did not instead he accelerated the fiance, Defoor, Anthony absence. Her ex- vehicle, leading police on a chase at after pected to meet her she visited the speeds up per to 100 miles hour for Wal-Mart, o’clock, and eleven had be- many miles, passing signs, stop repeatedly very began He come concerned. search- line, crossing the running center red ing parents. for and contacted her her lights without slowing stopping.5 report mother called The victim’s Twice, when law enforcement officers tried father, her missing, Larry Kimsey her off, to cut him Frazier tried to hit their (“Kimsey”), drove off search his cars. Frazier flight high continued his at daughter. Kimsey spotted his daughter’s Carolina, speeds, crossing into North vehicle, miles, followed it for several driving north North Carolina Route 28. it, alongside noticing pulled up that his Driving high speed twisting, on this daughter front passenger was seat road, winding Frazier frequently swerved stranger driving was the car. He lane, proper out of the eventually until unsuccessfully attempted flag his down lost control of the vehicle and crashed into daughter’s by driving alongside car power pole alongside Route 28. The vehicle, flashing his brake roll- lights, and officers emergency radioed for medical and ing down and motioning his windows fire authorities. arm stop. Kimsey his car to con- vehicle, mile, tinued to chase the mile after police immediately removed both per Indeed, speeds up 80 miles hour. Frazier and the victim from the car. After Kimsey pulled alongside daugh- being when why asked the vehicle was fleeing car, ter’s police, defendant and cut swerved the victim replied that the de- Eventually, him off. although he un- kidnapped fendant had her the Wal- *7 car, the stop Kimsey able was to Mart knifepoint. able at When Frazier was passing attract the attention of a deputy immediately arrest, searched following his flashing by repeatedly sheriff his brake the officers discovered two knives his lights. person. One was knives found in right hip pocket, his open locked in the driving At the point, officer a position partially with a serrated blade. marked car made police a u-turn be- gan chasing the two vehicles. The deputy The victim transported was to a local flashing lights where, activated his blue an hospital because she claimed to victim, 4. An video Kimsey, in-store surveillance camera in the and three the officers in- captured the Circle-K Frazier and victim in Wilson, volved in the deputy chase: Shawn a store, played that convenience and was County sheriff with the Rabun Sheriff’s De- jury. videotape the showed the en- two partment, Sergeant Terry Smith of the Macon tering purchasing cigarettes. the store and County Department, Sheriff's and Donald videotape, visibly On the the victim was not Willis, deputy a sheriff with the Macon Coun- Frazier, by restrained and the store clerk tes- addition, ty videotapes office. In Sheriff's noticeably tified that did the victim not seem by equipment recorded video in the vehicles distressed, upset readily appar- was nor Sergeant Deputy Smith and Sheriff Willis being by ent that she was directed Frazier. trial, played were and reinforced the offi- cers’ accounts. trial, 5. At consistent accounts of the defen- flight given police by dant's from were the The victim also conceded assaulted, hospital. she was sexually have been cigarette for had lit a the defendant she Nurse Exam- a Assault by Sexual treated they together. in the car while were victim and examined the The nurse iner. removing kit loose rape prepared evening Frazier the after his arrest On and from her cloth- the victim hairs from and, Mi- receiving after questioned, was for fluids. The also swabbed ing. gave an warnings, She he account randa7 that the vic- later testified previous evening nurse-examiner the differed dramati- Frazier cally consis- from the victim’s account. and demeanor were tim’s manner agent interviewing an FBI him that told post- as a she described tent with what day, all drinking had beer he been demeanor, and said that stress traumatic consuming á buzz on” after good “had bruising traumatic victim had suffered R7 Fra- twelve-packs. three testing of the swab Later to her cervix.6 sitting he on a zier recounted that was from the ex- recovered and hair evidence Wal-Mart, wearing a bench outside any hair to establish that failed amination “Official Booze Guz-' hat that read baseball person from the victim’s recovered or fluid Ass Chugging, Sucking, Sud zling, Beer Similarly, clothing matched Frazier’s. he Kicking Party Cap,” id. at when evidence, includ- pieces of although various victim, complete approached by was removed ing upholstery, were seat with stranger, initiated conversation who car, no hair or fluid evidence victim’s give him a ride back him and offered to that matched the defen- was recovered residence. dant’s. offer, accepted according After he trial, she testified at When victim Frazier, around; began when they to drive account of these events gave a detailed ex-girlfriend Sil- Frazier mentioned those recounted consistent with was Carolina, va, he wanted to North whom police father, three of by her visit, him there the victim offered drive of Frazier. On pursuit involved told The defendant also accepted. he cross-examination, vigorously chal- Frazier him to drive the FBI that victim asked elicit- account. Frazier lenged the victim’s car, he had consumed a though even point at some after the victim that ed from her had told large amount alcohol and abduction, she retraced night her li- not have valid driver’s did taken she and Frazier had the route re- Finally, that he Frazier said cense. officers, initially law enforcement by the when chased pull fused over the dirt road on which to locate unable police because victim’s father and *8 place. had taken Frazier’s sexual assaults stop. According to told him not the victim regarding victim questioned the counsel Frazier, stop told him the victim not. recount, assaults, asking her to the sexual did, if he her father car because detail, sexual acts that nearly a dozen in Id. at 217. There is his ass!” “would beat vehicle, as in front of the well occurred acknowledged to that Frazier no evidence Frazier elicited as in the back seat. to hit or cut FBI that he had swerved any police of the Kimsey fact that the victim had mentioned either or off chasing the first Frazier denied sexually officers him. she had been assaulted sexual contact had occurred. doctor, male, her at the who examined Arizona, v. U.S. 86 opinion regard- 7. See Miranda not offer an 6. The nurse did cervix, (1966). bruising ing this L.Ed.2d 694 the cause of S.Ct. by stating only injury not caused the automobile accident. investigations. forensic Tressel re- B. counted the training forensic had re- trial, gave Frazier Prior to notice ceived, training which included in crime government that he intended to offer the processing scene for his work with the Tressel, of Robert a fo- County Department; Cobb Police addi- investigator police rensic and former offi- University tional education at the of Geor- essence, In prepared cer. Tressel was in gia crime analysis processing; scene and testify that none of Frazier’s hairs bodi- “training University Virginia and at the victim, ly fluids were recovered through Quantico, the FBI laboratory, on car; her clothes her that “it would be crime processing.” scene R5 at 12. Tres- expected that some transfer of either hairs sel also stated that he had “been involved case,” or seminal fluid would occur in this put criminalistic studies that were on 2; Def. Ex. and that “there is no forensic the FBI at various law enforcement acade- evidence to substantiate the claim of rape id., in the Georgia, mies” state of and object in this case.” Id. The of this testi- explained that police maga- “the chief of and, indeed, mony the basic Fra- thrust you zine that has sections on it where can defense, zier’s was that the victim fabricat- conduct kind of an study at-home program ed her account of kidnapping rape and you go through you where have to punished by order to being par- avoid her questions answer certain everything. violating ents for her curfew. To establish I have been involved in that.” Id. at 13. defense, hoped Frazier to undermine Tressel said that he taught had classes credibility victim’s account of investigation crime scene the North abduction by, among and rape other Central Law Academy Enforcement and at things, suggesting that she had lied about the Northwest Georgia Law Enforcement the sexual assaults. Academy, qualified had as an various state and federal courts. timely The Government moved in li- general After presenting qualifica- his mine to exclude Tressel’s under tions, that, opined Tressel based all of Pharmaceuticals, Daubert Dow Merrell him, the information that was available to Inc., U.S. S.Ct. it appeared that the forensic investigation (1993), L.Ed.2d 469 and the district court alleged sexual assault had been conducted a thorough hearing Daubert be- performed properly thoroughly. fore hearing, trial. At the Tressel testified Tressel testified he saw “no forensic police he had been a officer in Cobb rape evidence to substantiate the claim of County, Georgia, for more than a decade. in this case.” R5 offered Tressel For years, ten Tressel as an worked inves- given allegations view of sex- tigator County’s Against in Cobb Crimes victim, ual assault made “[t]here Unit, investigated Persons which homi- should have been some transfer either cides, assaults, rapes, other sexual hairs, fibers fluids between the victims armed robberies. during Tressel said that Or, put [sic] this case.” Id. at 27. as he County tenure in Cobb he worked on *9 it expert report, in his “[w]ith the amount cases, thousands of including between 150 of activity sexual ... described would be and addition, 250 sexual assault In cases. expected that some transfer of either hairs he worked years for thirteen in the Cobb or seminal fluid would occur.” Ex. 2 Def. County Medical Examiner’s Office. at 2. opined Tressel also after re- At testified, the time he viewing Tressel was report of the victim’s medical self-employed examination, as a consultant in the area he report- concluded that the a of hair or seminal the vic- that showed transfer consistent with were ed conditions in- fluid. sexual that she had had account tim’s boyfriend day her
tercourse with “I don’t think Tressel also observed Tressel ex- examination. preceding the the rates anybody has ever studied of condition would the victim’s plained evidence, of hair transfer” and clarified a sexual with either assault consistent be any that he was not familiar with scientific contact de- sexual she or the consensual hair in literature on the rate transfer of scribed. R5 sexual assault cases. at 37. Tressel (albeit experience only as a again cited his cross-examination, government On matter) general and Hazelwood and the founda- from Tressel sought elicit Burgess text as the foundation for his acknowl- opinions. Tressel tion for his opinion frequently that seminal fluid was first, opin- for his edged, that as medical found in sexual assault cases. in ions, training performing he had no or, generally, specifi- medical examinations government.then explained The rea- performing pelvic in examinations cally, underlying motion exclude sons its victims. Tressel female sexual assault opinions in these terms: Tressel’s education, had train- that he no conceded you If look back what the witness doctor, he experience as a and that ing or stated, says he the forensic a physician. was not during commonly analy- found most investigation a transfer rape sis of Tres- government questioned also perpetra- hairs from the victim length concerning bases sel at some perpetrator tor and from the vic- the most opinions for that hair was his tim. found common of forensic evidence form investigations, placed and that “it would There is no evidence before rape hearing as a basis for transfer either at this expected some a of this evidence that fluid would occur.” admission
hairs seminal hair found means neces- lack of eüdence experi- that he relied on his Tressel said sarily place. that no séxual assault took Aspects text Practical ence entitled placed that’s been There no evidence Investigation, Rape Hazel- Robert Honor, your you you, before leads Burgess, and Ann for the wood that hair will be transferred conclude of hair is the form of the transfer percentage in X of cases.... commonly found in evidence most forensic to clar- there is no transfer rape investigations.8 When asked All we have is here, commonly hair is most ify provided in his what during rape general piece of evidence specific foundation found more when investigation. No evidence that opinions, single identified inves- Tressel found, on, commonly no says hair he it’s tigation had in which most worked found that means that it’s the inves- evidence that during evidence was recovered cases, percent percent cited to no tigation rapist. of a serial He cases, cases, percent investigation, and no case or made other found way seminal fluid evidence is any the number quantify effort percent of the cases.... personally he was involved two cases See offered into evidence. proffer this or other text which Frazier did not support opinions. Cunningham, into evidence to Tressel's & Carl L. Crime Richard H. Fox said that he relied on. Tressel also Physical another Evidence Handbook Scene Search text, Physical Evi- "Crime Scene Search (U.S. 1973). Dept, of Justice *10 Handbook, by Cunningham,” atR5 dence Carl The district court ruled that Tressel was qualified testify to explain and could the is no evidence routinely There that procedures you standard rape investigation employed will have hairs investi- gating or hairs found. the assault, transferred None. crime scene of a sexual the Nothing Court that before effect. that Tressel could recount that no or hair
fluid matching Frazier’s was found on the scene, and that “the forensic evidence most Again, ... there is no evidence that a commonly during analysis found the of a present lack of seminal fluid or found rape investigation is the transfer of hairs.” necessarily means that no sexual assault Def. Ex. however, 2.9 Conversely, place. or sexual contact took district court ruled that Tressel would not government Id. at 44-46. The argued permitted be opine based on the provided Tressel no foundation or support, sexual by victim, activities described either from the relevant literature “it would be expected that some of transfer experience, his own for his specific opinion either hairs or seminal fluid would occur.” recovery of hair or fluid evidence added). (emphasis Id. Similarly, Tressel expected” “would be case like this one. permitted was not to opine objected The that the government also foren- Tressel’s sic proffered opinions medical evidence did not on substantiate the rape based claim, any lack training medical that “there the fact is no forensic evi- personally that he had not examined the dence to substantiate the claim of rape.” victim. Id.10 Specifically,
9. the district court ruled that can during hairs also be transferred a sexu- following testimony Tressel could offer the al assault clothing and can be found in the paragraphs based these taken from his perpetrator. both the victim and the report: Seminal are frequently fluids found in cases, thorough examination sexual especially [A] ve- assault motor when multi- performed by episodes ple hicle was Evidence activity [the] Re- of sexual occur and no covery Team. perpetrator. condom used These laboratory ... any [T]he was unable to find fluids can be found not in the orifices victim, pubic head or transfer hairs from the clothing but also on the worn Frazier, suspect, body Richard of [the both the perpetrator. victim and the victim], or to the interior of the vehicle. In review of the documents I have case, provided been appears on this it negative ... All were thorough [tests] for seminal investigation forensic and a thor- blood], [and fluid ough rape examination of the victim in this During rape investiga- ... the course performed. case were tion, investigator’s it responsibility is an Def. 2 at 2. Ex. pertinent collect all evidence that can be of Specifically, judge the trial ruled that Tres- determining assistance whether or not an sel could not offer based on the alleged sexual assault has occurred. It is following paragraphs expert report: of his duty investigator to substantiate assault, alleged claim sexual whether With the activity amount of sexual de- rape sodomy it charges, through be affidavit, scribed in the search warrant collection of forensic evidence. expected that some transfer of The commonly forensic evidence most either hairs or seminal fluid would occur in during analysis rape found of a investi- this case. gation is the transfer of hairs from the resulting laboratory findings in this case, perpetrator victim to the and from the do not substantiate rape the claim of perpetrator through to the victim. These hairs are findings forensic evidence. All routinely pubic taken, hairs that samples become trans- were all of which during ferred sexual intercourse. essentially Head are rape investigation routine *11 found, there, Tressel’s that’s what’s and if it’s not court excluded The district about the absence proffered opinions I don’t I rape, believe there was it found fluid evidence because hair and going am not to allow that.... trial to be unreliable. The opinions you any If have scientific evidence generally that Tressel was court said while you that would indicate should [find fo- investiga- expert forensic qualified as an evidence], rensic I no I problem, have as tor,11 any specific provided he had not said, testifying they with his that’s what or other- quantitative, empirical basis— for, you trying look but when start Precisely because opinions. wise—for his no prove they that there is case because percent- in what specify Tressel could not it, you got didn’t find to have some- might fluid age of cases hair or evidence thing just opinion. more than his You recovered, reasonably expected to be be something study. showing need some recovery of such evi- opinion would mislead expected”
dence “would be I have no idea whether —I don’t have was no basis jury. Simply put, there is, enough to tell me how often that reliability of Tressel’s assessing knowing, I have no basis of and based reasonably ex- might of what be upon you’ve presented today, what I meaning. or even its exact pected, not and not allow it. I don’t will explained its decision The district helps jury.... think that in these terms: most, going At it’s a method of any there is scientific [I]f credibility, trying and I hesitate to start you of the time percent shows that say that a is not witness credible hair, problem I would have no pubic find I expected because would have some that, just study. he has no He with but hair to found. pubic be very says that in a nebulous statement percentage I don’t what the is. know generally. of—it wasn’t It
that he used
you going
say
Are
then
is a 50
there
commonly
found.
credible,
percent chance
she’s
Well,
commonly
may
not be a
percent
a 25
or there’s a
[chance]
there’s
him
problem
say-
I have no
with
case.
percent
she’s not
for,
[chance]
credible[?]
ing
they’re looking
but I
that’s what
difficulty
just
I
saying
him
I have
with
problem
do have a
with
negative
finding
procedures,
medical records indicate that
[The victim’s]
were
on
fluid or hair from the
she had sexual intercourse
transfer of seminal
10/29/2000.
Ex. 2 at 2-3.
medical exami-
Def.
defendant in this case. The
only
evidence of
nation of the victim
shows
explained:
11. The district court
part
activity
of the victim at
sexual
taking
prior
some time
to the examination
you
think that he’s an
in what
I
for,
finding
bruising
place. The documented
normally
any
look
and I don’t have
major
labia
indicates that the
difficulty
around the
his area
with that. That's where
substantially
bruising may
older than
expertise
is.
only a few hours.
expertise
my
problems
of the available doc-
with his
Based on
review
I have no
uments,
very qualified
my professional opinion
obviously
criminal
it is
he is
investigator,
investigative proce-
and as to
there is no forensic evidence to substantiate
dures,
here we were
rape in this case. The
but that's not the—if
the claim of
activity
dealing
procedures
were used and
type
indication that
of sexual
inadequate,
they
adequate or
the labia
whether
were
occurred is the redness around
good expert
major
I would consider him
and the redness of the cervix. These
then
themselves,
testify
injuries,
can oc-
to those matters.
two
in and of
activity.
during
R5 at
cur
routine normal sexual
*12
objection'.
government
those circum-
The
observed that
think that under
don’t
admit it.
it would call her on rebuttal.
