U.S. v. Scholl

• Decision Date: 27 February 1997
• Docket Number: No. CR 95-576 TUC ROS.,CR 95-576 TUC ROS.
• Citation: 959 F.Supp. 1189
• Parties: UNITED STATES of America, Plaintiff, v. William L. SCHOLL, Defendant.
• Court: U.S. District Court — District of Arizona

959 F.Supp. 1189

UNITED STATES of America, Plaintiff, v. William L. SCHOLL, Defendant.

No. CR 95-576 TUC ROS.

United States District Court, D. Arizona.

February 27, 1997.

Robert J. Hirsh, Hirsh Davis Walker & Piccarreta, P.C., Stephen G. Ralls, Ralls & Bruner, P.C., Tucson, AZ, for William L. Scholl.

Thomas Lawrence Fink, U.S. Atty., Tucson, AZ, for U.S.

OPINION

SILVER, District Judge.

On September 20, 1996, this Court issued an Order granting the Government's Motion to Preclude the Testimony of Doctor Robert Hunter except under limited circumstances. On September 24, 1996, the Court briefly set forth findings to guide the parties during the trial and promised a written Opinion would follow. This is that Opinion.

I. FACTUAL OVERVIEW

The Government filed a Motion styled "Government's Motion in Limine to Preclude Expert Testimony—Compulsive Gambling Disorder." The Defendant filed a Response opposing the motion and a Supplement Memorandum on Daubert. The Government filed a Reply. A hearing was held on September 4, 1996, and Dr. Robert Hunter testified. The parties argued the Motion, and the Court took it under advisement.

II. FINDINGS OF FACT AND CONCLUSIONS OF LAW

A. General Legal Principles

The Supreme Court of the United States in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), set forth the guideposts for determining the admissibility of expert testimony. Of central significance was the Court's recognition both of the Federal Rules' "liberal thrust" with regard to the admissibility of expert testimony and the trial judge's "gate keeping" role vis-a-vis expert proof on scientific issues. Id. at 588, 597, 113 S.Ct. at 2794, 2798-99. The Supreme Court stressed that in the usual case the evaluation of expert testimony must be left to the jury but emphasized the trial court's important responsibility pursuant to Rule 104(a) of the Federal Rules of Evidence to screen scientific evidence in order to keep unreliable evidence out of the courtroom. Id. at 592-93, 113 S.Ct. at 2796-97.

After Daubert was decided, a debate arose over whether the new test would be more liberal (i.e., allow more expert testimony) or would be more conservative (i.e., allow less expert testimony).

This question cannot be answered simply. The court cited the long accepted premise of the Federal Rules of Evidence to liberalize admissibility standards [citation omitted] but it adopted the most conservative test contained in the rules for preliminary assessments of fact.... Rule 104(a) mandates that judges independently determine the validity of the science underlying an expert's testimony.

David L. Faigman, The Evidentiary Status of Social Science Under Daubert: Is it "Scientific," "Technical," or "Other" Knowledge?, 1 Psychol. Pub. Pol'y & L. 960, 969 (Dec. 1995). The Ninth Circuit, however, has made clear that under Daubert judges must ask, "[w]here are the data?" An inability to produce it will result in exclusion of expert testimony. Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311 (9th Cir. 1995). Hence, in a short time Daubert has become synonymous with validity and is generally referred to as the "validity" test. Faigman, supra, at 964.

Now, a district court's expert witness function is a two-step inquiry embodied in Federal Rule of Evidence 702, as follows:

1. To determine whether the expert has minimal educational experiential qualifications in a field that is relevant to a subject which will assist the trier of fact.

2. If the expert passes this threshold test the court should further compare the expert's area of expertise with the particular opinion the expert seeks to offer. Here the expert should be permitted to testify only if the expert's particular expertise however acquired enables the expert to give an opinion that is capable of assisting the trier of fact.

See Thomas v. Newton Int'l Enterprises, 42 F.3d 1266, 1269 (9th Cir.1994); Carroll v. Otis Elevator, 896 F.2d 210, 214-15 (7th Cir. 1990). The Supreme Court offered four nonexclusive factors which should be considered by trial courts in evaluating the merit of scientific evidence: falsifiability, error rate, peer review and publication and general acceptance. These criteria are more easily applied to the rigid sciences, but they have also been applied to the soft sciences such as psychology and psychiatry. One author states:

By replacing Frye's general acceptance test with the validity standard of Daubert and Rule 702, the Supreme Court took a major step towards integrating the fields of law and psychology. Under Daubert, trial court judges no longer defer to the judgments of outsiders but, instead, bear the responsibility themselves for evaluating the scientific merit of the research underlying proffered expert testimony. For psychologists who in the past testified more on the basis of clinical consensus than rigorous research, Daubert is likely to constitute a substantial road block.

