Appellate Law

CA10: Daubert in criminal proceedings

By S. COTUS

White Collar Crime Prof Blog points to US v. Nacchio, No. 07-1311.  This is an insider trading case, but it is also a very good one for anyone that had to deal with scientific evidence.  Strangely, the Washington Legal Foundation supported the defendant in a criminal case.  I wonder why.  Oh yeah, he is rich. 

There are some ironies.  The District Court chided the government for writing 63 pages in opposing proffered expert testimony, because it said it should obviously be excluded.  The Tenth says it should have been admitted.  Why do judges say things like this?

The court differentiates between Fed. R. Crim. P. 16(b)(1)(C) and Fed. R. Civ. P. 26(a)(2)(B)(I), and explains the greater burden that the parties have in civil cases have to disclose the basis for expert reports.  Of course, this kind of decision will probably enable the government to use more of that silly ?cop as expert? testimony used to put the lower classes in jail.

Whatever the case, the Tenth says a lot about what District Courts must do when faced with a Daubert challenge.  (Sexy issues dealing with the government's program to violate the FISA are not seriously dealt with.)

And, agreeing with me, the Tenth says, ?Armchair economics is not the way to decide complex securities cases.? Is this a diss on Posner?  I think it is.  Posner has taken it upon himself to trash experts (as a matter of law) so that they can never testify again in the Seventh without making specific findings himself.  In a later post, WCCPB says that this "reaffirms that principle and emphasizes that included in the right to present a defense is the right to explain that defense to the jury."

By now you should know (if you don't, you are a bad lawyer, lack detail orientation, and should be disbarred) that the Supreme Court in Melendez-Diaz v. Massachusetts, 07-591 (police "lab" reports and Crawford).

SL&P comments here.

Full post as published by Appellate Law and Practice on March 17, 2008 (boomark / email).