I would
stances
R5 at 68-70.
Anthony
The defense also called
Onora-
to,
a forensic DNA examiner
the FBI’s
also excluded Tressel’s
judge
trial
laboratory.
that he
explained
Onorato
had
qual-
not
opinions
medical
because was
in the Frazier
received evidence recovered
expert by background,
a medical
ified as
investigation
presence
and tested
for the
experience. The court ex-
training or
fluids,
bodily
including
blood and semi-
allow a medical doc-
that it would
plained
identify
nal fluid. Onorato was
unable
issue, but that
testify on the
Tres-
tor to
semen,
identify any
nor was he able to
background
were
sel’s
cross-examination,
govern-
blood. On
the
simply inadequate.
sought
question
ment
as to the
Onorato
trial,
not to call
Frazier chose
Tressel
At
frequency
finding
of semen.
all,
clearly
that no
at
but did
establish
objected,
Frazier
that
again
arguing
matching
hair
Frazier’s
seminal fluid or
government
seeking
was
to use Onorato as
recovered, during
investigation by
expert
judge stated,
trial
witness. The
laboratory
FBI
technicians who
calling two
“well,
determination,
that’s a factual
I will
investigation.
on the
The de-
had worked
Nevertheless,
allow that.” R9
359.
Lanning,
called Karen
an FBI
fense first
government
line of
ceased this
cross-exam-
examiner, who
that
hair and
testified
fiber
ination,
that it would call Onora-
observing
hair, clothing, and
analyzed
automobile
she
to on
it all at
rebuttal “and do
once.” Id.
during the
in-
collected
Frazier
upholstery
rested,
After
govern-
the defense
and that none of the hairs
vestigation,
Lanning
ment announced that it would call
Frazier’s. On cross-
matched
recovered
and Onorato
Frazi-
examination,
Lan-
as rebuttal witnesses.
government
asked
objected,
only that
often,
arguing
govern-
er
experience,
in her
she
ning how
give
hairs. The
ment had failed to
notice of its intent
a transfer of
defense
found
Lanning
Lanning
expert
that
had
to use
or‘
objected, observing
been
Onorato
wit-
witness,
nesses,
fact
and not as a
in violation of
only as a
Rule
of the Fed-
called
judge
trial
eral
expert. The
overruled
Rules
Criminal Procedure. The
general
Lanning testified
objection,
suggested
after which
defense
while the text
of the Rule 16 referred
to disclosure re-
found hair transfers
10%
she
on,
quirements
government’s
and found no hair
for the
case-in-
cases she worked
chief,
government
calling
time.
these
wit-
90% of the
When
rebuttal
question Lanning
spirit
further
notice violated the
attempted
nesses without
further,
significance
finding
suggested,
no hair
the Rule. Frazier
about the
case,
objection
government
renewed its
it would be unfair to allow the
the defense
Lanning
experts
opine
signifi-
had not been called as an
to call these
on the
expert.
agreed
The district court
she
cance of the
of hair or fluid evi-
absence
dence,
had been called as
fact witness and could
since Frazier’s
—Tressel—
testify
precluded
opining
not
on cross-examination as to stud-
had been
on the
transfers,
subject.12 Notably,
nev-
sustaining
ies done on hair
same
the defense
chief,
objected
following
say
in the
terms:
the Rule does
in their case in
but
Frazier
government
honor,
I
here
think that what the
just wholly
Your
I think that it’s
doing
playing games
attempt
[the rule]—
to avoid
government to
to use
unfair for the
defendants,
sandbag
[sic]
these witnesses that I’ve called as fact wit-
Now,
nesses who were under their
R9
359-60.
control'—
Intercourse,”
use of Sexual
which found no trans-
objected
government’s
er
grounds
pubic
partners
or Onorato on
fer of
hairs to the female
Lanning
qualified
cases,
as an
of them was
study
either
82.7% of the
and con-
*13
opinions were based
or that their
expert,
pubic
cluded that a failure to transfer
hair
or unsound
methodologically unreliable
on
did not indicate that no intercourse had
overruled
The district court
foundations.
place.
taken
Consistent with the latter
only
objection, reasoning that Rule
study, Lanning opined that the failure to
calls
government
notice when the
requires
any of Frazier’s hair did not
recover
neces-
case-in-chief,
here
during its
expert
sarily mean that no sexual contact had
were called on rebut-
plainly
the witnesses
between Frazier and the vic-
place
taken
tal.
tim.
rebuttal,
experi-
her
Lanning
On
recited
cross-examination, Lanning
On
observed
stating that she
qualifications,
ence
if
sexual contact occurred within an
Associa-
a member of the Midwestern
area,
opposed
open
enclosed
to an
and had testi-
tion of Forensic Scientists
likely
it
space, would be more
trans-
more
expert
as an
forensic scientist
fied
in
ferred hairs would remain
that area.
in
and feder-
than one hundred times
state
She also said that the likelihood of a hair
country. Lanning had
al courts across the
might
transfer
increase as the duration of
years in the Trace Evidence
worked for six
range
the sexual encounter and
of activi-
in
laboratory Washington,
FBI
Unit of the
Lanning
ties increased.
also clarified her
D.C.,
just un-
working for
previously
after
testimony that
she found hair
earlier
years with the Kansas Bureau
der six
in
worked
transfers
10% of the cases she
she
Lanning stated that
Investigation.
on,
specifying that hair was
recovered
rejected
expert by
as an
had never been
rape
in
and 5% of the
cases
between 2%
court,
government proffered
and the
she worked on.
hair
in the area of
“expert
her as an
called
on
government
also
Onorato
R9 at
analysis”
investigation,
and forensic
rebuttal, and elicited that Onorato was a
objection.
without
Academy
of the American
of Fo-
member
that she was familiar with
Lanning said
Sciences,
Society
rensic
Canadian
of the rate of hair
various scientific studies
Science, and the American Soci-
Forensic
contact. She was
during
transfer
sexual
stat-
ety
Pathologists.
of Clinical
Onorato
Mary
study by
Jacque
with a 1990
familiar
expert
had testified as an
in
ed that he
in
Mann entitled “Hair Transfers
Sexual
in
serological analysis
approxi-
forensic
Assault” from the Journal
Forensic Sci-
courts,
and was an
in the
mately 15
no
hair transfers
pubic
ences which found
of semen on evi-
presence
search for the
in
of the
to the victim’s underwear
97%
that he had a
Onorato testified
dence.
study;
pubic
in the
no
hair
cases involved
degree
biology
in
and master’s
bachelor’s
combings
pubic
transfers in
of the victim’s
immunology
in
and micro-
degrees
clinical
cases; no head hair
hair in 96% of the
biology as well as in forensic science.
in
in the victim’s underwear
96%
transfers
years
for two
the crime
Onorato worked
cases;
pubic
no
hair transfers in the
of the
Police, and
Pennsylvania
State
lab
cases;
in 98.5% of the
victim’s outer wear
medical
approximately
years
two
no
hair transfers in the victim’s
head
University of Alabama at
center of the
Lanning
wear in 97% of the cases.
outer
spending approxi-
Birmingham, before
that she was familiar with a 1998
also said
Analysis
in the DNA
mately
years
five
journal,
entitled “Fre-
study
the same
prof-
During
government
of the FBI. The
quency of Pubic Hair Transfer
Unit
“in
excluding portions
as an
the search
fered Onorato
Tressel’s
evidence”
presence
for the
semen on
violated
rights
the defendant’s substantial
investigation,
again
and forensic
id.
because the heart of the defense turned on
objection. Onorato testified that
without
undermining
credibility.
the victim’s
See
present
he found semen
materials
Frazier,
United
States
F.3d 1262
75% to 80% the sexual assault cases
(11th Cir.2003). Following the issuance of
on.
observed that
in a
worked
Onorato
12, 2003,
panel’s opinion,
September
perpetrator
sexual assault where the
did
vacating
this Court entered an order
ejaculate,
recovering
the likelihood of
panel opinion
directing
that the case
*14
opined
semen would be reduced. He also
be heard en banc. See
United States
sperm
that the absence of
defendant’s
Frazier,
(11th Cir.2003) (en
that in sexual assault cases where there
multiple
penetration
were
erections and
We review for abuse of discretion
time,
period
over a
the chances of recov-
regarding
district court’s decisions
ering
prostate
a chemical emitted
admissibility
of expert
and the
P30,
gland,
would be increased. Onorato
Joiner,
reliability
of an
opinion.
that the likelihood of
bod-
finding
observed
141-43,
517;
522
at
at
U.S.
118 S.Ct.
see
ily
in the evidence he examined
fluids
Co.,
Carmichael,
also Kumho Tire
Ltd. v.
with the number of sexual
would increase
137, 142,
1167, 1171, 143
526 U.S.
119 S.Ct.
encounters.
(1999)
(explaining
L.Ed.2d 238
under
20,
trial,
Following Frazier’s
on June
Joiner,
appeals
apply
“courts of
are to
2001,
jury rejected
his defense and
‘abuse of discretion’ standard when review
guilty.
returned a verdict
Soon thereaf-
ing
reliability
district court’s
determina
ter, Frazier was sentenced to a term of life
tion”).
Indeed, the “deference that is the
parole, pursuant
imprisonment without
review,”
hallmark of abuse-of-discretion
statute,
the federal “three-strikes”
18
Joiner,
143,
517,
at
118
at
U.S.
S.Ct.
3559(c).13
timely appeal-
§
Frazier
U.S.C.
requires that we not
an
15,
reverse
evidentia
August
ed on
2001.
“
ry decision of a district court
‘unless the
panel
A divided
of this Court reversed
”
erroneous,’
142,
ruling manifestly
id. at
conviction, holding that
Frazier’s
the dis-
(quoting Spring
mission of
witness
dence,
controls the admission of ex
which
discretion.”);
abuse of
United States
testimony.
provides:
It
pert
(11th Cir.1999)
Paul,
906,
F.3d
909
175
scientific, technical,
special-
If
or other
(“This court reviews the district court’s
knowledge will
the trier of
ized
assist
expert testimony under
decision to exclude
evidence or to
fact to understand the
Federal Rule of Evidence 702 for abuse of
issue,
qual-
determine a fact
a witness
Gilliard,
discretion.”);
States v.
United
skill,
expert by knowledge,
ified as an
(11th Cir.1998) (“A
809,
dis
F.3d
education, may
experience, training, or
trict court’s decision to admit or exclude
testify thereto
the form of
re
expert
testimony under Rule 702 is
(1)
otherwise,
testimony
if
discretion.”).
viewed for abuse of
(2)
data,
upon
based
sufficient facts
product
is the
of reliable
application
The
of an abuse-of-
(3)
methods,
the wit-
recognizes
range
principles
discretion review
judge may
applied
principles
trial
ness has
possible conclusions the
reliably
the facts of the case.
methods
reach.
Thus,
abundantly
it
surprise
Court made
comes as no
Supreme
theAs
Daubert,
determining
admissibility
expert
compels
Rule 702
clear
702,
engage
under Rule
we
in a
“ga-
the critical
perform
district courts to
rigorous three-part
inquiry. Trial courts
concerning
function
the admis
tekeeping”
must consider whether:
sibility
evidence. 509
expert
scientific
(1)
testify
expert
qualified
7, 597, 113
at
n.
U.S. at 589 n.
S.Ct.
regarding the matters he
competently
required
The trial courts are also
(2)
address;
intends to
the methodolo-
function consid
play
gatekeeping
the same
gy by
which the
reaches his
admissibility
of technical
ering the
sufficiently
conclusions is
reliable as de-
Tire,
Kumho
evidence.
U.S.
inquiry
termined
the sort of
man-
at 1174. This function “inherent
119 S.Ct.
(3)
Daubert;
dated
the testimo-
trial court to conduct an
ly require[s] the
fact,
ny
through
assists the trier of
analysis” of the
exacting
foundations
scientific,
technical,
application of
they
to ensure
meet the
expert opinions
specialized expertise, to understand the
admissibility
under Rule 702.
standards
evidence or to determine a fact in is-
at 1257.
McCorvey, 298 F.3d
sue.
ga-
importance
Daubert’s
Chems.,
City
Tuscaloosa v. Harcros
requirement
cannot
tekeeping
be over
Inc.,
(11th Cir.1998)
158 F.3d
Supreme
stated. As the
Court framed
Daubert,
(citing
judge must assess
ask,
testimony
judge
example,
for the trial
methodology underlying the
engineering expert’s expe-
how often an
...
scientifically valid and
whether that
methodology
produced
rience-based
has
reasoning methodology properly
can be
results, or whether such a
erroneous
applied to the facts
issue.” Id. at 592-
accepted in the rele-
generally
method is
93,
1263 B. See Weinstein’s closing arguments. § 702.03[2][a]. Evidence
Federal
application
The
these basic
powerful
Because
principles yields the conclusion that
evi
misleading
expert
effect of
potentially
court did not abuse its discretion
district
Daubert,
595, 113
dence,
509 U.S. at
see
error)
(that is, commit manifest
in exclud
expert opinions
sometimes
S.Ct. at
ing
portions
proposed
certain
of Tressel’s
admissibility re
meet the
that otherwise
expert testimony.
by apply
may still be excluded
quirements
first
begin by observing
We
under Rule 403
Exclusion
ing Rule 403.15
requirement,
qualification,
is
satisfied
value of
probative
if the
appropriate
is
training
experi-
evidence is substan
here.
on his
otherwise admissible
Based
con
potential
its
tially outweighed
Tressel
investigator,
ence as a forensic
Rouco,
jury, see
or mislead the
fuse
qualified
expert
investiga-
as an
forensic
expert
if the
F.2d at
fact,
judge
tions.
In
the trial
acknowl-
needlessly
consuming.
time
cumulative or
edged
during
as much
the Daubert hear-
Co., Inc.,
See,
e.g., Hull v. Merck &
court said: “I
ing.
district
think
(11th Cir.1985)
cu
(per
F.2d
you normally
an
in what
look
expert
he’s
riam)
speculative
(finding that admission
and I
rape investigation],
don’t
[in
confusing
“potentially
that.
any difficulty
have
with
That’s
expert
testimo
purposes
with the
odds
expertise
where his area of
is.” R5 at 51.
702”); see
in Fed.R.Evid.
ny as envisioned
Later,
judge
point,
the trial
reiterated this
Stevens,
935 F.2d
States
also United
observing:
problems
“I
no
with his
Cir.1991)
(3d
(finding expert
obviously very quali-
expertise as he is
excluded because its
testimony properly
investigator....
criminal
here we
[I]f
fied
by con
outweighed
value was
probative
that were
dealing
procedures
were
with
time,
delay,
of “undue
waste
cerns
adequate or
they
used and whether
were
of cumulative evi
presentation
needless
him a
I would consider
inadequate,
then
dence”).
Indeed,
weighing
judge
“the
testify
those matters.”
good expert to
force
against probative
possible prejudice
qualification as
Id. at 66. Tressel’s
...
more control
Rule 403
exercises
under
investigator was based on
expert forensic
lay
than over
witnesses.”
experts
over
Department
the Police
632;
Weinstein,
F.R.D. at
see also
County, Georgia,
within
Cobb
Co.,
31, 35,
Lines
370 U.S.
Salem v. U.S.
Examiner’s Office.
County Medical
Cobb
(1962).
