FRE 611(b) Limited Confrontation Clause Challenge

In assault case, there was no Confrontation Clause violation in disallowing causation testimony of treating physician since the defendant was permitted to cross-examine the physician about matters within the scope of direct and about bias and motivation; treating physician was excluded based on the failure to provide pretrial notice of his expert testimony, in United States v. Urena, _ F.3d _ (9th Cir. Oct. 13, 2011) (No. 09-50285)

Occasional challenges are raised that the Confrontation Clause was violated by disallowing a line of cross-examination. The Ninth Circuit recently considered the interplay between the Confrontation Clause and FRE 611. The circuit also considered the exclusion of expert testimony based on the failure to provide pretrial notice.

In the case, federal prisoner and defendant Urena assaulted another federal prisoner after being called a “bitch” earlier in the day. During the surprise attack, the victim suffered lacerations from a shank. The defendant was prosecuted for assault with a dangerous weapon, and possession of contraband in prison (specifically the “shank”). Before trial, the treating physician issued a report which concluded “that the injury above [victim] Dennis’s right eye was likely caused by a punch or a fall to the ground, not a knife.” The trial court granted the government motion to exclude this opinion “so as long as the Government did not open the door to that line of questioning on direct.” The trial court noted that “questions about causation were outside the scope of” the treating physician’s “role as a percipient witness.” Urena, _ F.3d at _. After this cross-examination was disallowed, the defendant sought to call the treating physician. The trial court excluded this testimony since the defendant had failed to timely designate the treating physician as an expert. Following his conviction, the defendant appealed the exclusion of the cross-examination and medical witness.

The Ninth Circuit affirmed the trial court’s rulings. First, there was no Confrontation Clause violation since the defendant was permitted to cross-examine the treating physician about matters within the scope of direct examination (“the nature and extent of [victim] Dennis’s injuries”) and about “matters of bias and motivation.” Urena, _ F.3d at _ (citing United States v. Besimon, 172 F.3d 1121, 1128 (9th Cir. 1999) (“A limitation on cross-examination does not violate the Confrontation Clause unless it limits relevant testimony and prejudices the defendant, and denies the jury sufficient information to appraise the biases and motivations of the witness.”) (internal citations and quotations omitted)).

As a second challenge, the defendant claimed “the trial court erred 1) by ruling that testimony about causation of the injuries would be expert testimony and 2) by not allowing Urena to designate [treating physician] Dr. David as an expert.” Urena, _ F.3d at _. On appeal, the defendant argued that the causation testimony was admissible without expert testimony. The Ninth Circuit noted that no authority was cited for this position. In fact, other circuits had “held that a physician’s assessment of the cause of an injury is expert testimony.” Including:

  • Second Circuit: Wills v. Amerada Hess Corp., 379 F.3d 32, 46 (2d Cir. 2004) (holding that where “the nexus between the injury and the alleged cause would not be obvious to the lay juror,” expert testimony is required)
  • Eleventh Circuit: United States v. Henderson, 409 F.3d 1293, 1300 (11th Cir. 2005) (“Her diagnosis of the injury itself . . . would be permissible lay testimony, but her statement about the cause of the injury was, as she admitted, a ‘hypothesis.’ And the ability to answer hypothetical questions is the essential difference between expert and lay witnesses.”) (internal quotation and alteration omitted))

The Ninth Circuit was “persuaded” with this authority and concluded that the proffered causation testimony required an expert under FRE 702. After the trial had commended, the trial court had discretion to disallow the designation of a new expert. As the circuit noted, “a district court may normally refuse to permit expert testimony from an expert not previously designated before trial in the pretrial conference.” Urena, _ F.3d at _. On this record, there was no abuse of discretion. The evidentiary rulings were affirmed as were the convictions.

Federal Rules of Evidence