Experts and Notice: The When, The What, and The Why
If you intend to present an expert witness in a federal criminal case, you may be required to disclose the identity of the expert, his or her qualifications, and a summary of the expert’s anticipated testimony in advance of trial. In some cases such disclosure may be so detrimental to the defense that it may be better not to offer the expert’s testimony at all. In other instances, the expert’s testimony may be so important to the defense, that the possibility of exclusion of this evidence requires the strictest adherence to the rules mandating disclosure. This article is intended to help educate counsel on the requirements of the various rules and suggest those considerations that should affect how counsel can best respond.
In contrast to what is required by the federal rules of civil procedure (see Fed. R. Civ. P. 26(a)(2)), neither the government nor the defense in a criminal case is required to disclose the identity of an expert witness or the substance of the witness’s testimony prior to trial. Such disclosures arise if, pursuant to Fed. R. Crim. P. 16(a)(1)(G), the defense requests that the government disclose a written summary of the testimony the government intends to introduce pursuant to Fed. R. Evid. 702, 703, or 705. If such a request is made, the reciprocal discovery provision of Fed. R. Crim. P. 16(b)(1)(C) requires that the defense provide the same information in response.
Failure to provide reciprocal discovery can result in the exclusion of the expert. ( See United States v. Nichols, 169 F.3d 1255, 1267-70 (10th Cir. 1999); United States v. Dorsey, 45 F.3d 809, 816 (4th Cir. 1995) cited in Nancy Hollander and Barbara E. Bergman, Everytrial Criminal Defense Resource Book, §60:2.) While appellate courts pay lip service to the “least severe sanction necessary” doctrine, courts invariably uphold exclusion of a defense expert as within the discretion of the court and find any error in failing to exclude a government expert to be harmless error. ( United States v. Batts, 171 Fed.Appx. 977, 982 (4th Cir. 2006).) Not surprisingly, the sanction of exclusion is far more likely to be directed at a defense expert than a government expert. ( See, e.g., United States v. Suthar, ___F.3d___, 2007 WL 731401 (4th Cir. 007)(upholding trial court’s decision not to exclude government expert, claiming that exclusion of testimony is almost never imposed).)
In addition, there is one situation where the government can force the defendant to disclose the identity and substance of an expert witness’s testimony: a defendant who intends to offer a defense of insanity is required to give notice of that defense pursuant to Fed. R. Crim. P. 12.2(b). In the event such notice is given, the defense must, upon request of the government, provide the government a written summary of the testimony that the defendant intends to offer under Rules 702, 703, and 705. If such a request is made by the government and the defense complies, the defense can also seek to have the government disclose what evidence it intends to offer in rebuttal. (Fed. R. Crim. P. (a)(1)(G).)
Putting aside for a moment the timing of disclosure, the first question counsel should consider is whether to request disclosure at all. What if your expert has identified some significant flaw in the government’s theory of liability? If you feel comfortable that you know what the government’s expert is going to say anyway, why telegraph what would otherwise be surprise testimony? Unfortunately, you may only have one or two cases in your entire career where you will have such explosive testimony. In the vast majority of cases you will be far more concerned with finding a way to neutralize the government’s expert. The best way of identifying those flaws is by invoking Rule 16 and demanding that the government identify its witness and the substance of the witness’s testimony.
Does this mean that you may have to forgo putting on your own witness? Possibly, but that is not necessarily a bad thing. The most persuasive testimony that can be presented on the defendant’s behalf comes not from a defense witness (whose credibility and motives are always in doubt) but from a government witness who has been turned. If in fact there is a flaw in the expert’s testimony, you should be able to elicit that flaw on cross. Your ability to trap the witness is a function of careful preparation and assistance from your own expert.
While the purpose of Rule 16(a)(1)(G) is “to minimize surprise that often results from unexpected expert testimony, reduce the need for continuances, and to provide the opponent with a fair opportunity to test the merit of the expert’s testimony through focused cross-examination, ” Fed. R. Crim. P. 16 Advisory Committee Notes to 1993 amendment, the rule does not apply to rebuttal testimony. Thus the government can present an expert on rebuttal without providing any notice to the defense even if this prejudices the defendant’s ability to effectively examine the witness. ( United States v. Frazier, 387 F.3d 1244, 1269 (11th Cir. 2004); United States v. Silva, 141 Fed.Appx. 521, 523 (9th Cir.2005) but see U.S. v. Tin Yat Chin, 476 F.3d 144, 146 (2d Cir. 2007)(calling failure to provide notice sharp practice but finding no due process violation in facts of the case).)
How detailed must the notice be? That is unclear. One court has held that at a minimum, the disclosure should include:
(1) Any reports and analyses that the expert has prepared, concerning the facts of the case;
(2) Copies or a specification of all documents, writings and other information reviewed by the expert or on which the expert’s opinions are based, in sufficient detail so that the opinion rendered can be tested against that upon which it is based;
(3) The expert’s work papers; and
(4) The expert’s curriculum vitae or professional resume. ( United States v. Reliant Energy Services, Inc. ___F.Supp. 2d.____ , 2007 WL 640839 (N.D.Cal. 2007).)
The bottom line is that defense counsel is faced with a major strategic decision. Is it more important to destroy the government’s expert, or is it more important to prevent the government from learning the substance of your expert’s testimony? In making that determination, you will need to consider some of the following factors:
(1) the likelihood that the government will offer expert testimony;
(2) the likelihood that you will learn something you don’t know about the government’s case through any disclosures the government will have to make if you invoke Rule 16;
(3) how important is the expert to the government’s case;
(4) the likelihood that disclosure of the government’s expert and the substance of his testimony will help you to neutralize the expert’s testimony.
(5) how likely is it that you will put on your expert;
(6) how significant is the expert’s testimony to your case; and
(7) will disclosure of a summary of the expert’s opinion and reasoning
(a) make the exclusion of the expert more likely under a Daubert challenge?
(b) reveal a critical aspect of the defense that you wish to keep concealed?
There is no deadline in the rules for the defense to request disclosure from the government; however, courts usually set a set a date for a response after a request is made. As discussed above, the failure of a party to comply with the court’s scheduling order may or may not lead to exclusion of expert testimony, depending upon whether the expert is offered by the defense or the government.
If you decide not to request disclosure of the government’s expert in advance of trial, have a Daubert motion ready to file when the government calls its witness. Because Fed.R.Evid. 702 independently requires the court to determine the relevance and reliability of all expert testimony, you may get much of the discovery you need, and—if you’re lucky— the court grants an evidentiary hearing, a crack at examining the witness before the witness testifies before the jury. But be prepared to go through the same process when you call your expert in the defense case.
Finally, don’t hesitate to educate your client on these issues. Some clients believe that, in order to win at trial, the defense must affirmatively present testimony to counter the government’s proof. Such clients will try to pressure counsel to offer expert testimony when the safer and more effective means of demonstrating the client’s innocence is through effective crossexamination. Some times you have to take risks.
Sometimes it’s better not to. Having to make those judgments is why you get the big bucks.
Jon May practices law with his wife Carol Cohen in the law firm of May & Cohen P.A. Mr. May is currently co-chair of the ABA CJS Defense Function Committee and is a member of the NACDL White Collar Crime Committee.
Originally published in the Criminal Justice Newsletter, Vol. 15, No. 3, Spring 2007. Copyright © 2007 by the American Bar Association. Reprinted with permission.
© Copyright 2008, American Bar Association.