1119, 1122,
15. Federal relevant, may Although be exclud- qual- found Tressel While the district court substantially probative out- ed if its value is investigator, expert ified as an forensic danger prejudice, weighed by the of unfair concerning opposite conclusion reached the issues, misleading confusion of opinions. qualification to offer medical delay, jury, of undue considerations going time, judge 'T am not to The trial said that presentation or needless waste of bruising testify [to about the allow him evidence. cumulative however, that the dis- turn then to the central issue on argues, We Frazier appeal: whether the district court abused erroneously treated scientific trict court by excluding its discretion some of Tres- prerequisite expert a as background testimony opinion sel’s because failed status, court agree we had the reliability. establish its reiterate that We so, have erred as a matter of done it would the district court has the same broad dis- law, expressly Rule 702 contem- because deciding cretion in how to assess the relia- may experts qualified based plates bility expert testimony that it has in its However, our review of experience. reliability ultimate determination. In this suggests record that the district the entire case, government after the moved to ex- excluded Tressel’s not be- court testimony, clude Tressel’s the district background, a cause he lacked scientific reliability court opin- assessed the of his he failed to establish that his but because by conducting thorough ions a Daubert methodologically opinions were reliable or asked, hearing in which Tressel was re- n sound. peatedly, opinions what the bases for his support our conclusion that Two factors expert testimony were. some will While court did not exclude the district Tressel’s clearly be so that a admissible district he lacked scientific ex- because court need not a Daubert hearing conduct Tire, case, unqualified. every, or was otherwise pertise see Kumho U.S. noted, 150-52, First, 1175-76, case, we have the trial court 119 S.Ct. at as the district qualified by that Tressel was court’s decision evaluate said explicitly admissibility opinions of Tressel’s in the expert experience investiga- as forensic pre-trial hearing per- context of a was a Second, the district tor. court allowed fectly Moreover, reasonable one. Frazier investigators Lanning and FBI Onorato to timing has not attacked the or conduct of opinions they quali- after were expert offer the Daubert hearing. And the record am- experts based substantial mea- fied as ply establishes that Frazier was afforded experience.17 The record on their sure every opportunity hearing at the to adduce indicates that taken as a whole the district challenged foundations of Tressel’s experience understood that properly, court opinions. The district court did not abuse qualifying can a basis for an ex- provide its discretion when it conducted a Daubert discern no abuse of pert. And we discre- hearing. tion the district court’s conclusion that qualified investiga- Tressel was a forensic reliability of Tressel’s recovery tor. hair inculpatory or seminal genital expert I would a area]. [allow] victim's med- had testified as an forensic scientist ical doctor but not witness with these cre- more than a hundred times. Onorato had dentials.” R5 at 50-51. Frazier does not University worked in the of Alabama at Bir- appeal .ruling the district court's Tressel mingham's approximately medical center for qualified was not to offer medical testi- years, two and in the crime lab of the Penn- mony. bruising We add that evidence of sylvania years, State Police for two before fluids, just bodily genitalia, may like hair FBI, joining the where he had worked for be forensic evidence of sexual assault. approximately years five at the time of the trial. Onorato also had as a mem- supra, Lanning 17. As detailed worked for had Academy ber of the American of Forensic years just under six Kansas Bureau Sciences, Society the Canadian of Forensic , Investigation, years for six in the Trace Science, Society and the American of Clinical laboratory Evidence Unit of the FBI in Wash- D.C.; Pathologists, qualified ington, she was member of the Mid- approximately western Association of Forensic Scientists and 15 cases. *20 a vestigation rapist, in serial and could expected” is undermined fluid “would be suggest study no that had ever examined First, very meaning of his ways. two in the rate of transfer of hair sexual as- Tres- is uncertain. Whether opinion basic cases. sault as he used “expect,” that opined sel
term,
likely
it
more
than
meant that was
expert’s
statement
that
While
found, or
be
that trace evidence would
not
recovery of hair or seminal fluid “would be
substantially
likely
more
than
intrinsically
it was
expected” expresses
proba-
idea,
if
quantitative
probability
it
found
there was
bilistic or
not that would be
unclear,
expresses
imprecise
it
is
and ill-
assault,
discovery
or that
was
sexual
probabilis-
And the basis for that
defined.
unclear
certainty,
altogether
is
virtual
opinion
tic
is left unstated. Without know-
testimony.
or his
report
Tressel’s
hair
ing
frequently
how
or seminal fluid
im-
opinion
meaning
specific
during
transferred
sexual conduct
simi-
government
As the
possible to discern.
lar cases—whether derived from reliable
argument,
at oral
even the
out
pointed
quantification
on some
studies
based
“ex-
dictionary
of the term
definition
experience
from his own
derived
—it
something ei-
to consider
pect” meaning
—
very difficult indeed for the
district
ambiguous,
itself
likely or certain —is
ther
(or
to make
jury)
for that matter the
anywhere be-
imply
and could
a likelihood
assessment,
even an informed
let alone
100%. See Webster’s
tween 50% and
verify
recovery
of hair or fluid
(1961)
Dictionary
International
Third
expected.”
this case “would be
probable
“to consider
(defining “expect” as
Nor could the district court tell from Tres-
certain”).
opinions had
sel’s
whether his
if
fundamentally, even
we take
More
or, even,
subjected
peer
been
review
mean
opinion
simply
Tressel’s
opinion
in which his
percentage of cases
that hair or
likely
more
than
was
Simply put, Tressel
had been erroneous.
transferred, and
seminal fluid would be
con-
did not offer
hard information
recovered,
pre-
Tressel offered
therefore
hair or
cerning the rates of transfer of
way
of a reliable founda-
cious little
during sexual conduct.
fluids
opinion.
for his
After
tion or basis
relying solely
pri-
Tressel was
Since
moved to exclude Tressel’s
government
it remained
marily
experience,
on his
court was
testimony,
the district
proponent
burden
role
obliged
gatekeeping
to exercise its
experience
led to the
explain
how
determining
provided
whether Tressel
reached, why
conclusion
opinion.
for
foundation or basis
his
reliable
opinion,
basis for the
was a sufficient
the ba-
questioned specifically about
When
reliably ap-
just
experience was
how that
opinion
his
opinion,
his
Tressel said
sis for
Again, “[t]he
to the facts of the case.
plied
and on vari-
experience,
on his
more
gatekeeping
requires
was based
function
court’s
‘taking
expert’s
How-
word
investigation.
simply
in forensic
than
ous texts
”
advisory
commit-
it.’
Fed.R.Evid.
ever,
repeated prompting,
even after
amends.).
(2000
tee’s note
just
his own
explained
Tressel never
how
mentioned,
or the texts he
experience,
us to the
review of this record leads
Our
In-
“expectancy” opinion.
supported
court did not
that the district
conclusion
deed,
single
in-
Tressel identified
finding
the absence
its discretion
abuse
verifiable,
quantitative
he had worked on
which
ba-
vestigation
sufficiently
of a
As we
opinion.18
in-
for Tressel’s
during the
sis
hair evidence was recovered
opinion
plainly
premised on his basic
was no
Tressel’s other
there
—that
rape—
forensic evidence to substantiate
*21
noted,
application
of an
unspecific,
abuse-of-dis-
jury
members of the
readily
could not
determine
recognizes
cretion standard
whether the
range
pos-
“expectation”
finding
hair or seminal
judge may
sible conclusions that the trial
fluid
a virtual certainty,
was
a strong prob-
case,
In
reach.
we are satisfied that
ability,
possibility
not,
likely
more
than
judge
the district
acted well within that
perhaps
just
a possibility.
even
As a
range
finding
an insufficient nexus be-
result, Tressel’s imprecise opinion easily
tween the
proffered by the ex-
could serve to
jury,
confuse the
and might
pert
opinion
and the essential
propounded.
well have
importantly,
misled it. More
noted,
we have
the methodological founda-
Turning finally to the third re
reliability
tion or
“expectancy”
of Tressel’s
quirement
admissibility
expert opin
,was
slender,to
opinion
sufficiently
allow
testimony
ion
it will assist the
—whether
the district court to conclude that the trier
trier of fact
in understanding the evi of fact would not
be assisted
opin-
dence—the district court also concluded
short,
In
ion.
we can discern no abuse of
that
opinion
Tressel’s
regarding “expecta
(let
error)
discretion
alone manifest
in the
tion”
jury.19
would not aid the
Again,
trial court’s finding that the third prong of
opinion
because
imprecise
Tressel’s
was
Rule 702 had not been met either.20
expected
that "it
that
involving
some trans-
aIn case
non-constitutional eviden-
fer" of haiir or seminal fluid
errors,
would occur in
tiary
we read these rules of evidence
Accordingly,
this case.
if the district court
procedure along
and criminal
with the federal
discretion,
is,
did not abuse its
that
commit
statute,
2111,
§
harmless-error
28 U.S.C.
error,
excluding
opinion
manifest
con-
requires
give
which
that "the
judg-
court shall
cerning "expectancy,”
(nor
then it did not
ment after an examination' óf the record with-
it)
this record could
commit manifest error in
regard
out
to errors or defects which do not
excluding
opinion
the derivative
either.
rights
parties.”
affect the substantial
Guzman,
1350,
See United States v.
167 F.3d
19. We
suggest
read the record to
(ilth Cir.1999);
United States v. Her-
ambiguous
district court concluded Tressel's
nandez,
661,
(11th Cir.1998);
160 F.3d
"expectation" opinion
jury,
would not aid the
Lankford,
United States v.
955 F.2d
are,
although the court's statements
on this
(11th Cir.1992);
Sellers,
point,
United States v.
altogether
clear. The court said:
(11th Cir.1990).
906 F.2d
Errors do
said,
problem,
I have no
as I
with his testi-
.601
right
affect a substantial
for,
party
they
of a
fying
if
they
that's what
look
but when
have a
you
"substantial influence”
trying
prove
start
on the
outcome
there is no
they
"grave
case because
case or leave
didn’t find
doubt” as to
[trace evi-
wheth-
dence], you
got
something
they
have
to have
er
affected the outcome of a case. Kot-
just
opinion....
more
States,
750, 764-65,
than
teakos v. United
328 U.S.
I have no
idea whether —I
have
don't
(1946).
1267 Bennett, 1134, v. 848 F.2d 1139 United States (11th Cir.1988) (observing that "a defendant's in sexual assault “frequently found are case) (as cases,” may implausible explanation posi- in this there constitute especially when verdict,” multiple episodes jury of sexual support of a is a claim tive evidence in was used. activity story and no condom occurred the defendant's was "du- and that where present impact bious, failure to wholly Whatever incredible ... reason- [a] if not through on the outcome Tressel had jury might explana- evidence able well disbelieve the trial, complain that cannot now Frazier [defendant was] tion and conclude that the violated, it was his deci- rights were since his lying attempt up illegal in an to cover activi- sion, judge, kept ruling by arrest, the trial not a ties”). After his Frazier told the FBI testifying at all. that, (indeed, Tressel from drinking day after beer all after Moreover, portion of Tressel’s the excluded finishing 12-packs off three of beer 6:00 secondary as opinion was offered evening), sitting a he was on bench in impeaching targeted solely lot, evidence parking ap- Wal-Mart when he was rape, rath- credibility her claim of victim’s proached by 18-year-old woman who was being offered as substantive er than complete stranger, and who initiated a con- relating guilt or innocence on the to Frazier’s him, offering give versation with him ride opinion charge. kidnapping The excluded that, driving home. Frazier claimed after out raped Frazier testimony related to whether lot, parking the victim asked him victim, kidnapped her. whether he not while, spite that he drive for a fact 1574, Burroughs, 830 F.2d States v. United told her he had no Cf. was intoxicated and had Cir.1987) (effect (11th withholding 1578-80 The defendant also valid driver’s license. sufficiently preju- impeachment evidence not pull did not over when her claimed that he evi- new trial where sufficient dicial to merit down, flag and when the father tried to him presented guilt was and dence of substantive chase, joined lengthy, high-speed police through impeached government's witness was the victim directed him to do so. because means). prevented Nor was Frazier other Plainly, jury could find this account whol- credibility impeaching the victim’s from ly implausible. means, indeed, through and he took other leaving own dubious Even aside Frazier’s advantage opportunities to do ample of other explanation Halloween of the events that sought to undermine the so. The defense night, there was other substantial evidence kidnap- credibility of the victim's account of guilt. jury Frazi- which the inferred things, pre- rape by, among other ping and the vehicle at Wal-Mart on the er entered appear sénting did not to be evidence that she directly rear seat driver's side and sat in the accompanied the upset when she or afraid victim, an action consistent with behind gasoline purchased when he defendant under the threat of violence. an abduction Indeed, nor, escape; notably, try to cigarettes, did she give had volunteered to if the victim cigarette for Frazier while in the that she lit ride, likely have sat in the Frazier a car; initially police tell and that she did not addition, passenger Frazier front seat. In being immediately after raped had been she carrying a knife locked in the was arrested Evidence was also removed from her car. wholly development consis- open position, a establishing that the victim was calm offered victim’s account. We add tent with the appear upset was taken when she and did state, very given his intoxicated fact evidence, hospital. when com- This driving suggested he took control of he was undisputed presentation of bined with the against will. car force and the victim's hair nor that neither the defendant's facts importantly, Finally, perhaps most Frazi- person victim’s were found on the semen harrowing flight po- long from the er’s car, opportuni- provided ample her Frazier per speeds up to 100 miles hour —was lice—at jury defense that ty present to the his basic guilt, strong evidence of consciousness ac- the entire the victim had manufactured See, e.g., repeatedly held. Unit- this Court has rape. of abduction and count (11th Bldkey, F.2d 1000 ed States v. Finally, of some of Tressel's the exclusion 1992) (evidence flight is admissible Cir. (even error) was harm- if guilt and there- consciousness of demonstrate evidence of Frazier's less because the other Beard, itself); by guilt United States v. guilt See United States was so substantial. Cir.1985) (evidence (11th F.2d (11th Fortenberry, Cir. 971 F.2d flight inference of consciousness can raise 1992). own account of the The defendant's States, guilt); 299 F.2d Monnette v. United patently night unbelievable, question was incredible (5th 1962) (flight from law en- Cir. and Frazier's account itself con- guilt). evidence of guilt. forcement officers is evidence of his See stituted substantive spirit purpose of Rule 16 IV. violated the of the Federal Rules of Criminal Proce- A. Next, suggests Frazier that it was dure. improper for the district court to allow the the' also claims district Frazier *23 government Lanning to use and Onorato téstimony permit to court’s decision Having as rebuttal witnesses. excluded Lanning and Onorato— investigators FBI testimony, argues, Frazier there Tressel’s excluding time some of same while at the nothing Lanning for and to was Onorato a fatal error. We Tressel’s —was Finally, that it rebut. Frazier maintains unpersuaded. remain simply government unfair to allow the was arguments makes three broad Frazier present through Lanning and evidence— First, says of this claim. support very on which he Onorato—on the issue provide failure to notice government’s to offer evidence from- Tres- was unable Lanning and intent to call Onorato sel.21 its Thus, Cir.1994); given pre- 4 the substantial evidence Weinstein's Federal Evidence ("In guilt objec- § from which Frazier’s 702.02[6][a] sented trial the absence of an inferred, tion, exculpatory admitting rulings excluding expert could be and the hair .or testimony actually presented, testimony reliability we and' without determination s.emen exceedingly jury’s error.”). find remote that the ver- only plain are reviewable for even dict would have been different if Tres- judge It is true that the 'trial did not make "expectancy” opinion had been admit- sel’s explicit determination on the record as to ted. Its did not have a substantial exclusion Lanning's qualifications, and Onorato’s or case, impact on the outcome of the nor are concerning reliability opinions, of their grave we that the out- left with doubt case’s doing so'may and have been the better course Any come was affected. claimed error was Nevertheless, persuaded here. we are not Darwin, See, e.g., harmless. United States v. court, that the district when with no faced 1193, (11th 1985); 757 F.2d 1204 Cir. United objection, obliged formally was memorial- 913, (8th Vesey, States v. 338 F.3d Cir. regarding qualifications its ize determinations Smith, 1103, 2003);, United States v. 736 F.2d See, reliability e.g., and on the record. United (6th 1984). Cir. Locascio, 924, (2d States v. 6 F.3d 938-39 Here, then, 1993). Cir. we examine the dis- 21. On appeal, Frazier has raised a fourth implicit rulings Lanning trict court’s and says claim. He that the trial court made no qualified opinions Onorato were and their pre-trial Lanning determination that and plain plain were reliable for error. We find qualified experts, Onorato were or for that ' error; (1) (2) matter, only error where there is an opinions their were reliable. obvious; However, (3) plain objected error is the error affects at trial Frazier never testimony Lanning rights the defendant's substantial in that it Onorato as be- unreliable, harmless; (4) ing challenged prejudicial and never their ex- was and not fairness, pert qualifications. objection seriously integrity, Absent some error affects the qualifications public reputation judicial proceeding. from Frazier as to the Lan- of a Onorato, Chisholm, ning concerning the reliabili- See United v. States 73 F.3d (11th 1996). ty opinions, only plain we review of their for Cir. implicit reviewing testimony error the district court's determina- After offered Onorato, they qualified opin- experts Lanning tion that were and their we conclude Christopher plain ions were reliable. See Cutter that the district court did not commit ‘ Labs., (11th 1995) failing testimony 53 F.3d Cir. error in to exclude their (absent objection testimony, expert's they unqualified because were or because appeals challenged testimony only opinions reviews their were As discussed unreliable. error); Becker, plain supra, Lanning v.. for see also Macsenti both and Onorato demonstrat- (10th Cir.2001) (deci- expert qualifications offering any 237 F.3d 1231-32 ed before expert testimony opinions, specific provided sion to admit reviewed and detailed plain timely objections quantitative opinions, error when under bases for their made); McKnight Daubert are not v. Johnson marked contrast to Tressel. There was no Inc., Controls, error, (8th plain 36 F.3d 1406-07 let alone one that was or obvious. mony characterized as rebut- trial, objec properly was primary Frazier’s
At tal, require govern- Rule 16 did notice, allowing the absent tion was summary or a give' ment to notice Lanning and Onorato violated testimony of testimony. Federal Rules Criminal Rule 16 of the nevertheless, of Rule pertinent portion argues,
Procedure. Frazier Lanning or Onorato is not provides: because Tressel’s rebuttal govern- request, At the defendant’s and, thus, opinions there were no excluded the defendant a writ- give must ment disagree. for them to contradict. We We testimony that the summary ten explained purpose of re “[t]he Rules intends to use under government explain, repel, buttal evidence is ‘to coun *24 702, 703, Rules of or 705 of the Federal teract, disprove the evidence of the during at tri- Evidence its case-in-chief party,’ permit and the decision to adverse al. testimony is one that resides rebuttal judge.” of the trial the sound discretion 16(a)(1)(G) (emphasis add- Fed.R.Crim.P. Gold, 800, F.2d States v. 743 818 United ed). that, consis- case law establishes Our (11th Cir.1984) v. (quoting United States Rule, plain language of the tent with the (5th Delk, Cir.1978)); 513, F.2d 516 see 586 presentation of rebuttal government’s States, 320 F.2d also Luttrell v. United notice does not testimony prior without Cir.1963) (5th (“ 462, ‘It is within the 464 16, notice the Rule’s violate Rule since explain, repel, to distinct office of rebuttal govern- to the requirements apply counteract, the evidence of the disprove ” v. See United States ment’s case-in-chief. (quoting Shepard v. Unit party.’ adverse (5th 1389, Windham, F.2d 1392 Cir. 489 (10th States, 641, 64 F.2d Cir. ed (“Rebuttal 1974) recog- are a witnesses 1933))). to all witness disclosure exception nized case-in-chief, coun- During his Frazier’s see also States requirements.”);22 United (instead Lanning and Onorato sel called (6th DiCarlantonio, 1058, F.2d v. Tressel) that no hair in order to establish Cir.1989) (Rule require not disclo- 16 does Frazier’s were found at matching or fluids testimony not of- sure of rebuttal crime, suggesting after the scene of the case-in-chief); during government’s fered that the absence of this opening statement Barrett, 609, 617 v. 766 F.2d United States no assault had meant that sexual Cir.1985) (1st (same); United States therefore that the victim’s place, taken (9th Cir. not Angelini, 607 F.2d 1308-09 and assault were accounts of abduction 1979) offered the (same). Thus, government long this testi- credible.23 so as Moreover, to is nothing what it comes down [I]n that calls the end we can discern fairness, going your decision is going integrity, reputa- question into be— —it’s you going be based on whether or judicial proceeding. tion of the victim] [the or don’t believe [the believe adopted Circuit has as bind- 22. The Eleventh victim]. ing precedent the decisions of the former Now, prior to Circuit rendered October Fifth we know from common sense as all Prichard, encounter, City 661 F.2d 1981. Bonner v. has been a sexual the—if there Cir.1981) banc). (11th encounter, lengthier the more con- ien area, likely there is the more tained the hair, statement, some going to be some transfer opening coun- In her Frazier’s fluids, you body things that for hinged on at- transfer of explained that the defense sel they ex- jurors important because if story by are tacking credibility of the victim's corroborated, ist, it corrobo- they can be among things, fail- if suggesting, other that the hap- version of what implied victim's] rates [the fluid evidence ure to recover hair or pened. ... lying. the victim was She said: may testimony Lanning and Onorato osition that district court abuse its
rebuttal to counteract the attempt explain it one party’s discretion when excludes finding hair that the absence of viewpoint allowing while on critical issue fluid meant no sexual assault or seminal evidence on the party present the other had occurred. same issue. by introducing We add inapposite and Frazier’s investigators
fact that had failed to Gaskell Gaskell, In bodily upon misplaced. reliance any inculpatory recover hairs or fluids, arguing significance of that panel of this Court ruled the district failure, plainly opened Frazier the door for by excluding court erred testi government to offer reliable evidence allowing mony party of one while the other help explain significance that could party present expert testimony on the cannot complain that failure. He now However, Gaskell, same issue. the dis government stepped through that door excluding trict court’s reason for the testi challenge presented. rose mony was the lack of relevance. heldWe Hall, See United States v. 653 F.2d that if party for one was rele (5th (“The A Aug.1981) Cir. Unit *25 vant, testimony party for the other on the underlying rationale rebuttal [of evidence] and, if same issue would be relevant other opened is when the defendant has admissible, wise should not be excluded. testimony by presenting door to a line of Gaskell, (“Any F.2d at 1063 See 985 doubt thereon, object evidence he cannot as to the relevance of this evidence should prosecution’s accepting challenge have been resolved in favor of Gaskell in attempting proposition to rebut the assert light government’s of the fact that 516)). Delk, (citing ed.” 586 F.2d at This opine was allowed to [on same purpose animating govern was the subject]. ‘It is an abuse of Lanning’s ment’s use of discretion Onorato’s tes timony, and the district court did not opinion exclude the otherwise admissible allowing abuse its discretion in the testi issue, of a a party’s expert on critical while mony Lanning and Onorato on rebuttal. allowing opinion adversary’s of his ex ” No violation of Rule 16 has been estab pert (quoting on the same issue.’ United lished on this record. Lankford, 1545, v. States 955 F.2d 1552 (11th Cir.1992) added))). (emphasis argues regard
Frazier also
less of whether there was
violation of
Here, however,
government
has not
16,
it
terms of Rule
was unfair to allow
disputed
that Tressel’s
was rele-
Lanning
testify
and Onorato to
because
vant;
rather,
objected
it
and the district
permitted
testify
Tressel was not
on the
opinion
court ruled that some of Tressel’s
point.
