Error In Not Making On-The-Record Daubert Reliability Findings After Objection To Expert Testimony

In drug and firearm trial, admission of detective’s expert testimony on gang behavior was erroneous because the trial court failed, after defendant objected to the evidence, to make specific findings on the record reflecting that it had performed its gatekeeper duty on expert testimony, including whether the proffered expert evidence rested on a reliable foundation and was relevant; the error was harmless in light of other evidence properly admitted about the defendant’s gang membership, in United States v. Roach, 582 F.3d 1192 (10th Cir. Sept. 21, 2009) (No. 08-3029)

A recent case by the Tenth Circuit emphasized the importance of a proper record to admit expert testimony. While a full Daubert hearing may not always be required, the trial judge nonetheless has an obligation in fulfilling its gatekeeper role to make specific Daubert findings on the record that can be reviewed by the appellate court.

In the case, defendant Roach “was a long-time member of the Northside Crips, a Wichita, Kansas, street gang” and was convicted of possession of the firearm, ammunition, and drug offenses after a good faith search of his girlfriend’s residence that relied on stale evidence. The defendant filed a motion in limine “seeking to prevent the government from presenting a WPD detective, Jason Miller, as an expert witness on gang activity and asking the court to rule on Miller's expert credentials under Daubert. In response, the government filed Miller's resume with the court. The court held a hearing on this and other motions and Roach again raised the Daubert issue, but the court denied his motion in limine without ruling on Miller's expert qualifications or reliability. The case went to trial in November 2007.” Roach, 582 F.3d at 1199.

At trial, expert witness Miller “testified that he had fourteen years' experience with the WPD, including eight years as a detective. Both before and after he became a detective, he was assigned to the Gang Intelligence Unit and specifically to the Targeted Offenders Program. He identified a number of gang-related training programs and conferences that he had attended as an officer, some for multiple years, and explained that he instructed classes related to gangs both at conferences and for the WPD.” Roach, 582 F.3d at 1199.

The record in the case indicated that the trial judge neglected to address the Daubert issues raised by the defendant. Instead, the court simply told the jury after a general instruction on expert witness testimony that: “I've determined that the jury may consider him [Miller] as an expert and give it such consideration as they deem appropriate.” As a result, the court allowed the witness “to give expert testimony about ‘the types of tools of the trade that people who are affiliated with gangs, specifically the Neighborhood Crips, carry or maintain,’ explaining that firearms are such a tool and are used to protect drugs and to battle with other gangs. He also testified that gang members commonly use certain slang present in the letters from Roach to Hughes, including replacing the letters ‘ck’ with the letters ‘cc.’ Finally, he told the jury that drug dealers often use colored lights to guide their customers, and that a blue bulb in particular indicates an association with the Crips, who identify with the color blue.” Roach, 582 F.3d at 1199. After his jury conviction, one issue involved his contention that the trial court had “failed in its duty under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), to make factual findings regarding the reliability of the detective's expert testimony.” Roach, 582 F.3d at 1197.

The Tenth Circuit noted that the trial court erred in admitting the expert testimony without proper consideration of the Daubert factors reflected in the record. While the circuit acknowledged that the trial judge could satisfy its gatekeeper responsibility by ruling on an objection to the testimony at trial, the record needed to reflect that the court had received “sufficient evidence to perform ‘the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand.’” Roach, 582 F.3d at 1206 (citing Goebel v. Denver & Rio Grande W. R.R. Co., 215 F.3d 1083, 1087-88 (10th Cir. 2000) (Although “the gatekeeper inquiry under Rule 702 is ultimately a flexible determination, ... a district court, when faced with a party's objection, must adequately demonstrate by specific findings on the record that it has performed its duty as gatekeeper.”)).

The circuit noted that police expert evidence regarding gang activity was commonly admitted under FRE 702 in the Tenth Circuit and in other circuits, citing:

  • United States v. Quintana, 70 F.3d 1167, 1170-71 (10th Cir. 1995) (upholding admission of police detective's testimony explaining terminology used by drug traffickers)
  • United States v. Sturmoski, 971 F.2d 452, 459 (10th Cir. 1992) (upholding admission of agent's testimony about the value of methamphetamine labs and the use of firearms to protect the investment therein)
  • United States v. McDonald,, 933 F.2d 1519, 1520-23 (10th Cir. 1991) (upholding admission of police detective's testimony about pricing, packaging, use of firearms, and other features of street cocaine sales)
  • United States v. Hankey,, 203 F.3d 1160, 1167-71 (9th Cir. 2000) (upholding admission of police expert testimony on gang colors, signs, and activities)
  • United States v. Locascio, 6 F.3d 924, 936-37 (2d Cir. 1993) (upholding admission of FBI Agent's testimony on “the structure of organized crime families”)

The error in Roach’s case was that “before admitting expert testimony, the district court is required to make specific, on-the-record findings that the testimony is reliable under Daubert .” Roach, 582 F.3d at 1207 (citing Goebel v. Denver & Rio Grande W. R.R. Co., 215 F.3d 1083, 1088 (10th Cir. 2000) (“[W]e specifically hold that a district court, when faced with a party's objection, must adequately demonstrate by specific findings on the record that it has performed its duty as gatekeeper”); United States v. Cui Qin Zhang, 458 F.3d 1126, 1129 (10th Cir. 2006) (Record reflected that, “while certainly not the most expansive imaginable, nevertheless [statements indicated]… the district court's performance of its gatekeeping function. The district court noted Detective Sun's age and the fact that he had grown up speaking Mandarin when it admitted him as an expert to testify about the meaning of a statement. We conclude that it was not error for Detective Sun to be qualified as an expert.”))

In explaining the inadequacy of the trial court’s determination in Roach, the circuit noted:

“[T]he district court chose not to conduct a Daubert hearing before trial, deferring the issue to be decided after objection. When defense counsel made such an objection, the court responded by explaining Rule 702 to the jury, then stating that ‘I've determined that the jury may consider [Miller] as an expert and give [his expert testimony] such consideration as they deem appropriate.’ These statements simply do not include any factual findings indicating the basis of the court's determination that Miller met the requirements of Rule 702. A conclusory statement that the court has made such a determination will not suffice. ‘Without specific findings or discussion on the record, it is impossible on appeal to determine whether the district court carefully and meticulously reviewed the proffered scientific evidence or simply made an off-the-cuff decision to admit the expert testimony.’ Accordingly, the court erroneously admitted Officer Miller's testimony without the required findings of reliability.”
Roach, 582 F.3d at 1207 (quoting Goebel v. Denver & Rio Grande W. R.R. Co., 215 F.3d 1083, 1088 (10th Cir. 2000))

Even though admission of the expert gang testimony was erroneous, the circuit concluded that it was harmless because the trial court admitted other evidence of the defendant’s gang membership, such as testimony from his parents and percipient testimony by other officers.

Previously, the Federal Evidence Blog has noted other cases observing the discretion of the trial court on whether to hold a Daubert hearing, see other posts on Full Daubert Hearing Is Not Always Required To Admit Expert Testimony (Part I); (Part II); (Part III); and (Part IV). The Roach case stands as another caution that despite the considerable discretion the trial court has in terms of how to conduct its gatekeeper duties under Daubert and FRE 702, the exercise of this discretion must be supported in the record.


Subscribe Now To The Federal Evidence Review

** Less Than $25 Per Month ** Limited Time Offer **

subscribe today button

Federal Rules of Evidence