An alternative view might assert that psychology avoids the strict censure of Daubert because if falls outside of science and that it should be admitted under the more relaxed standards presumably associated with the other categories of expert testimony contemplated by Rule 702: "technical, or other specialized knowledge." I argue that psychology cannot avoid Daubert in this fashion, because 702 does not establish categories subject to alternative analysis. Instead, Rule 702 contemplates a fluid analysis, with a preference for scientific knowledge when it is or should be available.

Faigman, supra, at 979.

At the time of writing this Opinion there have been only a few cases involving psychiatric testimony since Daubert, and all of them have applied Daubert with varying results. In United States v. Hall, 93 F.3d 1337 (7th Cir.1996), the Seventh Circuit reversed the trial court's exclusion of the defendant's expert testimony regarding false confessions and the defendant's susceptibility to coercion. The psychiatrist would have testified that due to a personality disorder, which made him susceptible to suggestion and pathologically eager to please, he confessed to a crime he did not commit. The Seventh Circuit reversed because it was not confident that the district court had applied the Daubert framework. The court stated:

In proper circumstances, experts in psychiatry and psychology can meet both these hurdles: real science, and testimony based thereon.

Id. at 1343.

In United States v. Shay, 57 F.3d 126 (1st Cir.1995), the First Circuit reversed a district court's decision to exclude expert testimony on Munchausen's Disease, a mental disorder known formally as pseudologia fantastica which is characterized as an extreme form of pathological lying. The court found there was no reason to exclude expert testimony that bears on truthfulness where the defendant claimed that he suffered from a mental disorder that caused him to make grandiose statements similar to those the government was trying to use against him. The court, however, remanded to determine whether the expert's testimony "fit" the facts of the case and whether the prejudicial effect outweighed the probative value pursuant to Rule 403. Id. at 134. Finally, in Shahzade v. Gregory, 923 F.Supp. 286 (D.Mass.1996), the court applied the Daubert analysis and held that testimony concerning repressed memory evidence was admissible. In upholding the admissibility of this testimony the court emphasized that the expert discussed "several detailed studies," Shahzade, 923 F.Supp. at 288, and that the majority of the clinical psychiatrists recognized the theory of repressed memories and did not find the theory itself controversial. Indeed, the expert had testified that this was not "a new craze among American psychiatrists ... this is a very old issue in psychiatry." Id. (emphasis in original) Finally, the court found significant the fact that disassociated amnesia was included and discussed in the DSMIV because this indicated that it had been recognized by the psychiatric community. Id. at 289-90.

Significantly, however, all the cases applying Daubert to psychiatry recognize that even if the expert testimony is admissible pursuant to Rule 702, it may be disallowed pursuant to Federal Rules of Evidence 402 and 403 if the evidence is irrelevant, misleading, wasteful, confusing, or its prejudicial effect substantially outweighs its probative value. As the Supreme Court recently observed, "[e]xpert evidence can be both powerful and quite misleading because of the difficulty in evaluating it. Because of this risk, the judge in weighing possible prejudice against probative force under Rule 403 of the present rules exercises more control over experts than over lay witnesses." Daubert, 509 U.S. at 595, 113 S.Ct. at 2798 (quoting Jack B. Weinstein, Rule 702 of the Federal Rules of Evidence is sound. It should not be amended, 138 F.R.D. 631, 632 (1991)). Also, in Hall the Seventh Circuit emphasized that conclusory statements without explanation by the expert can contribute to the jury's misunderstanding of the subject and are subject to exclusion. The court stated:

Even though experts are entitled to give their opinion on an ultimate issue in the case, see Rule 704(a), this does not mean that the opinion may be given divorced from the scientific, medical, or other expert basis that qualified the witness in the first place.¹

Hall, 93 F.3d at 1344.

Compulsive Gambling Disorder

Dr. Robert Hunter testified that he studied under Dr. Robert Custer who apparently first identified compulsive gambling as a mental disorder and not just antisocial behavior. Hunter has been studying the disease for many years and is considered a national expert. He testified that the disease has been identified in the DSM-III, DSM-III-R and DSM-IV, demonstrating that it has been officially recognized by those publications for sixteen years. Dr. Hunter has treated over a thousand in-patients and...