Expert Testimony, the Fifth Amendment, and Martha Stewart's Appeal
According to the Washington Post and other sources, Martha Stewart's appeal is likely to challenge the trial court's exclusion of expert evidence that her stock trade wasn't illegal. We didn't follow the trial closely and don't know the precise legal basis for the court's evidentiary ruling. We are gathering, however, that the ruling may have been based in part on the notion that the technical legality of the trade was not immediately relevant to the question at issue -- i.e., whether Ms. Stewart had a motive to obstruct investigations into it (a question that might depend more directly on what she personally believed, rightly or wrongly, about the trade's legality). Our conjecture seems to fit with reports that the judge was prepared to let Ms. Stewart testify about her own beliefs on the subject, if she took the stand.
Admittedly, Ms. Stewart might have believed the trade illegal notwithstanding its technical legality. Still, the issue of the trade's actual legality does seem circumstantially germane to the issue of Ms. Stewart's beliefs about its legality, if only because Ms. Stewart is a former stock broker. And expert testimony probably represents one of the few vehicles through which the defense could present its case on the issue without waiving Ms. Stewart's right not to testify. Sometimes exclusionary rulings are defensible partly because the party possesses ample alternative means for making her case. But does such a justification so readily suffice, when the alternatives would entail the waiver of constitutional protections?
However that may be, Ms. Stewart may face an uphill battle on appeal. The court's evidentiary ruling does not appear to have revolved around issues of testimonial reliability under Daubert and Kumho Tire. But if Daubert rulings in parallel situations afford any guide, the Second Circuit may be slow to find that the trial court abused its discretion. Based on our running tally, the Second Circuit has not reversed a ruling excluding testimony under Daubert in this decade. Over that same period, not once, so far as we can tell, has any federal appellate court upheld expert attorney testimony against challenge under Daubert.
Admittedly, Ms. Stewart might have believed the trade illegal notwithstanding its technical legality. Still, the issue of the trade's actual legality does seem circumstantially germane to the issue of Ms. Stewart's beliefs about its legality, if only because Ms. Stewart is a former stock broker. And expert testimony probably represents one of the few vehicles through which the defense could present its case on the issue without waiving Ms. Stewart's right not to testify. Sometimes exclusionary rulings are defensible partly because the party possesses ample alternative means for making her case. But does such a justification so readily suffice, when the alternatives would entail the waiver of constitutional protections?
However that may be, Ms. Stewart may face an uphill battle on appeal. The court's evidentiary ruling does not appear to have revolved around issues of testimonial reliability under Daubert and Kumho Tire. But if Daubert rulings in parallel situations afford any guide, the Second Circuit may be slow to find that the trial court abused its discretion. Based on our running tally, the Second Circuit has not reversed a ruling excluding testimony under Daubert in this decade. Over that same period, not once, so far as we can tell, has any federal appellate court upheld expert attorney testimony against challenge under Daubert.
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