Lacking Expertise On The Probative Issues

  • strict warning: Declaration of flag_handler_relationship_content::ui_name() should be compatible with views_handler::ui_name($short = false) in /home/evidentl/public_html/sites/all/modules/flag/includes/flag_handler_relationships.inc on line 171.
  • strict warning: Declaration of flag_handler_relationship_counts::ui_name() should be compatible with views_handler::ui_name($short = false) in /home/evidentl/public_html/sites/all/modules/flag/includes/flag_handler_relationships.inc on line 226.

A proponent of expert testimony has the burden to tie the expert's qualifications to the proffered testimony; in a fraud case, the First Circuit excluded the proposed defense expert on “Soviet adoption practices and cultural differences between the former Soviet Union and the United States,” explaining that the witness was not qualified to opine on that; while the trial court had also excluded the witness, it had different reasons for the exclusion, such as a lack of relevance, in United States v. Tetioukhine, __ F.3d __ (1st Cir. July 26, 2013) (No. 12-1049)

Under FRE 702, a witness with sufficient "knowledge, skill, experience, training, or education may testify in the form of an opinion" where "the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue," and other requirements under the rule are met. The First Circuit recently considered a case in which the proffered expert had an extensive background, but lacked sufficient qualifications on the areas in which he was to provide an opinion.

Trial Proceedings

In the case, defendant Tetioukhine was prosecuted for his fraudulent use of the identity of another individual -- the father of a citizen whom the defendant claimed had adopted him. The defendant claimed that his action was in conformity with a social custom in the former Soviet Union - to honor the friend who adopted him, he had taken on the name of the friend's father to honor him. This action was innocent and legitimately motivated, having no fraudulent purpose.

To support his argument that adopting the friend's father's name was a Soviet social custom, the defendant offered the expert testimony of Sergei Khrushchev, who was "the son of former Soviet Premier Nikita Khrushchev" and "a senior fellow at the Watson Institute for International Studies at Brown University in Providence, Rhode Island." He would opine on “Soviet adoption practices and cultural differences between the former Soviet Union and the United States." The trial court had excluded the expert testimony as irrelevant, reasoning that the expert "would speak to child adoption practices, whereas [defendant] Tetioukhine was adopted as an adult." Tetioukhine, _ F.3d at _. After the jury convicted the defendant, he appealed to the First Circuit.

Circuit Analysis

The circuit affirmed the defendant's conviction and the exclusion of the defense expert, although for different reasons than the trial court. Tetioukhine, _ F.3d at _. The circuit noted that the proponent of the expert testimony held the burden to establish its admissibility, Tetioukhine, _ F.3d at _ (citing, inter alia, United States v. Downing, 753 F.2d 1224, 1242 (3d Cir. 1991) (holding that "a defendant who seeks the admission of expert testimony must make an on-the-record detailed proffer to the court, including an explanation of precisely how the expert's testimony is relevant to the [issues in dispute]"), and that the defendant had failed to do so. Rather than focus on the trial judge's exclusion of the expert opinion testimony as not relevant, the circuit advanced a completely "independent" reason based on the following factors from Daubert:

  • Claimed Competence: The proposed expert "[f]ocus[ed] heavily on world affairs and national security issues" and the circuit found little indication of study of Soviet social customs and practices
  • Publication Focus:: The proposed expert tended to focus his writing on "world affairs and national security issues," rather than on Soviet social customs and practices
  • Basis for Opinion: "Purely anecdotal” & "the simple result of having lived in the former Soviet Union"
  • Alternates: The defendant testified at trial on the alleged Soviet social custom regarding adoption and explained the best he could why he felt it applied when it was undisputed that his friend had not adopted him; the proffered expert could provide little additional insight into this matter based on the qualifications the expert claimed in Russian family law and adoption customs

As the circuit explained:

...[t]here was little, if anything, in [proposed expert witness] Khrushchev's background that would qualify him to offer opinions about adoption practices at all. See Fed. R. Evid. 702(a) (requiring expert to have “scientific, technical, or other specialized knowledge”). His stated areas of competence and his publication record focus heavily on world affairs and national security issues, rather than family law and adoption customs in the former Soviet Union. Indeed, his avowed knowledge in the latter area was “purely anecdotal,” the simple result of having lived in the former Soviet Union. Tetioukhine himself was equally capable of testifying to these matters, as he did. There was no basis for according Khrushchev the imprimatur of an “expert” in an area where he lacked specialized knowledge.
Tetioukhine, __ F.3d at __ (citing United States v. Giambro, 544 F.3d 26, 33 (1st Cir. 2008)).

Summary

The Tetioukhine case highlights the obligations of the proponent of expert testimony. A proffered expert may appear to have significant credentials. But that expertise has to particularly cover the areas on which he or she is to opine at trial. While Khrushchev's would appear qualified to offer expert opinions about world peace and Russian foreign relations, there was nothing to suggest how this expertise would carry over to Soviet adoption practices and customs. Consequently, there "was no basis for according [him] the imprimatur of an 'expert' in an area where he lacked specialized knowledge." Tetioukhine, __ F.3d at __. The circuit added that "the relevance of expert testimony regarding cultural matters is context-dependent and must be assessed on a case-by-case basis," leaving open the possibility to admit such expert testimony upon a proper showing. For a case case involving a similar principle, the First Circuit cited United States v. Sebaggala, 256 F.3d 59, 66 (1st Cir. 2001) where the court excluded testimony about “linguistic and cultural traits of the Baganda tribe” because its “connection” to “the issues in the case seems tenuous at best."

______________________________

Photo Description: First Circuit Court of Appeals, John Joseph Moakley United States Courthouse, Boston, Massachusetts. Learn more about the courthouse.

______________________________

Subscribe Now To The Federal Evidence Review

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

subscribe today button

Federal Rules of Evidence
PDF