says
same
Frazier
that if
gov
reliable,
testimony was not
and for that
present
ernment was allowed to
reason inadmissible. Because the district
issue,
on an
he too should
af
have been
finding
court did not abuse its discretion in
opportunity
forded the same
to do so.
unreliable,
Gaskell,
Gaskell does
Frazier relies on
States v.
United
(11th Cir.1993)
scription happened. you happened of what victim] has told on Hallow- you you ... night year. I submit to ... that when hear een last you all of the evidence in this case ... will R7 at 79-81.
1271
ered unfair because the defendant was
B.
offering perjured
from
testimo-
prevented
by Frazi
persuaded
are we
Nor
Whiteside,
v.
475
ny. See Nix
U.S.
aggregate ef
claim that the
er’s broader
988, 997,
L.Ed.2d 123
106 S.Ct.
evidentiary
court’s
of the district
fect
(1986) (“Whatever
scope
of a constitu-
meaningful
“a
deny him
rulings was to
elementary
it
right
testify,
tional
de
complete
a
present
opportunity
right
testifying
a
does not extend to
such
Trombetta, 467
v.
fense.” California
York,
v. New
falsely.”)-, Harris
U.S.
2528, 2532,
479, 485,
104 S.Ct.
U.S.
222, 225,
643, 645,
91 S.Ct.
28 L.Ed.2d
(1984).
L.Ed.2d 413
(1971). Nor are an accused’s constitution-
a
surely true that
defendant
It is
necessarily violated because he
rights
al
opportunity
pres
be afforded the
must
hearsay,
prevented
introducing
Indeed,
right
of the
ent
defense.
Pena,
see
States v.
527 F.2d
United
complete
defense
accused to assert
(5th Cir.1976),
presenting
or from
established,
its roots
and has
well
privi-
otherwise relevant evidence that is
Sixth,
Fifth,
Fourteenth Amendments
leged,
communications between a
such as
Supreme Court
to the Constitution.
client,
patient,
lawyer
doctor
explained:
has
wife,
between a husband and
see United
directly in the Due Pro-
rooted
Whether
(5th
Brown,
634 F.2d
States
Fourteenth Amend-
cess Clause
Cir.1981) (“The
vio-
district
did not
ment,
Process or
Compulsory
or in the
Amend-
late either
Sixth
[the defendant’s]
the Sixth
clauses
Confrontation
right
ment
to confront
the witnesses
Amendment,
guaran-
the Constitution
right
him
Fifth
against
or his
Amendment
meaningful
criminal defendants
tees
upheld
process
[the]
to due
of law when
*26
complete
de-
present
to
opportunity
as a bar to the
privilege
claim of marital
in ob-
ground
no new
fense. We break
may consti-
testimony.”).
...
And courts
component of
serving that an essential
tutionally preclude defendants from offer-
to
opportunity
fairness is
procedural
they
evidence if
fail
ing otherwise relevant
be heard.
rules that re-
comply
procedural
to
Michigan v.
quire
given.
notice to be
See
683, 690, 106
Kentucky, 476 U.S.
v.
Crane
152-53,
Lucas,
145,
111 S.Ct.
500 U.S.
(1986)
2142, 2146-7,
L.Ed.2d 636
90
S.Ct.
(1991);
1743, 1748,
Tay-
In court’s exclusion of the district fluid mean that'no rapé seminal does not opinion testimo- portions some of Tressel’s court’s, I holding occurred. concur in the from ny did Frazier introduc- prevent not not abuse the district court did its key of his defense and ing elements objection in overruling Frazier’s discretion story jury. before the See placing his testimony.1 Lanning’s I Onorato’s at 1170. Sheffield, 992 F.2d also concur affirmance of the court’s V. rejection opin- district court’s of Tressel’s analytical ions. The model I use reach- painstaking After review this record result, however,. ing differs district we are satisfied that the court did model the Because the court uses. differ- discretion, that its commit abuse significant, explanation ence is is in error, excluding portion manifest order. allowing while opinion Tressel’s government’s on the rebuttal evidence Nor, finally,
same issue. was this defen- I. Accordingly, dant a fair trial. we denied affirm. A. AFFIRMED. begin observing happens I what after TJOFLAT, Judge, specially Circuit objects introduction of an party
concurring:
ground
opinion on the
witness’s
is unreliable.2 Assume
appeal
in this
concern
critical issues
party
why
opiniqn
evidentiary rulings.
explains
Frazier
contends
*28
duty
a
to
agree
1.
I also
court's
that district court has a
intervene on
with the
conclusion
own
convene a Daubert hear-
its
initiative and
object
Lanning
Frazier
at trial to
failed
ascertaining
ing
the purpose
for
whether
ground
they
opinions on the
Onorato's
opinion
expert
an
is
about-to-be-introduced
were
therefore
unreliable and
inadmissible
reliable.
under
Rule of Evidence 702. See
Federal
Finally,
agree
I
ante
1268-69 n. 21.
scenario,
following hypothetical
the
I as-
2.
In
error,
plain
the court that if examined for
the
expert
"qualified” and
sume that the-
is
sponte
district court’s failure to determine sua
is,
proffered opinion is relevant—that
it
the
opinions are reliable does not
whether these
assist
fact to understand the
"will
the trier of
satisfy
plain
first element of
error: that an
the
evidence or
a fact
issue.”
to determine
Thus,
imagine
solely
error occurred.
Id.
I cannot
a situ-
Fed.R.Evid.
I focus
on the
702.
appeals
reliability.
ation
a court of
hold
issue
in which
would
unreliable,3
explanation may
by establishing
the
satisfies that burden
to the
court,
trial
court’s
satisfaction
circumstantial
merit,
recognizing
the
and that
yield
facts sufficient to
the inference that
hearing.4
convenes a Daubert
possibility,
opinion
the
is rehable.
opinion
proffered
the
is reliable
Whether
fact.
It is an ultimate fact
question
this,
If
proponent
the
does
and the
proof,
it
susceptible
to direct
so must
reliable,
court thereafter
opinion
finds the
from certain circumstantial
be inferred
opinion
the court must admit the
it
unless
facts,
Supreme
Court has re-
which
though
concludes
relevant and reli-
proponent
able,
ferred to as “factors.”5
opinion’s probative
value is
establishing
burden of
opinion
has the
“substantially outweighed” by the consid-
reliability by prepon-
fact of
the ultimate
erations outlined in Federal Rule of Evi-
If
proponent
proponent
of the evidence.6 The
dence 403.7
fails to
derance
es-
case,
defendant,
every
expert
3.
In a criminal
if the
invok-
courts to ensure that
item of
ing
right
Rule
his
under Federal
of Criminal
testimony
"a
has
reliable basis in the knowl-
16(a)(1)(G),
"a
Procedure
has obtained
writ-
edge
of the relevant disci-
summary
any testimony
ten
that the Gov-
(alterations
omitted)).
pline.”
quotations
702, 703,
ernment intends to use under Rules
course,
procedural handling
Of
of an
Evidence,”
or 705 of the Federal Rules of
objection
proposed expert testimony
is a
position
support
defendant should be in a
matter committed to the trial court’s discre-
objection
opinion
government
of a
tion,
hearing
and a formal Daubert
will not in
explanation why
with an
he believes
cases,
necessary.
all
cases
In some
opinion
is unreliable. Under this scenar-
io,
evidentiary hearing
unnecessary
government
recip-
because
be entitled to
discovery
parties' reciprocal
rocal
under Federal
Rule of Crimi-
submissions are suffi-
16(b)(l)(C)(i)
nal Procedure
and thus should
cient to enable the court to resolve the relia-
explain why
objects
be able to
to the relia-
bility
taking
testimony.
issue without
live
See
When,
bility
expert's opinion.
of a
Tire,
defense
Kumho
1275
been)
(2)
(or
tested”;
ion “can
has
facts sufficient
to
be
circumstantial
tablish
technique
or
theory
whether the
“has been
opinion
the
is re-
the inference that
yield
subjected
peer
to
review
publication”;
court,
liable,'
weighing
after
the
or the
(3) whether,
respect
particular
to
the-
established,
has
-finds
proponent
the
facts
ory or
there is a
“known or
technique,
high
unreliable, the
opinion
opinion
that the
is
error,” and
potential rate of
whether there
of law.8
as a matter
Just
is inadmissible
controlling
technique’s
are “standards
the
confession is inadmissible
as a coerced
(4)
theory
operation”; and
whether the
or
probative
the
it lacks
value
to
because
technique
enjoys “general acceptance”
committed
of whether the defendant
issue
community.”
the
scientific
within
“relevant
has
act which he
“confess-
the criminal
to
Pharmaceuticals,
v.
Daubert Merrell Dow
ed,”
is inadmissible
opinion
an unreliable
Inc.,
579, 593-95,
2786,
509 U.S.
113 S.Ct.
probative value as to thé
it lacks
because
2796-97,
(1993).
“tied to the
Tire,
150,
(1984),
S.Ct.
1176.
trial court abuses its
C.
making
evidentiary ruling
discretion in
an
it misapplies
findings
“if
the law or makes
Understanding the model for determin-
clearly
E.g.,
of fact that are
erroneous.”
ing
reliability
expert’s opinion
Corr.,
Kelley
Sec’y
Dep’t
light
operation
considerable
on the
sheds
for
(11th Cir.2004).12
1317, 1333
F.3d
appeals
employs
of the standard
court
reviewing
ruling
the trial court’s
on the
reviewing
say
What would a
court
if the
admissibility.
opinion’s
We review a trial
court, in determining
trial
whether an ex-
admitting
excluding
decision
or
evi-
court’s
reliable,
pert’s opinion was
based its find-
discretion,”
dence for “abuse of
Old
ing on irrelevant factors?
The answer is
Chief
States,
172,
1,
v. United
519 U.S.
174 n.
reviewing
obvious. The
say
court would
644,
1,
117 S.Ct.
647 n.
