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Excluding Evidence: A Primer and Lesson as the US DOJ Goes Down

December 26, 2011

1. History, 2. Law, 5. Pre-Trial

Excluding Evidence:  A Primer and Lesson as the US DOJ Goes Down

We’ve all heard of cases where evidence was excluded from the eyes and ears of the jury.  Television is full of dramatic examples.  Wailing waifs can be heard to claim that some criminal “got off on a technicality.”  Probably the first example most folks would give is a cop searching without a Warrant.  That evidence, termed “fruit of the poisonous tree,” is often excluded.

But here’s another side, and one that is common:  Allowing an expert to offer an opinion.

Here’s Rule 703 from the Federal Rules of Evidence:

An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.

Quick note – the FRE is important even though it is the federal rules as opposed to the various formulations in force within the states.  The feds were the first folks to codify a Rules of Evidence. As such, most (maybe all, dunno) states emulate the FRE right down the rule numbers.

Let’s grab some instructive phrases from 703:

An expert may base an opinion

If experts in the particular field would reasonably rely on those kinds of facts or data

they need not be admissible for the opinion to be admitted.

may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.

What does an expert do on the stand?  Offer an opinion.  That is the key difference between an expert witness and what is referred to as “lay witnesses.”  Lay witnesses can offer limited opinions (see Rule 701), but most often are testifying about facts – what they saw, heard, sensed, etc.  The initial portions of expert testimony may feel the same – what did you see, hear, or sense? – but then we enter the opinion zone:  And did you form any professional opinion based upon that information?

The information – data or otherwise – used by the expert must be of a kind reasonably relied upon by other experts in the same field.  We can’t, for example, base an opinion upon data analyzed with bleeding-edge technology.  We need history and general acceptance by the expert community.  Through time we learn how analytic results can be misinterpreted or source data contaminated.  Just look at the Environmentalists backtracking on plastic bags over paper bags to get a feel for premature ejaculation of an opinion.  Concerning bleeding edge, remember how IBM put everything it had into their Watson computer for the Jeopardy! face off against humans?  Here’s the comparison:

Coding that “human-ness” has been the primary work of 25 of IBM’s top research scientists and they’ve accomplished it with a mish-mash of algorithms and raw computing technology. Watson is powered by 10 racks of IBM Power 750 servers with 2,880 processor cores and 15 terabytes of RAM; it’s capable of operating at a galloping 80 teraflops.  With that sort of computing power, Watson is able to quickly analyze natural human language, scour its roughly 200 million pages of stored content — about 1 million books worth — and find an answer with confidence in as little as 3 seconds.


Me (replete with my proclivity to tip Irish Whiskey … well, not me, but two other guys somewhat similar to me only they’re a lot smarter)

And with all that near-instantaneous repository of the sum total of all human knowledge, enter Final Jeopardy.

Topic:  US Cities

Answer:  Its largest airport was named for a World War II hero; its second largest, for a World War II battle.

Que music …

“Watson?” Alex asks, “you responded with … ‘What is Toronto?‘ ”  “No, I’m sorry. That’s incorrect.  How much did you wager?”

In order for Watson to have been correct, Pearson would have had to have been a WW2 hero, and Billy Bishop or Downsview the name of a WW2 battle.  Alas, Pearson was a diplomat during WW2 stationed in London pimping military supplies and then in Ottawa and WDC.  He actually served during WW1 with no reports of attaining hero status.  Oh, and, well, we have to recognize, too, I guess, that Toronto is in Canada – hardly fitting the “US Cities” category.  Finally, there is no entry for “Toronto” in the list of 275 cities in the US that have populations equal to or greater than 100,000.  If you want to trudge through every state for something smaller, here’s your source.  Remember that the result has to have at least two airports to fit the Jeopardy! Answer, and I doubt places under 100,000 folks will fit that bill.  It seems Watson and the 80 Teraflops did the equivalent of farting in front of Betty Windsor (Queen Elizabeth II for you non-Irish).

What’s the point of this rather long diversion?  Technology used to form opinions needs to be of a nature reasonably relied upon in the field.  That takes time.

The data itself from which the opinion was drawn, however, need not be admissible.  Hunh?  Work with me here …

Let’s look at a case.  H&R Block wants to buy TaxACT.  H&R is primarily a face-to-face tax service, but they do have do-it-yourself software.  TaxACT is purely a DIY shop.  When you add Intuit to the mix, you have the three largest payers in the DIY tax game, with Intuit the biggest and TaxACT the smallest.  In fact, TaxACT is in the game purely through undercutting the other guys:  Fed returns are free, and you pay for state returns.  The US DOJ is trying to stop H&R from buying TaxACT.  Why?  Because they’re a horde of anti-capitalist socialists … but that’s another post someday.

TaxACT did a brilliant thing.  Since they knew the grounds for DOJ would rest on the acquisition being “anti-competitive,” they asked their customers to complete a survey.  It is the expert opinion based upon the results from that survey that the DOJ is trying to keep out of trial.  Wrap your head around that for a moment.  Do we want the DOJ to pontificate upon their opinion – or should we ask us – the people that use the product – whether we would see less competition?  Lordy, I do despise the government thinking they are smarter than us.

But that’s the nature of the law.  We need to look at the survey.  Was it misleading?  Were there sufficient responses upon which to base an opinion?  Consider this:  Q. If you needed to cook a meal but your electricity had been cut off for non-payment, what would you do?  A. 1. Eat the food uncooked.  2. Ask a neighbor to use his kitchen.  3. Break into the absent neighbor’s home and cook his food on his stove, thereby saving your food for when you sell those last few ounces of weed you have hidden under your bed and get your electricity turned back on.  If those were the only options, we’ve got a problem.  At the very least, we should add 4. Go to a restaurant.  5.  Not eat.  And there’s always the survey-ubiquitous 6. Other.

Surveys are surprisingly complex beasts to do them correctly.  And that is the heart of the DOJ’s complaint.  They attack the survey in order to exclude the expert testimony of opinions drawn from the results of the survey.

But we read FRE 703, didn’t we?  It seems DOJ did not.  The underlying data need not be admissible.  We only want evidence presented that is relevant, probative, material, and all that.  We don’t want to mislead or confuse the jury.  We don’t evidence that may be probative (will make something at issue more or less likely) but at the same time is too prejudicial.  Assume a survey about Inner City v. Rural Crime.  It finds that there is more crime per 100,000 of population in the Inner City population that in the Rural population.  It further finds that there is a greater percentage of minorities living in the Inner City than in the Rural area.  The conclusion is that minorities commit more crime than non-minorities … that is prejudicial.

The judge in this case agreed that it wasn’t the best survey and that the response rate was low (although DOJ’s claim that 50%+ response rate is typical is laughable).  But he then wisely found that the flaws in the survey would go to the weight he would give the testimony – and that the expert testimony would be allowed in.  A perfect survey, for example, would yield results that the judge would rely upon heavily in rendering his decision; an imperfect survey would be relied upon less.  Sure, at some point there’s a survey so pathetic that no mention of it or its putative findings would make it in, but that’s not the case here.  Also, this is a bench trial – no jury.  So the judge can be even more lenient in letting things in – he knows the law and won’t be swayed just because it’s an expert yapping on the stand.

So there we have an argument over admission of evidence at trial.  It’s not just bad Warrants or ugly-gotten Confessions.

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About Clyde

Clyde is the lead attorney in the firm. Licensed to practice in 1993, he's also taught Constitutional and Criminal Law for several years at a private university, primarily at the Master's level.

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