11th Circuit Issues En Banc Decision in U.S. v. Frazier

Last year, in United States v. Frazier, 322 F.3d 1262 (11th Cir. 2003), a divided three-judge panel of the Eleventh Circuit reversed the trial court's exclusion of testimony, by a defendant's forensic witness in a rape and kidnapping trial, that "[w]ith the amount of sexual activity described in the search warrant affidavit, it would be expected that some transfer of either hairs or seminal fluid would occur in this case." Sitting en banc, the Eleventh Circuit has now overruled the panel decision and reinstated the defendant's conviction. See United States v. Frazier, No. 01-14680 (11th Cir. Oct. 15, 2004).

On one level, the Eleventh Circuit's en banc decision can be read simply as a strong statement about the deference to be paid to lower court Daubert rulings on appellate review. Certainly the opinion begins by announcing its intent to "reaffirm the basic principle that an appellate court must afford the district court's gatekeeping determinations 'the deference that is the hallmark of abuse-of-discretion review'" (quoting General Elec. Co. v. Joiner, 522 U.S. 136, 143 (1997)).

On another level, however, two aspects of the decision's reasoning, if consistently applied, could spell trouble for law enforcement witnesses who offer experience-based testimony on such subjects as the modus operandi of drug traffickers. First, the opinion emphatically cautions that experience, by itself, cannot obviate the need for a reliability inquiry:

Of course, the unremarkable observation that an expert may be qualified by experience does not mean that experience, standing alone, is a sufficient foundation rendering reliable any conceivable opinion the expert may express. As we observed in [Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333 (11th Cir. 2003)], "while an expert's overwhelming qualifications may bear on the reliability of his proffered testimony, they are by no means a guarantor of reliability. . . . [O]ur caselaw plainly establishes that one may be considered an expert but still offer unreliable testimony." 326 F.3d at 1341-42. Quite simply, under Rule 702, the reliability criterion remains a discrete, independent, and important requirement for admissibility.

Indeed, the Committee Note to the 2000 Amendments of Rule 702 expressly says that, "[i]f the witness is relying solely or primarily on experience, then the witness must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts. The trial court's gatekeeping function requires more than simply 'taking the expert's word for it.'" Fed. R. Evid. 702 advisory committee's note (2000 amends.) (emphasis added); see also Daubert v. Merrell Dow Pharmaceuticals, Inc. (on remand), 43 F.3d 1311, 1316 (9th Cir. 1995) (observing that the gatekeeping role requires a district court to make a reliability inquiry, and that "the expert's bald assurance of validity is not enough"). If admissibility could be established merely by the ipse dixit of an admittedly qualified expert, the reliability prong would be, for all practical purposes, subsumed by the qualification prong.

Second, the en banc opinion's affirmance of the trial court's ruling rests heavily on the proposition that expert testimony about what would be "expected" carries an inherently probabilistic connotation that should depend on empirical backing:

While the expert's statement that the recovery of hair or seminal fluid "would be expected" expresses an intrinsically probabilistic or quantitative idea, the probability it expresses is unclear, imprecise and ill-defined. And the basis for that probabilistic opinion is left unstated. Without knowing how frequently hair or seminal fluid is transferred during sexual conduct in similar cases -- whether derived from reliable studies or based on some quantification derived from his own experience -- it would be very difficult indeed for the district court (or for that matter the jury) to make even an informed assessment, let alone to verify that the recovery of hair or fluid evidence in this case "would be expected." Nor could the district court tell from [the expert's] testimony whether his opinions had been subjected to peer review or, even, the percentage of cases in which his opinion had been erroneous.

Similar criticisms would seem applicable to testimony from law enforcement officers, so commonplace in criminal trials, about whether a given quantity of narcotics is associated with distribution as opposed to personal use, or about the modus operandi of drug dealers more generally. Imagine, for example, that a narcotics agent testifies that drug traffickers commonly carry guns. This is tantamount to testimony that the recovery of a weapon from the defendant makes it likelier that the defendant is a narcotics trafficker. Should it be insisted that such testimony be supported by studies showing that drug dealers carry weapons with a given frequency X, such that X is greater than the frequency Y with which non-drug-dealing citizens carry weapons? Of course, the passage quoted above also leaves the expert free to support his opinion with "quantification derived from his own experience." But do law enforcement officers really have the requisite experiential grounding to quantify how frequently persons other than criminal suspects possess weapons?

Our guess is that the Eleventh Circuit's en banc decision in Frazier is not in fact intended to signal new demands of rigor for law enforcement officers testifying as prosecution experts. But certainly the opinion gives defense counsel some raw material with which to work.