alleged kidnaping.18 before the
A. cross-examination, however, On Tressel I ruling first address the district court’s acknowledged physician that he was not a excluding opinion Tessel’s that he saw “no and had no in the medical field. forensic evidence to substantiate the claim training He had no in pelvic examinations rape case.” The obstacle Frazier victims, of sexual assault nor had he exam- had to reliability overcome to establish the ined the victim in this case. The district opinion inability of this was Tressel’s (indeed, reasonably necessarily) rec- negate the inculpatory power of one item ognized that reliability of Tressel’s “no of “forensic squarely was, evidence” that cor- opinion forensic evidence” as Tressel story: bruising roborated the victim’s to had presented report, dependent his genital discoloration of the victim’s on the establishment of the fact that some- area during discovered a medical examina- one other than genital Frazier caused the shortly tion conducted after she and Frazi- bruising and discoloration. The court 18. For his bruising may that there was that there substantially that the older only was no than a few hours. forensic evidence to substantiate the my Based on review of the available docu- rape, upon claim of Tressel relied the follow- ments, my professional opinion it is ing circumstantial facts: there is no forensic evidence to substantiate taken, findings samples All of the that were rape only the claim of in this case. The essentially all rape of which are routine any type activity indication that of sexual investigation procedures, negative were occurred redness around the labia finding a transfer of seminal fluid or hair major and the redness of the cervix. These from the defendant in this case. The medi- themselves, injuries, two in and of can oc- cal examination of the victim shows during activity. cur routine normal sexual activity part evidence of sexual on the alleged [The victim's] medical records indi- prior victim at some time to the examina- cate that she had sexual intercourse on taking place. tion finding The documented 10/29/00. bruising major around the labia indicates Def. Ex. at 2-3. alleged testify given circumstances not Tressel could ruled rape, transfer of hairs or seminal some and discoloration bruising cause of fluid Frazier and the victim would between so; to do qualified he was because expected.22 have been provide testi- would have physician no such proffered testi- Frazier mony.19 support opinion, purport- To Tressel present failed Because Frazier mony.20 edly extensive experience relied on his *33 circumstantial fact evidence of a competent investigations, including forensic investi- to the admissi- deemed essential assaults, the court of and several ab- gations sexual the court exclud- opinion, bility of Tressel’s types the propositions stract factual about the court did not Although opinion. the inves- ed of evidence found sexual assault that explicit finding Tressel’s the tigations affecting and the factors make unreliable, recovery. an implicit it made transfer and was likelihood of opinion that are ac- implic- propositions These abstract factual to that effect. Because finding erroneous, a tually it inferences that Tressel drew from cannot finding clearly is not identified) (vaguely law en- combination opinion the consti- excluding that be said professional expe- his forcement texts and abuse of discretion.21 tuted an I training.23 rience number them and B. convenience: (1) the evidence most com- challenges also district “The forensic Frazier monly during analysis the found opinion exclusion Tressel’s court’s said, were ante at 1265-66 n. 18. The going to true. See am not allow The court “I 19. bruising. testify proper- I about the court that the district court him to concludes with these doctor but not a witness medical ly "no forensic evidence” excluded Tressel’s credentials, particularly one who and did upon opinion "ex- it relied Tressel's because ruling This was the conduct examination." pectancy” opinion, which district court later reiterated: properly But Tres- excluded unreliable. produce going to primary evidence is [T]he there forensic sel's statement that was "no one, reports every but negative area rape” evidence to substantiate claim of bruising.... question that's the not, terms, any dependent foun- on own on its going testify to to allow him I am not opinions about forensic evi- dational what opinion were old or some- those bruises his expected at the dence would have to find one thing. just is not field of his I think that opinion did not offer the crime scene. Tressel have a expertise. You have to medical lied, rape had that the had that no victim given opinion on that.... occurred, that the lack of forensic or even story. (or He victim’s contradicted physician's proffered had 20. If Frazier was evi- only there no forensic expert's) opinion that testified that qualified the vic- other claim, days two earlier dence to victim's sexual intercourse substantiate tim's bruising dependent only his probably caused the discolora- this statement tion, hairs, fibers, asked could have Tressel finding defense counsel fluids no or seminal that opinion validity and then assume the ability explain were recovered and whether, light opinion asked him bruising. away the victim's investigator, as a forensic and his regarding presence opinion had an hairs 22. is silent as whether The record rape. of forensic evidence Had absence cloth- was found on Frazier's seminal fluid suggest place, court this taken I Apparently, ing body following his arrest. give permitted opin- Tressel would have victim, clothing, car and her her at issue. ion such evidence. were examined for opinion Tressel’s The court treats infor- and the 23. The enforcement texts law was "no forensic evidence substanti- there investigating gleaned from mation Tressel rape” as Tressel’s ultimate ate the claim provided the circum- him with is, sexual assaults on his other opinion as one built —that from which he inferred stantial evidence including or fluid transfers opinions, that hair proposi- propositions. These expected” abstract factual the victim's claims "would be if the frequency is the transfer of unable to indicate with rape investigation which hairs and fluid seminal transfers to the perpetrator from the victim hairs and, occur in in partic- sexual assault cases to the victim.” perpetrator from the ular, one at cases like the hand. Tressel (2) routinely are pubic hairs “These testify frequency could not to such transferred dur- [sic] hairs become his own and he experience, was unable to intercourse.” ing sexual any published findings subject. cite on the (3) can also be hairs transferred “Head frequency Without some indication and can be during sexual assault found which hairs seminal fluid are clothing of the victim and the assaults, transferred sexual during perpetrator.” concluded, it could not find reliable (4) frequently are fluids found “Seminal hair or Tressel’s seminal fluid cases, especially in sexual assault when expected” transfers “would be or “should” *34 activity of sexual multiple episodes occur my view, have occurred in this case. In used perpetra- and no condom is the the court acted within its discretion in well only can be found tor. These fluids placing great weight frequency on this fac- victim, the Thus, the orifices of but also on tor. provide when Frazier failed to link, both that clothing missing fully justi- the worn the victim and the court was in striking opinion fied perpetrator.” the Tressel’s as unreli- able. (5) scene, “The crime smaller the more you going
likelihood that are to on the [sic] find court’s focus transfer rates for hair a and seminal fluid was entirely evidence to claim.” support reasonable Tressel’s “expectancy” because (6) of sexual “The number encounters opinion permissibly was not inferable from a suspect that occur and victim between upon circumstantial facts which he raises the likelihood some transfer of it, purportedly based the most obvious forensic evidence.” gap in reasoning inability Tressel’s was his Tressel combined apparently these circum- or unwillingness say how to often hairs “very stantial facts with confined area” and seminal fluid are transferred between occurred, allegedly which the rape victim perpetrator during sexual as- quantity and of the sexual duration acts it “expectancy” saults. Tressel’s opinion ex- involved, any the lack mention of a presses an probabili- estimate absolute being condom to used conclude that hair or ty. minimum, At implies given seminal fluid “would expect- transfers be victim, alleged by events it is more ed” or “should” have occurred. is, likely than not—that there is more than What troubled the court about Tressel’s a fifty-percent chance—that transfer “expectancy” was that Tressel would have occurred.24 Most of the propo- tions, turn, sion, ruling as the served circumstantial but such a would be made under reliability facts Rule require- for the ultimate inference Tressel not under drew— is, requirement ment of There Rule 702. is no "expected” that that would have one that experts precise, opposed gener- that use hair or seminal fluid transfers would have al, Indeed, probability. statements of Tressel during investigation been recovered of the ' only guaranteed would have the exclusion of rape allegedly that occurred in this case. reliability grounds had he agree I do not with the court that the opined specific that percentage there was ambiguity phrase expected” "would be chance that seminal hairs or fluid would have any way reliability case, affects of Tressel’s pat- been transferred in since it is opinion. precision ently impossible Lack of testimo- state such an estimate ny might properly any phrased form basis for its exclu- That confidence. Tressel words, relied, however, In other without some indication Tressel upon which sitions rates, the court was unable to probability— transfer relative are statements possible whether it for or gauge is Tressel is, is more or less -that substance other to conclude that under particular circum- likely to be found under circumstances, particular specific others, than or one substance s.et stances one, “expect” find hair or seminal be than likely or found is more less fluid transfers. knowing baseline another. Without average rates we start —the which propositions upon Some of factual fluids, gener- for hair seminal transfer example, Tressel. which relied—for under circumstances— ally particular found, or “frequently” seminal fluid or support cannot a state- propositions perpetra- these hairs “can” found on head the one probability clothing of absolute like ment tor’s statements of absolute —are none, example, helps probability, they logically get made. It but do not us Tressel fifty percent mark. neces- forensic “most near the “Can” know hairs, sarily possibility connotes a bare commonly” found is the transfer though over (something percent), one are “more that hairs and seminal fluid more, it something “frequently” suggests if the crime scene likely” to be found “usually” not connote “most of the does if of sexual multiple incidences small any way suggest or in that some- time” occur; know the -we do- not contact since than thing happens “more often not.” say we cannot probabilities, baseline *35 likely” commonly” “most or “more then, whether propositions the factual Logically, probability inferrable,25 the enough be to move if upon, could Tressel relied even particu- support or fluids in a not his statement that hair finding hairs seminal could boundary. fluid transfers should have oc- over or seminal fifty-percent lar case the (i.e., something fifty general more than a probability terms than not” his estimate likely chance) that it much more the estimate percent made that such transfers would experience as a have basis in his could place. gener- taken Such a statement is have investigator. forensic non-numerical, al, certainly it is and but not agree opin- Similarly, I that do not Tressel’s "qualitative.” under properly have been excluded ion could emphasize supra I ground that it "as- 25. See note 23. I "if.” 702 on the does not Rule evi- trier to understand the es- grave sist the of fact about whether Tressel have doubts to a fact in because dence or determine issue” reliability of even the circum- tablished the easily imprecise opinion could "Tressel’s upon opinion his was facts which stantial jury, might and well have to confuse the serve cross-examination, purportedly based. On Supreme it.” As the misled Ante at 1266. texts, vaguely three none of Tressel identified Daubert, requirement Court made clear in produced "Prac- were for court: which expert testimony fact” "assist the trier of that Investigation by Aspects Rape Robert tical relevance,” "goes primarily to 509 U.S. Hazelwood,” science "a forensic handbook 2795; require- 113 S.Ct. at it not Saperstein,” "Crime Scene Search -Dr. and given specif- expert testimony be ment that Cun- Physical Handbook Carl and Evidence ambiguity Again, if and certain terms. ic ’ Printing ningham, Government United States po- expert testimony, and its concomitant Office, Judge sug- Contrary to Birch's 1973.” jury, is to the basis tential to confuse the form n.3, however, post at 5 did gestion, see Tressel exclusion, ruling properly for its this quot- “rely upon” texts: he these neither 403, not Rule 702. under Rule made them, specific portions nor cited ed from hand, agree neither I with On other do excerpts provide for the district nor did he Judge of Tressel's Birch's characterization consequently court to examine. The expressing In his opinion “qualitative.” they basis which to conclude had no on opinion that seminal "should hairs or fluid n testimony. these supported his Nor do transfer been” or some have transferred identifiable, sources, they are to the extent making expected," “would be Tressel was testimony. text he support The one -Tressel's inherently probabilistic At mini- statement. identified, Aspects Rape mum, likely clearly Practical suggested it was "more curred, implication jury “expectancy” much informed less evidence, opinion. pointed only this that hairs case was to draw from Tressel one investigated seminal fluid should been recov- he had in which the hair head ered,26 Instead, the circumstantial fact pubic rapist hair of serial was found reliability of upon opin- victims, which the Tressel’s rapist’s drawing on four of the no at which turns is the rate hairs or comparison ion case between facts of that fluid transferred from the seminal are one. no those of this He offered and the victim. Without some perpetrator general frequency observations about the regard in this from sci- evidence which, experience, with hair in his either —whether personal Tressel’s entific studies or from or seminal fluid is transferred or recov- experience, specific in the form of whether ered, frequency much less the of transfers figures probabilities, general involving multiple episodes cases un- generally whether sexual assault cases contact, protected sexual and he stated this cases similar to one —the court that he was unaware of studies had no basis on which find that Tressel’s provide could this information. Because reliable. produce any Frazier failed fact circumstantial the court reason- produced
Yet Frazier no evidence on ably point. reliability found crucial of Tres- On cross-examination at “expectancy” opinion, Daubert sel’s cor- hearing, Government re- the court peatedly explain rectly invited opinion.27 Tressel how his excluded the "hairs, fibers, Investigation, say that does fact in- search forensic evidence blood, semen, victim, car, appear frequen- clothing, and saliva cluded the her cases,” cy not, in sexual assault and that apparently, clothing. "[t]he but Frazier or his type frequently of evidence most associated upon Even if the circumstantial facts which investigations with sexual true, assault semen.” entirely Tressel relied are Tressel *36 Aspects Rape Investigation See so, Practical they had shown to be not them of (Robert R. & Hazelwood Ann Wolbert reliability opinion establish the of his that ed., 1987) added). Burgess (emphasis But expect- some hairs or seminal fluid "would be Instead, things. Tressel said neither of these ed” in this case. he said that hairs transferred between victim perpetrator Though and the 26. object are forensic evidence did not relia- Frazier to the found,” commonly bility testimony by “most that such hairs are offered the Govern- ” hairs, “routinely public experts, Anthony and Lanning that ment’s seminal Karen and Onorato, “frequently (emphasis fluids noting gap are found” add- it bears the substantial ed). assuming testimony prof- Even that "found with fre- between their and Tressel’s ” quency synonymous "frequeniZy opinion. Lanning with fered offered Onorato found,” (1) often, quoted portions experi- the of text do not estimates how of in their ence, support the the notion that evidence fluid recov- "most hair or seminal evidence is (2) commonly investigations, found” hairs transferred ered be- in sexual assault perpetrator. tween opinion victim and their that absence of such evi- necessarily event, dence does not no as- mean that any preclude In court did not purported say sault Neither occurred. making Tressel from these foundational state- ments, given preliminary propositions these precluded testify- but instead him from case, particular the facts of this one would not ing that either hair's or seminal fluid "would "expected” case, to find hair or fluid. seminal expected” particular opin- in this an analytical away ion that is an chasm being hairs and "frequently seminal fluid It is true that Government did not ask generally. found” in frequency sexual assault cases Tressel if he state the could which, Among logical patent gaps, experience, other Tressel nev- in his own seminal fluid or found, explained er opinion how ultimate hair is that the fo- Government affected primarily any the victim’s claim that Frazier cused on whether there was ejaculated, never did support nor he account for the "scientific literature” Tressel’s a determination provide court some basis for that the district argues, Frazier pub on opinion be based is reliable is an opinion that the that never required exper lished, or scientific studies scientific abuse of discretion. possess, did not that Tressel
tise of a of law— this as mistake evidence sees III. is, incorrectly assumed that the court that In a summary, reviewing the model for that an like requires Rule finding reliability trial court’s of scientific foundations. Tressel’s have opinion requires uphold we not, however,, find Tres- court did district finding unless the court abused its it had opinion unreliable because no sel’s is, reaching it—that unless discretion studies;, it found in scientific grounding misapplied the court the law or its based Frazier, opinion unreliable because finding clearly finding erroneous as to proof, of offered no had the burden who or facts one more circumstantial crucial other experience-based evidence— reliability. these finding Keeping of court factual issue the cor wise—on the mind, I think it clear points in reliability rectly identified as central to To ask whether there are district did not abuse its discretion opinion. validating part opin- studies at its arriving findings Tressel’s expert is not experience-based a skill- or “there is forensic ions—that no require that improperly to claim case” rape substantiate the foundations :or rest on scientific of rape and that if the victim’s claim were expertise. scientific See expert have true, expected “it would be that some Tire, 119 S.Ct. at Kumho 526 U.S. transfer or seminal fluid of .either hairs (“Nor, prevalence of despite the tire unreliable. would [have] occur[red]”—were anyone refer to articles testing, does Frazier simply failed establish - papers ap that validate Carlson’s circum- preponderance the evidence the expert’s experiences proach.”). When court, in stantial facts that the the exercise capable shown to be have not alone been discretion, its as crucial and identified for a par foundation providing sufficient reliability. Be- highly relevant indicia of from some opinion, corroboration ticular its cause the district court did abuse opinions in the other where —whether in the in which it re- discretion manner publish experience-based witnesses .in *37 issues, reliability and because solved the necessary to ed, es scientific studies —is findings opinions’ as to the the court’s reliability. The dis tablish opinion’s erroneous, the clearly not reliability were finding implicit court trict made Indeed, to them. court was bound exclude sufficiently established Tressel had not its have abused discretion opinion experience led him to the how his them. jury it to hear permitted had require offered. It then went on evidence, Fra in the of such absence BARKETT, concurring: Judge, Circuit opinion sup had some zier show that the find majority opinion I in the concur Requiring literature. port scientific of the meth- opinion exceedingly parsing useful its expert of an proponent probability prepared statement offer probability But the Government statement. specific (e.g., experience, whether proving that his own not have burden of Tres- did even of his grounded hairs in opinion experi- in his he finds 75% 51% was not sel's Frazier, Rather, general (e.g., are investigations) or that hairs proponent as the ence. n found), obligation "usually” Frazier's establishing opinion, the burden of bore put forward. Tressel was was reliable. If odology admitting expert testimony to the specific conclusion that “it would be experience. that is on based As the dis- expected that some transfer of either hairs notes, accurately the requirements of sent seminal fluid would occur.” R5 at reliability are “often qualification Indeed, Ex. 2 at 2. only support Tres- experience-based in the case of blurred sel offered to validate his claim was that in testimony.” Birch Dissent at 1296- rape one case he worked on he “identified precisely majority 97. That is what the head hair pubic hair” of a rapist serial and will not permit. now clarifies on four victims. R5 at B7-38.2 Had the reliability prong is not to be “subsumed” government’s expert similarly witnesses qualification prong reliability —“the failed to establish how their experience led discrete, independent, criterion remains a conclusions, to their the court would have important requirement for admissibili- been compelled to exclude their ty.” Majority atOp. 1261. However, as well.3 majority points as the experience may out,
