Full Daubert Hearing Is Not Always Required To Admit Expert Testimony (Part VII) - "Inferred" Compliance

In a fraud prosecution, although the trial judge did not explicitly find that a government witness was qualified under FRE 702 to provide expert opinion testimony regarding the charged crimes on which the witness had given lay testimony, on appeal the witness's qualifications as an expert could be "inferred," based on the proponent establishing the witness's qualifications, the opponent's failure to voir dire the witness regarding his qualifications or testimony, and the defendant's failure to renew its objection to admission of the witness's expert testimony, in United States v. Nixon, __ F.3d __ (6th Cir. Sept. 11, 2012) (No. 09–5979)

The Federal Evidence Blog has posted a series of essays concerning the "Daubert Hearing" for screening expert testimony under FRE 702. See Full Daubert Hearing Is Not Always Required To Admit Expert Testimony (Part I)) (Part II),(Part III), (Part IV),(Part V), and (Part VI). Over a year has passed since our last entry concerning this matter. The Sixth Circuit recently considered a case which takes another look at when a trial court's screening of expert testimony is sufficient. This case refers to a set of circumstances in which the circuit felt that the satisfaction of the screening requirements could be "inferred" from the record.

In the case, the defendant Nixon had been a "bookkeeper for a small law [law] firm in Kentucky." In this position the defendant used her access to the firm's accounts to pay some of her own personal expenses without authorization. Upon discovery of the misuse, she was prosecuted for various fraud and identity offenses and was convicted by the jury. One part of the defendant's appeal involved her contention that the trial judge had erred by allowing the a witness to testify as both a lay and as an expert witness, failing to conduct any formal screening of that witness's qualifications under Daubert.

Because the defendant had failed to properly preserve her objection to the witness's expert testimony, she battled two difficulties in her appeal of the admission of the witness's expert testimony. First, not having properly preserved the objection, the circuit would review the matter using a plain error standard. Second, the failure to properly preserve an objection to the witness's expert testimony was considered by the circuit as something more than silence -- it was also used by the circuit as relevant to whether the witness could properly testify.

The‭ witness whose testimony was admitted as an expert had been hired by the victim as a forensic accountant. The witness had made the initial effort to investigate the defendant's actions for the victim so that the U.S. Attorney could be notified of the crime. According to this witness, the defendant had “converted to her own personal use the firm’s lawful money, employing four different methods of embezzlement.” There was no dispute on appeal that his testimony was a mixture of personal observations and expert assessment. The witness "clearly gave expert opinion testimony under Federal Rule of Evidence 702 on multiple occasions,” noted the circuit. This was not a particular problem unless it seemed that it would be unclear when testimony was offered in a lay capacity and when it was offered in an expert capacity. Nixon, __ F.3d at __ (citing United States v. Lopez-Medina 461 F.3d 724, 745 (6th Cir. 2006)).

One problem with the witness's testimony, according to the defendant, was that the trial judge failed to make any "formal ruling" on the witness's qualifications to give expert evidence. This failure was not necessarily fatal, cautioned the circuit. Failing to reach "specific findings" about the reliability of a witness's testimony “does not itself require that we vacate the jury’s verdict.” Nixon, __ F.3d at __ (citing Mike’s Train House, Inc. v. Lionel, L.L.C., 472 F.3d 398, 407 (6th Cir. 2006). Rather, the circuit seemed to suggest that it had recognized situations when, despite a lack of formal Daubert findings, such findings could be "inferred."

The circuit reiterated a conclusion it reached in a recent unreported case, that when a witness's "qualifications are obvious, we have found that there is no need to formally qualify him as an expert.” Nixon, __ F.3d at __ (citing United States v. Cobb, 397 F. App’x 128, 139 (6th Cir. 2010). It seemed that more informal findings could be sufficient when "the proponent of the witness ... pose[d] qualifying and foundational questions and proceed to elicit opinion testimony. If the opponent objects, the court should rule on the objection, allowing the objector to pose voir dire questions to the witness’s qualifications if necessary and requested.” Nixon, __ F.3d at __ (citing United States v. Johnson, 488 F.3d 690, 697 (6th Cir. 2007).

In defendant Nixon's case, this is precisely what happened:

The prosecutor initially had [witness] Rufus discuss his background, including his Ph.D. in business administration with a concentration in accounting, the four years that he had worked for the Internal Revenue Service, and the 24 years that he had run his own accounting firm.... [and] ... taught forensic accounting and performed “a lot of fraud research” during his directorship at the University of Charleston’s Forensic Institute. After Rufus detailed his professional background, the prosecutor asked Rufus if he could identify behavior that was typical of employees who embezzled from their employers. At that point counsel for Nixon raised an objection to Rufus’s opinion testimony."
Nixon, __ F.3d at __.

The circuit found in the trial record that upon objection, the court suggested to the prosecutor that "perhaps you need to go ahead and offer him [as an expert] and then if he [defense counsel] wants to voir dire his qualifications, he can." The prosecutor agreed and had the witness explain his qualifications to offer an opinion. The defendant did not renew any objection to the [challenged expert] witness's testimony, letting it go undisturbed. The circuit suggested that this record was sufficient basis for "infer[ring ]" that the expert qualifications had been shown. The three matters cited by the circuit as allowing this inference was (1) the proponent of the evidence made a proffer of evidence that would support its admission; (2) the opponent of the evidence "did not object to any of [the expert's] opinion testimony" following the presentation of the evidence that would support admission, and (3) defense council did not even voir dire the witness when it could have done so. Even though the district court never explicitly ruled that the witness had the appropriate qualifications to offer his opinion "on matters concerning fraud and embezzlement, the proper procedure for qualifying [expert] Rufus was used and, based on Rufus’s comprehensive experience in the field and the lack of further objection from Nixon’s attorney, such a ruling may be inferred. Nixon, __ F.3d at __.

The Nixon case illustrates that in many circuits a formal Daubert hearing was not always required before expert testimony can be admitted. The challenge is to consider whether the trial court received sufficient information that would make the evidence admissible. Where the qualifications of the expert have been presented and the opponent of the evidence fails to properly preserve an objection to the evidence and even fails to avail itself with the opportunity to voir dire the witness, it appears that the circuit is justified in concluding that the requirements for screening under the Daubert standard may be "inferred."


Federal Rules of Evidence