Daubert Expert Determination Can Be Made During Trial

Ninth Circuit notes that the trial court did not abuse its discretion in denying request for a pretrial Daubert hearing, in United States v. Alatorre, 222 F.3d 1098 (9th Cir. 2000)

A party may request that the trial court hold a pretrial Daubert hearing to perform its “gatekeeping” role to “ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993) Can the Daubert requirement be fulfilled during the trial? Some cases confirm it can, including the following one from the Ninth Circuit.

In the case, the Ninth Circuit addressed the issue “whether the district court must hold a separate hearing before trial, as opposed to making an evidentiary determination during trial, in order to fulfill the ‘gatekeeping’ function….” Alatorre, 222 F.3d at 1099. The defendant came to the attention of inspectors while entering the border in a car with his family. After a dog alerted on his car, more than 68 pounds of marijuana was found near the rear tire well. The defendant was charged with importing and possessing marijuana with intent to distribute. Before trial, the court ruled that the government could introduce expert testimony concerning “the value of the marijuana seized and on whether it was a distributable quantity but that testimony about the organization and structure of drug enterprises would be admitted only if the defense raised the issue of why no fingerprints were taken from the tire compartment or its contents.” Id. at 1099.

The defendant’s request for a pretrial Daubert hearing was denied, but the trial court “indicated that Alatorre could conduct voir dire of the proffered expert at trial, in the presence of the jury, and stated that if the expert's testimony raised any concerns, then further questioning would be permitted outside the jury's presence.” Id. at 1099 (footnote omitted). The defense counsel conducted voir dire of the expert on the value of the marijuana. His objection to the testimony was overruled. The expert testified concerning the wholesale and retail value of marijuana. After the defense suggested the government failed to lift fingerprints from the marijuana packages, the expert provided limited testimony concerning the structure and organization of marijuana smuggling operations. After the jury convicted the defendant, he appealed the admission of the expert testimony.

The Ninth Circuit affirmed the admission of the expert testimony and the denial of the pretrial Daubert hearing. The circuit explained:

“Although we believe that it may be appropriate, at least in some cases, to conduct a pretrial or other hearing outside the presence of the jury to assess preliminary questions of relevance and reliability relating to experts, we hold that a separate hearing is not required. Further, under the circumstances presented here, the district court did not abuse its discretion in denying Alatorre's request.”
Id. at 1099. In reviewing the Supreme Court expert cases, the circuit noted that the trial court was afforded flexibility in determining the manner to decide expert admissibility issues. The circuit cautioned that requests for pretrial hearings should be duly considered:
“Trial courts should be mindful of the difficulties posed when counsel must explore an expert's qualifications and the basis for the expert's opinion in the presence of the jury and, depending on the circumstances of the case, should give due consideration to requests that questioning occur unconstrained by that presence. But, in the end, such a determination is a judgment call best left to the discretion of the trial court.”
Id. at 1105.

As the Alattorre opinion notes, there may be tradeoffs to be weighed before waiting until trial to admit expert testimony. Nonetheless, in appropriate cases, the trial court has the discretion to do so.

Federal Rules of Evidence