While government sufficient to provided witnesses qualify a person expert, as an ipse specific quantitative and detailed bases for given dixit of an in a simply field is Thus, their opinions. the district court enough reliability to establish the of a acted within its discretion. particular opinion. majority Id. The BIRCH, Judge,
makes Circuit dissenting: clear that where a witness relies solely or primarily experience, then follow, For the reasons that respectful I explain the witness must expe- how that ly dissent. This is the classic case that law reached, rience leads to the conclusion study students adage understand the why that experience is a sufficient basis “hard facts make bad law.” Those hard opinion, for the experience how that (the majority facts calls it a “sad case” and reliably applied to the facts. The trial a “crime of unspeakable brutality”) have gatekeeping court’s requires function caused the trial court and a majority of more than simply “taking expert’s this court to an evidentiary rule, elevate word for it.” improperly administered, over a criminal Id. (quoting advisory Fed.R.Evid. 702 com- defendant’s right “present basic his own (2000 amends.)).1 mittee’s note witnesses to establish a defense. This
I agree that the district court properly right is a fundamental pro element of due excluded Tressel’s Texas, because he cess of law.” Washington v. failed to establish how his experience 14, 19, led 1920, 1923, 18 U.S. 87 S.Ct. L.Ed.2d notes, past As the dissent cases have not literature but admitted that he "doesn’t think always explicitly required more than mere anybody has ever studied the rates of trans- reliability in order to establish the fer.” R5 at 37. specific opinion of a involving physi- in cases *38 cians, experts, handwriting valuation analysts, 3.Obviously, a trial court would abuse its dis- officers, Yet, police and so forth. as the ma- admitting cretion in only the one clear, jority always makes courts must take expert, experts side's where the on both sides (1) expert’s care to specific establish how the proffer testimony equally reliable. experience reached; leads to the conclusion Gaskell, 1056, United States v. 985 F.2d 1063 (2) why expert's the is a sufficient (11th Cir.1993) curiam) ("It (per is an abuse (3) opinion; basis for the how the ex- of discretion to exclude the otherwise admis- pert’s experience reliably applied to the opinion party's sible expert of a on a critical Majority Op. facts. at 1260-61. issue, allowing while the of his adver- 2. sary’s issue.”) (internal Tressel also asserted expert this conclusion on the same was knowledge derived from his punctuation omitted). of scientific
1285 I. 410 BACKGROUND (1967); Mississippi v. Chambers 1019 1038, 1049, 35 284, 302, 93 S.Ct. U.S. ruling trial case was court’s this (“Few (1973) rights are more 297 L.Ed.2d for principal an of discretion two abuse an than that of accused (a) fundamental court the district committed reasons: defense.”). his own present error, parts: witnesses Daubert1 which involved two n ' below, (1) the exclusion of for the requiring As scientific evidence demonstrated experience-based via to be expert “gutted” its defense’s the defense’s (2) similarly requiring while See, 10. reliable & infra, notes 6 ble defense. ex- experience-based the Government’s And, court is indeed vested the trial while their perts to have a scientific basis for ruling upon the discretion with broad (b) testimony; court’s district evidence, we admissibility of relevancy and essentially deprived Daubert error Frazier case, this held until appropriately, opportunity present meaningful however, “[sjuch not, does discretion I in turn. address each error defense. of crucial relevant to the exclusion extend valid de necessary to establish a evidence (cid:127) Rulings A. Erroneous Daiibert Kelly, F.2d v. 888 United States fense.” trial, gave Frazier notice to Before (11th Cir.1989) 732, 743 . that he intended to offer Government . disturbing is that particularly isWhat Tressel, a forensic testimony of Robert government, court allowed the trial officer, police as investigator and former laboratory FBI objection, to use two over Evidence expert under Federal Rule of an technicians, wit- called as fact who were judge “assign[s] Rule 702 the trial 702. case-in-chief, government’s in the nesses that an testi ensuring expert’s the task of testify import'of as on rebuttal mony both rests on a reliable foundation forensic evidénee found láck of Dau relevant to the task hand.” and is any support requiring without crime scene Pharms., Inc., 509 Dow bert v. Merrell scien- testimony of a statistical or for their L.Ed.2d S.Ct. U.S. of such forensic nature. The lack tific (1993). Accordingly, Government precisely the its was import evidence limine to Tres- a motion in exclude made was testimony the defense witness Daubert, and the under sel’s See, infra, prohibited providing. hearing on accordingly held a district good 22. was for hearing, 7 & What During *39 documents, opinion that my professional “Again, it is qualifications: we Tressel's reiterated is no evidence to substantiate offering expert but there forensic as a are not him scientific at 24. rape this case.” Id. claim of upon experience." Id. at strictly based mine). whether he "an about if had (emphasis Asked by scientific was informed studies3: 250 sexual during assault cases his tenure. Id. at 9. addition, years, investiga- ten Tressel worked as In spent Tressel thir- County’s years tor in Cobb unit on Crimes teen investigator as chief in the Persons, unit Against investigates County which Office, Cobb Medical Examiner’s homicides, assaults, id. other rapes, sexual currently and operates owns robberies. R5 at 5-6. private and armed Tressel investigation forensic office. many that he worked on as estimated as Def. Ex. 1. Based on Tressel’s back- occurred,” No, rape id. at Tressel not a re- A: sir. There is an—one of the first things sponded "s[aw] that he no forensic evidence I ever received as a law enforcement officer, case,” rape really up the claim of in this and I'd have to to substantiate look this because I can’t alleg- exactly. where the sexual remember it id. Based on assault It’s a physical crime scene search edly passenger compartment [the occurred car], by Cunningham, evidence handbook Carl the amount a small of sexual contact Office, involved, United States Printing Government by evidence examined Tres- sel, 1973. he stated formed his conclusion Q: say regard What does it to this because ”[t]here should have been some area? hairs, transfer of either fibers or fluids be- Essentially A: thing.... the same tween the victims in this case.” Id. at 27 Q: you specifically I want to ask what mine). (emphasis say does it about the rates of transfer of laboratory Recall that the FBI found abso- hairs? lutely (pubic, body, transfer no of hair A: I don’t anybody think has ever stud- fluid, head) despite a closed and confined ied the say. rates of transfer that I can pro- collection site and meticulous collection They all indicate that transfer of hair is the 343-44, 352, tocol. See R9 at 356-58. most common trace evidence that can be found in a sexual assault case. by during When asked the Government Q: you your So opinion, when issued hearing experience Daubert whether his you weren't familiar with scientific lit- literature, by any informed academic Tressel regard erature in to the rate of transfer of responded in the affirmative: cases; hairs in sexual assault isn't that cor- on, you rely Government: What did sir? rect? Aspects Rape Tressel: Practical Inves- not, no, A: I am sir.... tigation, a Multi-Disciplinary Approach. Q: regard Now your opinion Q: And that’s whom? you placed your report that seminal A: Burgess. Robert Hazelwood and Ann frequently fluids are found in sexual assault Q: generally And what does the book particular cases ... what scientific litera- say particular opinion you about this you ture did base that on? here? Again, A: Aspects it was the Practical A: That thing you the most common Rape Investigation my find is transfer of hair and fiber evidence investigating rape cases. from victim to perpetra- victim—victim to R5 at 35-38. tor, perpetrator to victim. The academic upon by literature relied Q: thing you The most common find? support Tressel his contention that the follow- rape A: aIn case.... ing types "appear frequency Q: What you scientific literature are "hairs, fibers, fa- blood, in sexual assault cases”: concerning semen, miliar with the transfer of hair and saliva.” Robert R. Hazelwood & during a sexual assault? Burgess, Aspects Rape Ann Wolbert Practical just you A: Aspects I told Practical Investigation: Multidisciplinary Approach A Rape Investigation. (1987). fact, There's also a Forensic type In physical ”[t]he evi- Saperstein. Science Handbook Dr. probably dence frequently most associated Q: And say? what does it investigations with sexual assault is semen.” just Moreover, A: It They deals with hair transfer. Id. "especially at 111. if there was head, pubic, force, don't body, discuss physical limb hair. frequently hair is found as They just talk about hair transfers. evidence.” James E. Dep't Doyle, Wisconsin Q: Any (5th other scientific literature that Evidence Handbook Physical Justice, you ed.1993). you’re relying are familiar with or on? *40 pro- him “a circumscribe the limits Tressel’s court deemed the district ground, investigator.” ground R5 criminal on the that Tres- very qualified posed sel, experience-based expert, 66. needed as study data or on which to some scientific Evidence Requiring 1. Scientific for base his conclusions order them to though reliable4 —even the Government be as an ex- Despite qualifications Tressel’s the Daubert during hearing that tightly to admitted district court decided pert, typically we that is majority All stuff that see concedes: experience.... however, based on their argues, district that the Frazier Now, problem Court: I do have a erroneously treated scientific back- court particularly any if status, there is evi- prerequisite to ground as a scientific so, percent that, dence that shows that agree had it and we the court done hair, law, you pubic find I would have no time erred as a matter be- would have problem study.... he with but has no contemplates expressly cause Rule 702 problem saying I have no with him that’s experi- qualified experts may be based on for, However, they’re looking I do a what but have our review the entire ence. problem saying with that that’s what’s him suggests district court ex- that the record found, there, and if it’s not I don’t believe not because cluded Tressel’s rape, going a background, there was and I’m not to a but because lacked scientific opinions that. his were allow he failed to establish that only saying it methodologically or sound. Defense: But he's doesn’t reliable mine). rape, it (emphasis corroborate her seems Maj. Op. at claim quoted portions to do following me that those concerns he didn’t A review of the however, study hearing, clearly a are issues for cross-exami- demon- scientific the Daubert require a nation. trial court did in strates fact government testimony. is or ob- Per- And the distressed basis for Tressel's scientific haps directly jecting specific point quote because he is too rather majority can reader, talking I opposed as to than in broad terms. Where for the from the record thought "our-review-of-the-entire-record-suggests” have that the reason that he narrowing is it to his to that approach justify unjustifiable to its conclusion physical her evi- evidence does not corroborate required the trial scientific specific story very is statement without own a in the face of its concession. dence—even drawing Taking conclusion that she wasn't Exhibit Num- him Defendant's Court: saying sup- raped, it doesn’t Report Findings], and but he's [Tressel's ber port story, sto- rulings, doesn’t substantiate her using my ... I her that as the basis for ry. problems expertise with his as he have no Well, you’re trying very do obviously qualified investi- Court: what criminal get testify you to what should gator. witness ... arguing.... the conclusions that be But when comes to for, jury going lay But how is you propose to him I believe that’s offer Defense: you finding not exactly beginning know whether or should the line of cases what evidence, at, stuff, guess trace some and I as some Daubert are aimed fluid open evidence. gatekeeper, I it for those won't you have paragraphs paragraphs on Court: [the last two full scientific If should, you I have no paragraphs that would indicate page 2 the first two on said, testifying problem, as I with his that’s report, 2] page 3 of Tressel’s R5 Ex. for, you they but start look when talking what that I am about.... honor, prove that no case because trying there is I see it Defense Counsel: Your it, you got to have Agent they find have or the DEA didn’t the converse to the FBI instance, opinion. something just You drug says than Agent, case that more a showing study. my drug something typically need some based case, don't have expect we I have no idea whether —I expect pagers, we to see is, I enough me how often that baggies, expect we to see code in their to tell see knowing, upon and based expect no basis of telephone, we them to talk on the you've today, presented I would what at the see rendezvous fast food restaurants. *41 128 8 dis-
such scientific evidence existed.5 The trict court that ruled Tressel would be prosecutor's it. I don't that not allow think forthcoming failure to be a will seri- lapse. ous jury. ethical See note helps the infra. mine). scope, application, While (emphasis limited in at ’66-69 R5 probativeness, examples of the scientific liter- following exchange 5. The illustrative took (other ature available than the two sources hearing: during place the Ddubert Tressel) upon by relied principally are two you Government: If look what the academic articles. One article studied the stated, says pubic "following witness he the forensic rate evidence of hair transfers one commonly during episode analysis of most found sexual intercourse each of 15 couples” sample volunteer test rape investigation of a is the small size transfer of —a Mary-Jacque controlled environment. perpetrator hairs from victim Mann, Hair in Sexual Assault: a perpetrator from the to the victim.... Transfers Study, Six-Year Case 35 J. Forensic Sci. placed no There is evidence that's been (1990). study "[p]ub- This Honor, admitted that you you, before that leads Your lished controlled hair transfer studies are a that will conclude hair be transferred in X information, clarifying valuable source of but cases, percentage of under X circumstances ... such disappointingly studies are few in might or even what the that variables Id. number.” at 951. This article also con- control is whether hair transferred. ceded that "controlled studies here, All we transfer have is there is no transfer results casework examinations should not be of commonly piece hair is the most found given equal weight.’’ (emphasis Id. at 955 of during rape investigation. evidence mine). says No that when it's most second, A more recent article measured found, commonly no evidence frequency pubic of hair "the between transfer percent means it's found of consenting limited number of heterosexual cases, cases, percent percent of'the of partners” admittedly "limited —another cases, and seminal fluid evidence is Exline, study.” M.S.F.S., David L. et ah. percent found in two of the cases. Frequency During Pubic Hair Sexu- of Transfer You any don’t have basis based on the foun- Intercourse, al 43 J. Forensic Sci. placed you dation before in this record to (1998). The article made two conclusions: jury conclude that any this assists the "[fjirst, pubic during hair transfer does occur way... .(cid:127) intercourse, significant sexual and is forensic There routinely is no evidence that in a Second, evidence when found. further stud- rape investigation you will have hairs trans- ies in the area frequencies of hair transfer are ferred Nothing or hairs found. None. be- needed to better evaluate hair transfer evi- fore this court to that effect.... study dence.” Id. at 507. While this ex- placed No evidence has been scientific plained pubic is well "[i]t known that you you you before to show at what rate may during hairs be transferred certain sexu- expect can to see a transfer of seminal fluid offenses,” al it also admitted that con- "ff]ew after specific types sexual contact or after trolled studies reported been which could have activity.... sexual He is not even familiar predictions allow how frequently examiners any with scientific- literature to ef- might expect to observe such Id. transfers." fect. ... "fwjithout It also conceded that additional any Court: there Is literature scientific studies, not clear that our results available? people limited number would be found if my duty It present Government: is not larger examined, numbers individuals were this, it. I moving am not YourHonor. even under the controlled conditions de- Court: I but there realize mine). (emphasis scribed." Id. Importantly, you op available that are aware did "fpjrior article note that study to this Yes, is, Government: there YourHonor. [i.e., 1998], concerning research before mine). (emphasis Id. junc- 44-46 At this frequency pubic hair was based on transfer ture, court, prosecutor, an officer of either casework or limited human sub- forensic who was well aware scientific literature "fujntil ject now, data" and when asked in nature, and its inconclusive as discussed be- frequency pubic about hair trans- low, experts should rely only have advised the court of same so ference, could that the court fully could made a in- because the lack literature." Id. of scientific judgment gatekeeper. mine). formed as a (emphasis I study find But this was also of *42 Agent laboratory FBI Karen the standard testify regarding to allowed technicians — Lanning Agent Anthony Onorato— the site of investigating in procedures testify evidence discovered at that who examined the and to assault alleged sexual meticulously the crime after a care- Frazier was scene matching no hair or fluid disputed. process ful collection that no one testify, example, could for Tressel found. See, 24, 2; at e.g., R5 at Ex. at id. 67. most com- that forensic “[t]he analysis rape the during monly found Error Compounded 2. The R5 of hairs.” investigation the transfer is forbidden, rebuttal, however, 24, 2Ex. at 2. Tressel was On the district court’s at key however, propo- two testifying compounded to initial Daubert error was (1) the my review of was to use “Based on the Government allowed sitions: when documents, my it professional laboratory these same FBI technicians— available as fact by government no forensic evidence used the wit- opinion that there is experts. The rape testify in this as Gov- the claim nesses —to substantiate (2) experi- FBI as case,” agents of sexual ernment offered the “With the amount experts who would asked to ence-based be in the search warrant activity described testify import lack of forensic affidavit, expected that some it would be “leap” fluid that Tressel seminal evidence —the same of either hairs or transfer to make. The defense R5 Ex. allowed in this case.” at would occur objected, had arguing prosecution the trial Both the defense and 3. its intention to call key failed to communicate excluding judge recognized witnesses, violating pro- as the notice use for Tressel testimony left no further result, Rule of Evidence 16.7 As visions Federal R5 at 65-66. witness.6 court, though agreeing district lack of foren- The was left elicit the defense the Government should Frazier from two defense matching sic evidence itself,” kidnapping credibility on R5 at probative value in that examined little victim, couples jury did not believe the "six Caucasian if hair transfer of rate of very strong argu- combings im- "a pubic hair defense would have who collected their following Id. at 505. mediately intercourse." [the victim's] ... that all of ment by cited academic literature kidnapping portion The relevant her including the testi- significant inconsis- also reveals these studies disregarded,” 56. The mony be id. at should reported transfer rates between tencies in acknowledged that have been the few other studies that issue, these and to the sexual assault would be relevant Indeed, ranged from performed. the rates and, 56-67, eviscerating after Tres- see id. 506; forty-five percent. See id. at zero to acknowledged testimony, proposed sel’s Mann, rigidly applied supra, at If Tressel, id. had no further use the Defense alleged rape, each with their specific cases at 65-66. variables, these dissimilar circumstances Agent Lanning poten- Government called may significant source 7. After the studies of, evidence, Overall, paucity ob- inconsis- the defense present rebuttal tial error. between, appropriate exchange place: con- tency following and lack of jected took situational variables in trols and common honor, just I think that it's Defense: Your body that the demonstrate these studies attempt government to wholly for the unfair infancy. knowledge its this area is still in as I’ve called use these