Challenge to Expert's Qualification Fails To Preserve Objection To Reliability

In trial of a deported alien for reentering the country, defendant's opposition to admission of expert fingerprint analysis evidence failed to preserve on appeal the issue of the expert witness's reliability; the defendant limited his evidence and argument exclusively to the issue of the expert's qualification, failing to address the reliability of the proffered expert witness or the reliability of the expert's field of expertise, in United States v. Avitia-Guillen, __ F.3d __ (10th Cir. June 6, 2012) (No. 11–1524.)

When no Daubert hearing is held in a criminal case, but the district judge receives only evidence regarding a proffered witness's qualifications to testify as an expert, has the court erred if it fails to make explicit and detailed findings on the witness's qualifications or to even address the reliability of the expert's methodology or field under FRE 702? The short answer, at least in the Tenth Circuit, appears to be that while explicit and detailed Daubert findings may be desirable, they are not indispensable. Rather, when a trial judge's conclusions are supported by the evidence adduced in the record and when the opposition to the witness fails to raise the issue of the reliability of the witness as an expert, there is no requirement for detailed findings to support the court's decision to admit or exclude the witness. The Tenth Circuit recently examined this issue in the context of fingerprint analysis. The circuit concluded that there had been an "adequate[] demonstrat[ion]" in the case that the "that the district court ... performed its duty as gatekeeper" under Daubert.

In the case, defendant Avitia-Guillen was found in the United States after having been deported over a decade earlier. As part of the proof regarding the charged crime, the prosecutor offered testimony by a fingerprint examiner. The examiner, who worked for the state government crime lab, opined that the defendant's fingerprints demonstrated the identity of the defendant with a person previously deported from the country over a decade before. The defendant was convicted and part of his appeal concerned the admission of the fingerprint evidence. Avitia-Guillen, __ F.3d at __.

The Tenth Circuit was not responsive to the defendant's argument concerning the expert opinion evidence. Essentially, the defendant's strategy at trail had been to challenge the witness's qualifications as an expert, rather than the witness's methodology or the underlying reliability of fingerprint analysis. The trial court denied the defendant's challenge, explaining that it considered the fingerprint examiner witness (Bacchi) to be “qualified to testify and opine as a fingerprint examiner” based on “her training, education, background, and experience.” The circuit acknowledged that the trial court finding "were very brief," but then the circuit did not require "extensive factual findings." Avitia-Guillen, __ F.3d at __.

The trial judge's conclusion that the witness was qualified was sufficiently supported. The judge clearly identified that he was applying FRE 702 to make the determination to admit the witness. The admittedly conclusory statement admitting the testimony provided the general direction of the judge's conclusions. The statement the judge made in that regard was, according to the circuit, was that the witness was “qualified to testify and opine as a fingerprint examiner” and that the judge based his judgment on “her training, education, background, and experience.” Avitia-Guillen, __ F.3d at __.

The circuit seemed to suggest that nothing more was required in terms of the witness's qualifications as an expert:

[O]ur cases do not require district courts to extensively explain their reliability determinations, especially with regard to an expert's qualifications. Defendant would have us order a new trial simply so the district court could elaborate for a few more sentences on its determination that [fingerprint examiner] Bacchi qualified as an expert witness. Such an elaboration would in no way further our appellate review. The record is already sufficient for us to determine the basis for the court's ruling, and consequently provides a “sufficient basis for appellate review.”
Avitia-Guillen, __ F.3d at __ (quoting Goebel v. Denver & Rio Grande W. R.R. Co., 215 F.3d 1083, 1088 (10th Cir. 2000)). As summarized by the circuit, this was the practical result and there was nothing to "require a remand simply because the district judge was not given to verbosity, and we decline to adopt such a rule today." Avitia-Guillen, __ F.3d at __.

The other problem with the defendant's Daubert challenge was that he had not preserved the issue for appeal. The circuit noted that the defendant argued that the Tenth Circuit should also examine the record with regard to the expert's methodology or the soundness of the field of expertise. The failure was that the defendant failed to make any objection as to the witness's

methodology at trial. “When no objection is raised, district courts are not required to make ‘explicit on-the-record rulings,’ “ because “we assume that the district court consistently and continually performed a trustworthiness analysis sub silentio of all evidence introduced at trial.” Where a party objects only to an expert's qualifications, he does not preserve an objection to the expert's methodology. Thus, we review de novo only whether the district court “actually performed its gatekeeper role” with respect to Bacchi's qualifications. We review the court's factual findings with respect to Bacchi's methodology only for plain error. Any other approach would fault the district court for failing to make findings on an issue Defendant did not raise.]
Avitia-Guillen, __ F.3d at __ (citing Goebel v. Denver & Rio Grande W. R.R. Co., 215 F.3d 1083, 1088 n.2 (10th Cir. 2000); See United States v. Vargas, 471 F.3d 255, 263 (1st Cir. 2006) (where defendant objected to an expert's qualifications, but not his methods or the sufficiency of his data, an appellate court reviews these issues only for plain error); United States v. Diaz, 300 F.3d 66, 75–76 (1st Cir. 2002) (generic reference to Daubert while challenging expert's qualifications does not raise an objection to the expert's methodology); United States v. Roach, 582 F.3d 1192, 1206 (10th Cir. 2009).

The circuit in Avitia-Guillen seemed to focus much of its analysis on the gatekeeping requirements on FRE 702. But it was not unaware of decisions from the First Circuit that performed a similar analysis of the admission of fingerprint evidence. Of course, a more elegant, although less explanatory means for reaching the same result, would have been to assume that there had been an error and assess the error for whether it was harmless under the circumstances. As a practical matter, however, it is difficult to see the difference between this result and a result based simply on harmless error.

Image: Short ridge analysis of fingerprint sample.


Federal Rules of Evidence