witnesses that qualitative testimony of- By comparison, the were their con- who under fact witnesses relatively by have been Tressel would fered inoffensive, now, say does in their case the rule trol — hardly po- unobjectionable, and chief, govern- what the I think that but here lemical, en- its wholesale as evidenced games doing playing to avoid—to ment is leading text- the field’s dorsement one of They repeated- sandbag the defendants. —I books. writing ly Government] both [the asked motion, discovery but my initial and with advised the court 6. Defense counsel calling subsequently, if intended also is "abso- a sexual assault occurred whether re- any expert And his routine witnesses. lutely impeaching [the victim's] to ... critical forthcoming expert during more with its wit- its been case chief.8 Unlike Tressel, nesses, ultimately overruled the defense’s court permitted the techni- objection, reasoning requires testify that Rule experts cians to regarding “the prosecution import notice when calls an of the fact that there was nothing was, know, sponse my obligations anything they going I I know else if are to be Rule and I don't have under access to defense case or in our rebuttal case.... *43 know, They you , these I proffer witnesses. going Government: We that we're are— them, but, know, subpoena you can stance, asking for in- to be them about their vitae, get matters, I can't their curriculum qualifications asking in these n witnesses, only subpoena import can them as as testimony they them what the this of wit, fact witnesses.... gave in this case was. To what the is Well, now, you import me Court: let ask a cou- the nothing that there was fact ple questions. They you give cop- didn't Specifically, the does fact that found? reports? ies these necessarily there is no hair transfer found got I Defense: All was the —these—I— mean that there is no sexual contact? Does your got, this is what I Honor. the fact that there was no seminal fluid reports. Court: The scientific necessarily found mean that there was no that lists— n report Defense: The scientific contact? talk sexual And we'll about the very that they states what exhibits go —it variables that into whether there is a received, analysis what their —what their transfer of seminal fluids. And we'll ask item, showed as to item to and what their questions journal them about scientific arti- Nothing conclusion was. about their under- cles that have been written about transfer of know, you lying, like what their was alluding hairs. [Other than arti- two as the to likelihood that should this or very way, tangential cles. in a the articles present, things you shouldn’t be the sorts of were never or introduced entered into evi- expert testify would use an to And to. other dence. See R9 at 370-71.] they've what than elicited on the stand as to this, mean, I testimony to this is rebut the what, qualifications, you their I don’t know put They that the defense has in. are tell- know, they what basis making have for ing jury something, this means opinions. these I many don't know how got right light I’ve to shine on in in, rape they offenses have been involved I rebuttal. That’s all. just any way .challenge don't have to them. any Defense: How I prior am without And I didn't have to information antici- supposed notice to cross-examine witness pate they say what to use with anoth- on this? honesty, And I think in all Your expert er that I could call because the Gov- Honor, what the contemplates rule if has avoided calling ernment Rule 16 expert given I call an that I have notice them rebuttal.... under Rule then the Government can they I [I]f knew what their —what were expert refute that in their —in their rebuttal. going testify regarding to experi- to their contemplate But it not does that out of the examinations, rape ence in other like how they going they going blue are are call to — frequently body exchanged are fluids expert they an witness who have control whatever, then I could perhaps have called over, they who have access to advance somebody GBI lab or from some trial, and I not did convert this fact similarly other lab who is to situated refute they witness that created into an that information.... witness. Honor, Government: Your as we said at mine). (emphasis R9 at 359-64 beginning, requires give Rule 16 tous contrary 8. Court: It’s not to experts going notice the rules because we’re to call clear, your it's hot case in our case chief. I want to be in chief. We made a decision though, experts inconsistency call that there an to in our case is not in chief. We my rulings. you provided laboratory didn't —we said reports I could not use Mr. them, provide expert, to we as [sic] didn't Tressell and had summaries of I concerns they might testify qualifications what things to on there about his other ar- scientific calling because we weren’t eas. I them wit- think —and I don't to want think —I’m people say nesses. These you been called convinced that I did at the time could - require defense. rule does not him us use for a factual witness and how often provide summary here, of their this was—the same as I allowed how same, do the allowing while not Tressel surprisingly, Not both R9-363. found.” principal eviscerated Frazier’s essentially the lack of forensic agents testified only practical questioning did not neces- matching Frazier defense — credibility if that no sexual victim show that to the conclusion sarily lead occur, R9-371, rape did not neither did the contact had occurred. court even ad- kidnapping.9 The district only Viable B. Frazier’s Defense say, much.10 Needless to mitted as Eviscerated Government, closing argument, in its testify importance as to stressed the agents FBI Allowing the evidence, lack of Lanning and Onorato that no import finding forensic it, wrong right. had the but Court: All Then I he saw occurs how often often this but, express opin- impression, again, part I would not allow him that’s *44 beyond thought were his field I fallacy my ions that the of—this is first contact with expertise. Magistrate the is the one who case. Unlike mine). (emphasis it, at Id. 364-65 dealings I don't even know has had with actually I indictment. In that have seen the ex- rulings perhaps were inconsistent These I I don't fact think have. judge’s re- the trial confusion acerbated right. rape All is not an essen- The then being was garding the on which he issue crime, right? the tial element of namely, it was whether asked to rule— not an essential element of Defense: It’s kidnapping. rape The fol- regarding issue crime, part a [the the but it’s central lowing judge’s the trial comments illustrate kidnapped, was allegation that she victim’s] confusion: certainly lawyer a whether or endeavoring prove as They her are to Court: defense absolutely raped, ... a sexual assault is as I understand it here not there was me, Honor, I impeaching credibility Your my Government: Excuse to her on critical trying to interrupt, to but we’re hesitate kidnapping ... the itself. kidnapping. prove a pretty I think much wheth- Defense: And prove you’re trying to a I know Court: kidnapping actually a is er or there not rape part kidnapping, but the issue of the is entirely victim's] on testi- [the based almost it, it ... is not? mony, why description of and that's her endeavoring you’re I not correct that Am point happened, if what this focal changes prove rape a the nature of to which jury, story is to be believed her not the sentence? have, lawyer, again then I as Mr. Frazier’s ex- necessarily. To the Government: Not argument jury all very strong that a going put up to a com- tent ... that we're testimony including kidnapping of her says during my plaining who kid- witness testimony portion should be disre- of her assaulted, yes sexually ... napping I was garded, as well. may wrong impression I have the Court: beginning right. am to Court: All I focus .,. about this case. ... issues and the relevance now. on the trying my have been to evaluate I in mind getting be- I I am Court: think focused rape proof the crime of inci- this to just only your got that was cause I brief filed kidnapping, ... dental I ... today just a came in minutes before few thought question I there was a But 52-54, mine). (emphasis atR5 56-57 proving rape purpose a of the sen- opposed being mandatory life tence the court that advised 10. Defense counsel kidnapping be a where there would not is “abso- a sexual assault occurred whether mandatory I life. Am correct? impeaching lutely victim’s] ... [the critical to No, ... The Your Honor Government: itself,” kidnapping id. at credibility on the kid- is an element of the sexual assault not victim, jury not believe the if the did napping ... very strong argu- have "a the defense would No, agree you. I Court: isn't. testimony victim's] all [the ment ... that misapprehen- where I was under That’s portion kidnapping of her testi- including the sion, you thought had I there was—that The mony disregarded,” id. at 56. should be got know where I a burden —I don't acknowledged that from.... not mean experts quote did forensic evidence studies on which to hence, kidnapping rape- and, rely, argument could —did make the bald — Government also mentioned occur. The lack of forensic evidence did not it required the scientific “studies” support the victim’s account of experts.11 not of its own Tressel but events.12 defense, hand, any the other without issue, got you relevant to sexual assault at look the extent to which 56-67, and, id. eviscerating see after Tres- says can corroborate what [the victim] testimony, proposed acknowledged say sel's being does the she is not Tressel, had the Defense no further use for id. something? truthful about And that’s the at 65-66. significance why rape in this —that significant case so becomes because it's closing argument, 11. In its the Government large portion such she of what de- stated: .... scribes Now, you today heard lot of [Tjhere No, hair, is no hair. no no se- presented and the defense has evidence to men, liquid, forget Why no the semen. you trying get you to focus on evidence of got activity, there —we’ve all of this—this rape examination kit and the examina- car, movement back and forth in the clothes, point you tion and wanted to out to know, you hairy look him. He's a man. that no hair was no found and semen was falling We don’t have hair off into the they your found. And want to take atten- car? *45 away happened tion from what to vic- [the we collecting And have the FBI all of this you tim] and focus on this that so will oh, they say, going evidence. Are to now conclude, assume, well, we that no—no well, really pretty shoddy we're at this. No. found, hair was found and no semen was lab, they problems We know at the but point couple and problems, we to a of other any prob- there is no indications we have conclude, you on based need to I lems in this case with the collection of they going argue, you think are to that can’t it, it, you you evidence. You saw heard see believe [the about the sexual assault. victim] it, rip they apart the car and send it to the you And if can't believe about her the sexu- No, speck lab. not one of hair from this. assault, you al can't believe her about not, again, And we’re I think the lack of Well, kidnapping. that's not true.... pubic pretty significant you've hair is when all, First of the fact that no hair is found got activity of all on front seat of anything. you doesn't mean As heard from the car. the studies involved there are lots cases of 417, 419, Id. at 428-29. majority— where no hairs are A found. The "activity” search warrant described the large majority cases where no hair is in the Ford Escort as follows: found.... Frazier, [The victim] stated that ... [] testified, The just witness Mr. Onorato having while point, [the at knife victim] told ago, rape minutes that in the kits few pants panties [the victim] to take her does, perhaps percent 20 or 25 the time he off, at which she did. [The victim] stated any. doesn't find put vagina that Frazier [] his hand in her mine). at (emphasis R9 407-09 began rubbing it. victim] stated [The During argument, closing its the defense that Frazier [ ] then took his clothes off and stated: victim] asked if [the the seat reclined. [The purpose government's they victim] stated that she told whole of the Frazier that case, did not recline back. their whole stated [The victim] scenario is Frazi- Mr. And, kidnapped er had rape [] Frazier sex with on [the victim] to her. her you story, top. if bottom and [the [] listen to Frazier on the victim’s] [The the focal point story got up stated rape. victim] [] of this Frazier whole is the If the occur, get top, sexual told to assault did not her which she [The then I submit did. you impacts have to—that so stated that [the victim] [ ] vic- after that Frazier told to, dick”, credibility you my tim’s] her "suck cannot convict in which she com- [kidnapping].... plied. him of [The victim] stated that Frazier [] you somebody knees, get [B]efore can convict told her to on her hands and something as kidnapping any- serious as which she did [] Frazier inserted case, thing, really, certainly you penis but in this into her anus. ensuring that an judge the trial the task dis- arguing that the appealed, Frazier when rests on a reliable expert’s its discretion both abused trict court guise testimony under the the task at limited Tressel’s and is relevant to foundation Daubert, eviscerating his thereby 597, 113 at 2799. Id. at S.Ct. hand.” viable defense. scientific proffer expert Faced with a then, testimony, judge the trial must II. DISCUSSION outset, pursuant to determine (a) section, proper state I will In this 104(a), expert pro- whether the is Rule (b) review, discuss district standard (1) knowl- testify posing scientific (c) rulings, and Daubert erroneous court’s (2) of fact edge that will assist the trier ruling on Frazi- effect of this discuss fact in or determine a understand de- meaningful ability present er’s a preliminary This entails as- issue. fense. reasoning or of whether the sessment methodology underlying A. Review Standard of scientifically valid and of whether that is court’s exclusion a district We review reasoning properly can methodology rules of the federal testimony under expert applied to the facts in issue. Unit- for an abuse of discretion. (footnotes Id. at S.Ct. (11th Paul, 175 F.3d ed States omitted). Thus, proffered testi- Cir.1999). inter- court’s for the district As admissible, a must deter- mony to be Evidence Rule of of Federal pretation that: mine re- Id. No error plenary. our review of evi- (1) or exclusion testify the admission
garding qualified a substantial “unless dence is reversible regarding the matters he competently Fed. is affected.” right party (2) address; the methodolo- intends to *46 103(a). R.Evid. expert the reaches gy by which as sufficiently reliable de- conclusions Rulings Daubert District Court’s B. The inquiry man- termined the sort of Evi Rules of the Federal Rule 702 of (3) Daubert; the testimo- dated an qualified “a witness dence allows fact, through of the the trier ny assists skill, experience, expert by knowledge, technical, scientific, or of application testify “in the training, or education” understand the expertise, to specialized (1) otherwise, if the or form of an is- fact or determine or sufficient facts testimony upon is based sue. (2) of data, testimony product is the the Chem., Inc., City v. Harcros Tuscaloosa of (3) methods, and principles and reliable Cir.1998). (11th 548, 562 158 F.3d principles and applied the the has witness keep judge’s role is to “[t]he But while case,” reliably to the facts the methods information and irrelevant unreliable technical, “scientific, that the provided supplant “is intended jury,” not knowledge will assist specialized other system the role adversary fact the evidence trier of to understand Corp., Med. 184 jury.” Allison v. McGhan In Daubert fact in issue.” to determine a Cir.1999). (11th 1300, 1311-12 F.3d Pharms., Inc., 509 U.S. Dow v. Merrell one, a liberal standard is admissibility 579, 2786, L.Ed.2d 469 125 113 S.Ct. 1160, Hankey, 203 F.3d States (1993), “assign[ed] to United Supreme Court 5, Attach. A. Def. Ex. Frazier had sex [ ] stated victim] [The again. with her 1294 (9th Cir.2000), jury.” Thus, experts may review the “[a]
1168
Id:
“take
after Daubert shows that the
step
caselaw
re-
the further
of suggesting the infer-
jection
testimony
expert
exception
is the
ence which should be drawn from applying
than the rule.” Fed.R.Evid. 702
specialized
rather
knowledge to the facts.”
amends,
notes,
advisory committee
2000
advisory
notes;
Fed.R.Evid. 702
committee
mine).
(emphasis
Proposed
Rules. This is true even if
testimony “merely
an
jury
Courts have found that
abuse of
assist[s]
dis-
interpreting
significance
under
cretion occurs when
Daubert the
of the evi-
too,
dence,”
Brown,
admissibility
high....
bar is
“Trial
United States v.
7 F.3d
(7th
judges
648,
Cir.1993),
must exercise sound
discretion as
draws on “common
sense,”
gatekeepers
Glover,
under
United States v.
265 F.3d
(6th
or,
...
must
Cir.2001),
[We
not]
Daubert.
elevate
helpful,
while
role of
gates
“obvious,”
them the
St. Peter at the
nonetheless
United States v.
heaven, performing
searching
Sellers,
(4th
inqui-
Cir.1977).
566 F.2d
ry
depth
Indeed,
into the
of an
witness’s
“whether the specific expert testi-
separating the saved from the mony
upon specialized
focuses
observa-
soul— '
damned.”
tions,
specialized
translation of those
into
(citation
theory,
specialized
observations
Allison,
the-
omitted)
184 F.3d
itself,
ory
application
or the
of such a
Co.,
(quoting McCulloch v. H.B. Fuller
case,
(2d
theory
particular
1038, 1045 Cir.1995)).
expert’s
F.3d
will
‘upon
often
rest
experi-
Because
district
court forbade Tres-
confessedly
ence
foreign
kind to [the
testifying
sel from
key propositions,
to two
”
jury’s] own.’ Kumho Tire Co. v. Carmi-
I
proposition
address each
in turn and
chael,
137, 149,
526 U.S.
119 S.Ct.
then discuss how the district court’s ruling
(citation
(1999)
1295 rape, but failed to substantiate it. testimony of the ex practices habits Circuit testimony The Seventh on helpful Id. at 652. To exclude such pert. court’s refusal ex the district affirmed on inappropriate ground relied the dis- issue, testimony on the ultimate clude manifestly trict court was reversible error. might average juror reasoning that “the the absence to determine whether
unable Opinion 2. Tressel’s on the Evidence typically asso drug paraphernalia certain in This Expect He Would to Find significant.” cocaine is ciated with crack Case mine); v. see also Erickson (emphasis Id. The trial court also refused Tressel’s Healthcare, Inc., F.Supp.2d 131 Baxter proffered testimony that “it ex- would be (N.D.Ill.2001) 995, (permitting medi pected that transfer or hairs some either testify information con cal expert or seminal fluid would occur this case” medical records did plaintiffs in the tained testimony it because found this unreliable allegations). her support one of not for lack of data. R5 at Ex. 2 scientific way, Tressel’s conclusion In the same particular, at 2. In the district court fault- absence this case—that the forensic not having ed Tressel for rested con- the claim substantiate evidence did not study any empirical clusion on and disfa- jury to un helped have rape —would testimony it vored his because negative significance derstand in qualitative couched terms rather than drawn; prosecu what the to be implication ” hard numbers or statistical data. See note “import referred to as the tion even ruling on an This was based Its infra. R9 at 363. ex the lack of evidence. incomplete understanding the back- court was therefore by the district clusion required expert of an witness. ground prof its Tressel’s an abuse of discretion. a legal did not state con fered expert The text of Rule 702 dictates that innocence, guilt or to Frazier’s clusion as may experience, be based on status jury what result and it did “tell Advisory Committee Notes dictate that v. Cas. & Montgomery Aetna reach.” “may provide ... suffi- experience alone (11th Co., F.2d Cir. Sur. testimony.” cient foundation 1990). analysis was clear and was His doubt, the Rule cmt. at 290. Without by undisputed findings factual supported ruling impos- Supreme Court’s Daubert from the al as to the evidence retrieved duties on trial gatekeeping es difficult “oath-help leged crime scene. No mere courts, exacting which involves an one of Waller, er,” F.2d 811 n. Hanson any proposed foundation of assault (11th Cir.1989), Tressel’s testimony to determine whether average juror, un assisted true, resting out of plumb stands intelligently “to qualified determine shaky ground. To survive and unreliable *48 degree,” best United States possible the juridic and meet the standard this ordeal (11th 1545, 1558 955 F.2d Cir. Lankford, testimony reliability, expert evidentiary of 1992) J., (Hoffman, dissenting), what (1) methods “ground[ed] must the be single of that not a shred of make the fact (2) science,” authenticat- procedures of and presented to link evidence was physical subjective un- by than belief or ed “more alleged qua victim victim Frazier to (3) “supported and supported speculation,” testimony have as this case. His i.e., ‘good by appropriate validation — any tendency to over- or against sured on is known.” Dau- grounds,’ based what finding; underestimate the value this bert, 590, at 2795. at 113 S.Ct. 509 U.S. indeed, evidence could the lack forensic “[Tjhe only not must scrutinize Frazier of trial court nor condemn neither exonerate 1296 mine). expert and methods used principles by testimony.” (emphasis Id. Indeed, principles also whether those
expert,
many
but
“there are
different kinds of
properly applied
experts,
many
have been
and
and methods
different kinds of ex
Tire,
150,
the case.” Fed.R.Evid. 702 pertise.”
the facts of
Kumho
526
at
U.S.
note,
advisory
2000 amends.
119
at
committee’s
S.Ct.
1175. Even after Kumho
Tire,
“solely
must
on
“there
prin
question
the court
focus
is no
that
expert
While
an
the,
methodology,
may
not on
ciples
properly
testimony
conclu
still
base his
on
Daubert,
they generate,”
study
‘professional
that
or personal experi
sions
”
2797,
Virani,
at
594,
113 S.Ct.
“conclusions
ence.’ Maiz v.
253 F.3d
U.S.
641,
(11th Cir.2001)
entirely
not
methodology are
distinct
668-69
(holding
expert
that
another,”
“nothing
...
testimony
one
re
on
“passport-stamping prac
court to admit
quires
immigration
district
tices Mexican
officials ...
is connected
data
existing
largely
expert’s]
evidence that
based
on
personal
[the
expert.
A
only
ipse
experience
dixit
rather than
testing
verifiable
or
’
admissible)
mine).
that
may
simply
conclude
there is
(emphasis
studies”
great
analytical gap
too
an
between
However,
type
testimony
opinion proffered.”
data and
'Gen.
generates certain difficulties in evaluating
Joiner,
136, 146,
Elec. Co. v.
522 U.S.
reliability:
its
types
“Some
of expert testi-
(1997).
512, 519,
S.Ct.
1297
omitted).14
short,
omitted).
tion marks
In
“wheth-
while
experts,
All
marks
tion
reliability
na-
adapting
inquiry
the
testimony
professional
basing
upon
er
testimony proffered,
of the
courts
em-
ture
experience, [must]
or personal
studies
and hard at
ex-
long
must still look
the
the
level of
courtroom
same
in the
ploy[ ]
pert’s principles and methods:
the
characterizes
rigor
intellectual
example,
a law enforcement
For
when
the relevant field.”
expert
of an
practice
agent
regarding
testifies
the use of code
152,
Tire,
119
at
at
S.Ct.
526 U.S.
Kumho
transaction,
drug
princi-
in a
words
the
ap-
must be creative when
1176. Courts
agent
partici-
the
is that
ple
by
used
principle, more accom-
panoptic
this
plying
regularly
in such
use
pants
transactions
theory than in
modating
practice.
of
code words to conceal the nature
their
developed
in Daubert
the Court
While
The
the
activities.
method used
of reliabili-
four,
measures
non-exhaustive
application of
ex-
agent is the
extensive
inquiry
envi-
ty,13 emphasized
“[t]he
analyze
meaning
the
perience to
is ...
one.”
by Rule 702
a flexible
sioned
long
principles
conversations. So
as the
594,
at
pendfs]
type
of this
deductive
particular
and the sub-
tioned instances
expert’s
expertise,
instance,
reasoning.
physicians and
testimony.”
119
For
ject of his
Id.
(citation
professionals,15
valuation
quota- other
at 1175
and internal
S.Ct.
notes,
advisory
702
committee's
proffered
Fed R. Evid.
are whether
scientific
13.These
amends,
tested,
(and
been)
(citations
knowledge
quota-
has
can
2000
and internal
technique
theory
has
sub-
omitted).
a
been
whether
tion marks
jected
peer
publication, whether
review or
potential
rate of error” of
the "known
example,
relying
is
the witness
"[i]f
14. For
acceptable
technique is within
scientific
solely
primarily
experience,
then
discipline,
particular
and to
bounds for
experience
explain how that
witness must
accepted
has been
what extent
reached, why that
leads to the conclusion
community.”
the “relevant scientific
within
opin-
experience
is
sufficient basis for
593-94,
S.Ct.
2796-97.
experts,16experts
important
customs
is an
factor in
handwriting analysts18
and
are
practices,17
evaluating
expert’s methodology
an
and
their
to derive
conclusions
permitted
often
particularly emphasize
courts
this Daubert
all,
After
of
“[ejxperts
all
in this fashion.
reliability
experi-
factor when
focuses on
observations
conclusions
kinds
tie
ence.” Groobert v. President & Dirs. of
of
Judge
use
what
Learned
through the
Coll.,
Georgetown
1,
F.Supp.2d
219
‘general truths derived from
called
Hand
(D.D.C.2002).
other
Daubert factors
”
148,
experience,’
at
specialized
...
id.
importance.19
often
recede
“The more
(citation omitted),
at 1174
and
119 S.Ct.
subjective
expert’s
and controversial
might
draw
“no one denies
inquiry,
likely
testimony
the more
from a set of
a conclusion
observations
should be excluded as unreliable.” Fed.
specialized experi-
and
based on extensive
advisory
notes,
R.Evid. 702
committee
156,119
ence.” Id.
S.Ct.
1178.
token,
By
2000 amends.
the same
the less
four,
conclusion,
Considering the
controversial a
likely
non-exhaustive
the more
reliability developed by
may
measures of
it is
For
example,
reliable.
“be
Court,
acceptance
Daubert
“[gjeneral
useful to ask even of a witness whose
studies”);
Co.,
physician
required
rely
testing
is not
"to
on definitive
"verifiable
&
Marx
published
Club, Inc.,
505,
concluding
studies before
that ex-
v.
Inc. Diner’s
550 F.2d
posure
particular object
Cir.1977)
or chemical was
(2d
("Testimony concerning the or-
illness”);
likely
plaintiff's
the most
cause of a
dinary practices
engaged
of
those
the secu-
Pollard,
F.Supp.2d
United.States v.
rities business is
under
admissible
the same
(E.D.Tenn.2001) (finding
physi-
theory
testimony concerning
ordinary
as
testimony
age
young girls
cian’s
as
of
practices
physicians
concerning
of
other
pornographic videotape
is admissible where
customs.”).
trade
multiple
"upon
personal
it is based
view-
ings of
and
the video
the correlation of his
See,
Paul,
e.g.,
18.
United
States
175 F.3d
lengthy
experience
observations to a
clinical
(11th Cir.1999) (upholding
909-10
dis-
assessing chronologic age
physi-
based on
handwriting
trict court's admission of
ex-
development”
cal and sexual
because
pert’s testimony
personal experience
based on
"properly qualified
possess[ed]
valid sci-
knowledge
general principles
in the
knowledge”);
entific
technical
Proto-
and/or
Jones,
unreliability objection);
field over an
Servs., Inc.,
Corp.
Comm
v. Novell Advanced
(upholding
1299 but instead concerns the common knowl- purely experience, on expertise is based at distinguish edge Experts the field the time. say, tester able to perfume a sniff, knowledge a his of the at whether standards among 140 odors govern in the is of what part of a kind that others their fields—that is preparation acceptable.” qualifies experts.... Although them recognize as field would Tire, at it to have a citation to 526 119 S.Ct. would ideal Kumho U.S. Therefore, expert’s to opinion publication support “that some medical an 1176. may testify not proposition, expert] [an studies does th[e] based on statistical is not inadmissible, provided the standards or common knowl- about render of the commu- edge [relevant academic] is based on reason- ... accepted ... methodology generally nity. ing or profession or disci- particular
within a Id. 1001. Third Circuit likewise 20 York, City 151 Katt v. New pline.” expert’s “testimony recognized (S.D.N.Y.2001). F.Supp.2d 356 merely nor conjecture speculation” neither case, true, as in is all the more This publication is no available because there are quantitative studies probative where it if the is “well substantiate instance, re- For one court unavailable. community,” recognized the scientific tes- a statistical physician’s fused to admit theory,” “sup “not a novel scientific experience. “To general on timony based by widely accepted knowl ported scientific testify sta- specific about allow doctors edge,” general and the “relied on their questions and base tistical medical general experience readings, medical testimony only experience general textbooks, on knowledge, and stan standard qualified are say be to that doctors v. Terminix dard references.” Kannankeril merely subject (3d experts every ternat’l, Inc., medical In F.3d 809 Cir.1997). Erick- they wear white coats.” Thus, because in expert opinion is not son, F.Supp.2d at But the same merely for want of em herently unreliable similarly qualitative based permitted com pirical studies if information is testimony: monplace “[statistical in the field invariably not in the is methods are ... used
Although
mere
field
Katt,
F.Supp.2d at
specific
...
sta-
such research.”
not a reliable basis for
...,
studies are
opinions
opin-
“experience-based
357. Where
...
here [the]
tistical
statistic,
industry,” a
accepted in the
specific
generally
ion does not concern
fortify
rulings suggest
conclusions in manner
if
overstated
20. The district court's
courts,
only
willing
testify
Tressel had
been
it
largely
circum-
unverifiable
grace
government’s wit-
the careless
nesses,
princi-
spirit
and letter of Daubert's
vents
slapdash,
providing the court with
but
it,
tersely put
ples. As
so
"a num-
one court
numerical, guesstimations,
testi-
facially
his
pulled
is not
'scientific
out of
air
ber
68-70;
mony may
R5 at
have been admitted.
Erickson,
F.Supp.2d at
knowledge.’"
(characterizing
Maj. Op. at
see also
1264-65
resort to farcical solutions
1000. Rather than
testimony as
because he
Tressel's
unreliable
recognize
problems,
should
to difficult
courts
quantify
''expect”
de-
the word
could
qualitative
valid
the contest between
sexual assault
scribe
sufficient number
jury.
quantitative
properly
one for the
data
conclusions).
investigations
support
To
Daubert,
596,
The district
in this
conference
support
case did not
without
question
experience
Tressel’s
partic-
ing statistical data
expect
that he would
—his
ipation in 150 sexual assault
cases
the cause of
symptoms
classic flu-like
investigations—
thousands
crime scene
be,
Yet,
things,
all
the flu?
this is
application
of that
precisely what
the district court did in
undisputed
facts
the case—the absence
response Mr.
testimony
Tressel’s
based
any physical
link
Frazier to
rather
assumption
uncontroversial
the crime
rape.
The court
for-
instead
in his
experienced
field that an
forensic
bade his
because it was stated
investigator would expect to find hair or
qualitatively,
quantitatively,
and not
semen transfer
pro
sexual assault of
because he
any authority
failed to cite
longed duration in cramped quarters
proposition.
the field for the
See note
where,
here,
gathered
as
evidence was
That certain symptoms are indica-
infra.
from an uncontaminated and confined
illnesses,
tive of particular
that certain cus-
crime scene. This ruling requiring an
practices
toms and
frequently
are
used
—
experience-based expert
to substantiate
particular
industries,
legal
illegal, or
patterns
that certain
conclusions with scientific
are
data
stud
handwriting
of.
rarely
distinctive have
abuse,
been
challenged
ies—was an
discretion.
See, e.g.,
County,
Boncher v.
jail
Brown
that the number of
suicides in
instant
(7th Cir.2001)
F.3d
(upholding
high,”
486-87
"unusually
case was
where studies on
rejection
expert testimony
district court's
jail
available).
presumably
suicide rates were
charged
a father
Daubert Rul- Gaskell
involved
District Court’s
3. The
Inconsistent
ings
murdering
daughter by shaking
were
his infant
key
her to
Id. at
death.
1058. The
issue
was com-
trial
Daubert error
court’s
shaking
was whether this
was willful or
it excluded Tressel’s
pounded:
accidental.
Id. at 1062. The Government
*53
to
of the lack of foren-
relating
import
the
proffer
testimony
to
its
was allowed
the
of
at the crime scene—on
sic evidence found
expert, who stated: “We are all
to
taught
was not
the
this conclusion
ground
yet al-
support
baby’s
fragile.
data —and
head.
It’s
You
supported
scientific
the
to testi-
the Government’s witnesses
baby’s
lowed
don’t want to shake
heads [sic].”
similarly
very
omitted).
fy
(citation
to this
issue—without
Id.
The defense was
for their con-
requiring
support
scientific
forbidden, however,
proffering
the
rebuttal,
the Government
clusions. On
testimony
expert,
of its
who would have
fact
to
two
was allowed
convert
defense
general
public
testified to “the
lack of
agents
experts.
FBI
witnesses —the
—into
dangers of
an
shaking
awareness of the
of
tes-
proffer
Like the defense’s
Tressel’s
of
infant.” Id. We held that the exclusion
FBI
offered the
timony, the Government
the defense’s
was an abuse of dis-
expert
who
agents
experience-based experts
as
cretion and that this error was “compound-
testify
import
as to the
would be asked to
allowing
ed”
the
the
to
Government
lack of forensic evidence found
experts.
its
Id. at
present
1063-64.
ob-
the
Over the defense’s
crime scene.22
case,
Gaskell,
key
In this
similar to
the
jection,
agents,
surprisingly,
two
not
the
import
is the
of the lack of
issue
forensic
that the lack of forensic evidence
testified
cramped
in a
crime
evidence found
scene
matching
prove
Frazier did not
after
numerous acts of sexual
allegedly
alleged
sexual as-
had not committed
Gaskell,
activity.
Like
district
R9-363, 371,
saults.
387.
to present
allowed the Government
‘to
“It is an abuse of discretion
exclude
as
of its
witness
to the
opinion
par-
the otherwise admissible
evidence,
import
of this lack
but did
issue,
ty’s expert on a critical
while allow-
similarly
present
allow
to
its
the defense
adversary’s expert
his
ing the
”
expert on the issue. The district court
v.
same
United States
issue.’
by refusing
its
to
thus abused
discretion
(11th
Gaskell,
Cir.
985 F.2d
testimony re-
allow the defense’s
1993)
curiam);
United
(per
accord
States
import lack of forensic
garding the
(5th
Garber,
v.
607 F.2d
95-97
Cir.
evidence,
compounded
was
and this error
banc).
1979) (en
was the district
This
pres-
when the
was allowed to
Government
here, and
particular transgression
court’s
expert testimony on this same issue.
ent
an abuse of discretion.
constituted
Gaskell,
v.
In
States
we held
United
Error on Frazier’s
C.
Daubert
Effect
an
for the dis-
it was
abuse of discretion
Defense
to
trict court
to allow the Government
undoubtedly
of discretion is
While abuse
testimony on
present expert
the determi-
evaluate the
measuring
stick we use to
case,
in that
while not similar-
native issue
courts,
evidentiary decisions of trial
we
ly
present
its ex-
allowing
defense
must
it in
vacuum. We
testimony.
apply
forded
defense.
ent
complete
v.
defense.” California
Trombetta,
485,
Kelly,
467 U.S.
United States v.
S.Ct.
888 F.2d
2528, 2532,
(1984)
Cir.1989)
(11th
(citation
(empha-
ing the we said: district 404(b) normally by the Rule used prior government show evidence by the defen- similar offenses committed cases, In such strict standards for dant. admissibility BOURGEOIS, Winder, protect Roy defendant L. Jeff us Lecompte, But in the case prejudice. Becky Johnson, before Eric Watch, sought who to intro- was the defendant Plain- School of Americas of the informant’s scheme. tiffs-Appellants, duce evidence vigorous present His defense right v. required proffered the admission Dozier, Bobby PETERS, L. Con- Willie testimony. Columbus, solidated Government McClure, F.2d United States Georgia, Defendants-Appellees. (5th Cohen, Cir.1977); also see No. 02-16886. (observing F.2d at 776 “the standard [FRE for admission relaxed when of Appeals, United States Court 404(b) a defen- offered ] evidence is Eleventh Circuit. dant”). principled is no reason to There 15, 2004. Oct. a criminal defendant same begrudge admissibility remedial benefit under Daubert. notes motion. the Daubert essentially expertise government gander cooked clear that Tressel’s it became also experience,2 on which was based his goose in this case. defense’s Pharms., Inc., During hearing, ex- Tressel Daubert Dow 1. Daubert Merrell investigation of opinion that the pressed his L.Ed.2d 469 113 S.Ct. U.S. n "thorough" and that (1993). crime was scene rape “protocol examination proper [a] for ("the proffer”). De- followed.” Id. at was explained "we are not counsel Defense whether, counsel then asked Tressel exper- fense- offering Mr. scientific Tressel his Rather, on all the information he reviewed qualified based we believe he's tise. crime, "opinion he had experience ... in crime about ... based description of the sexual not the investigations.” at 42. Defense whether-or scene R5 ... provided victim] [was] [the assault "someone like Mr. counsel stressed that Tres- responded Id. at 23-24. Tressel necessary tie all accurate?” "to sel” my available review of the "based on together” jury. for the Id. Defense counsel