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Psychologists & Psychiatrists

Admissibility Rate: .371    (23/62)

United States v. Stokes, 388 F.3d 21 (1st Cir. 2004), vacated on other grounds, 125 S. Ct. 1678 (2005).  Defendant is charged with possession of firearm by felon.  To discredit testimony from two eyewitness police officers, defendant offers Dr. Alexander Daniel Yarmey, who proposes to testify to effects of fear and other psychological factors on reliability of eyewitness testimony.  Trial court excludes testimony and jury convicts.  Exclusion affirmed.  First Circuit has not established any per se rule on admissibility of expert testimony on eyewitness testimony but takes case-by-case approach.  In this case, defendant did not discharge its burden of showing that testimony would be helpful to trier of fact.

United States v. Boykoff, No. 02-1435 (2d Cir. May 21, 2003) (unpublished).  On trial for tax fraud, defendant offers psychiatrist to testify that defendant is bipolar and suffers from ADHD, in support of defendant's contention that errors in tax returns were due to carelessness and inattention, not intent to defraud.  District court excludes testimony for want of adequate link between diagnoses and issue of specific intent, and also as more prejudicial than probative.  Jury convicts.  Affirmed.  Appellate panel need not reach issue of testimony's admissibility, because any error was harmless.  Various witnesses testified that defendant committed numerous intentionally fraudulent acts over extended period of time.  Expert conceded he never reviewed tax returns and could not link any entries on returns to defendant's diagnoses.  In any event, no reasonable jury could have believed that defendant suffered from mental conditions leading him to commit careless errors that invariably worked to his benefit.

Franklin v. Consolidated Edison Co. of New York, No. 01-7559 (2d Cir. Apr. 9, 2002) (unpublished).  Stroke victim sues employer for retaliatory discharge under Americans with Disabilities Act.  District court awards judgment as matter of law to employer after excluding testimony from employee's two experts: physician, Dr. Paul Rosch, who would opine that work-related stress caused stroke; and treating psychologist, Dr. Bessie Duncan, who would opine re employee's emotional distress.  Exclusion affirmed.  As to Dr. Rosch, district court reasonably found that: (1) he is not expert on strokes; (2) no peer-reviewed articles establish link he posits between stress and strokes; (3) he did not interview employee or learn about her medical history; (4) his theory is not generally accepted in medical community; (5) his opinion was developed solely for litigation; and (6) even if stress caused stroke, there is no scientific basis for conclusion that stress arising from discriminatory treatment caused stroke, because Dr. Rosch could not segregate effects of multiple sources of stress in employee's life.  As to Dr. Duncan, district court legitimately found that her diagnosis was inextricably bound up with employee's stroke, and that Dr. Duncan had no reliable information on which to base a pre-stroke evaluation.

Altamuro v. County of Nassau, No. 01-7275 (2d Cir. Mar. 29, 2002) (unpublished).  Involuntarily committed mental patient brings section 1983 action, alleging wrongful confinement and forcible medication, and offers testimony from psychoanalyst, Dr. Norman Pearl, who opines that plaintiff was not mentally ill, though Dr. Pearl admits that diagnosis of mental illness would fall within range of reasonableness.  At close of evidence, district court grants defendants' Daubert motion and enters judgment for defendants as matter of law.  Affirmed.  Plaintiff does not challenge Daubert ruling on appeal, but argues that timing of expert's disqualification prevented plaintiff from curing evidentiary deficiency.  However, plaintiff had ample notice that Dr. Pearl's testimony was challenged, and did not seek to reopen case once his testimony was excluded.

Milanese v. Rust-Oleum Corp., 244 F.3d 104 (2d Cir. 2001).  Rust-preventing primer ignites while man is applying it to his Ferrari, and man is severely burned.  In his suit against primer's manufacturer, victim responds to motion for summary judgment with affidavit from Dr. Robert J. Cunitz, certified human factors psychologist, who opines that warning label on primer was noncompliant with Federal Hazardous Substances Act (FHSA).  District court excludes testimony in affidavit because expert failed to submit evidence of his qualifications to opine on compliance with FHSA.  Exclusion affirmed.  District court properly excluded testimony, and victim does not seriously challenge that decision on appeal. 

United States v. Young, No. 99-1718 (2d Cir. May 25, 2000) (unpublished).  Retired police officer contracts to purchase 18,000 dozen t-shirts, pays $2100 upfront for shipping.  Frustrated when t-shirts are not delivered, officer uses law enforcement contacts to collect information re vendor and enlists assistance of vendor's girlfriend in scheme to teach vendor lesson.  When vendor and girlfriend visit New York, officer "arrests" vendor, takes vendor to vacant warehouse, duct tapes vendor to forklift, and abandons him there.  On trial for kidnapping, officer offers psychiatrist to testify that officer's conduct was not willful, in part because officer was diabetic and suffering from post-drinking binge disorientation when he committed the acts in question.  Officer also offers psychologist to testify that officer possesses "police personality" and was therefore likely motivated not by desire to avenge commercial wrong but rather by wish to protect young son of vendor's girlfriend from abuse by vendor.  Exclusion affirmed.  Testimony was properly excluded because: (a) experts' proposed testimony diverged from defendant's discovery disclosures; (b) defendant himself testified to disorientation, and it was not error to exclude testimony that merely attached clinical labels to his condition; (c) expert testimony on "willfulness" of defendant's conduct would be impermissible expert testimony on mens rea and therefore subject to exclusion under Fed. R. Evid. 704(b); (d) any potential probative value was outweighed by potential confusion of jury.  Defendant complains that court should have analyzed his expert testimony under Daubert, but district court did exactly that in concluding that experts' testimony failed to satisfy Daubert's relevance requirement.

United States v. Mazzeo, No. 99-1223 (2d Cir. Jan. 21, 2000) (unpublished).  Defendant is convicted of misappropriation of postal funds after district court excludes defendant's psychiatric witness on false confessions.  Exclusion affirmed.  District court did not abuse discretion in excluding testimony.  Even if study of false confessions in general has scientific validity, witness's methodology as applied to defendant was unreliable.  Expert merely interviewed defendant by phone for twenty minutes and reviewed text of confession and other background documents.  There exist tests designed to measure likelihood of false confessions, but expert did not administer them.  Pressed by district court to explain exactly what basis he had for opining that defendant's confession was false, expert fell back on generalities and his wide experience.

United States v. Brownlee, 454 F.3d 131 (3d Cir. 2006).  Defendant in carjacking case alleges mistaken identity and seeks to offer testimony from Dr. Jonathan Wolf Schooler, psychology professor and expert on human perception, on ten topics relating to eyewitness identification: (1) how show-up identification procedures affect witness accuracy; (2) comparison of show-up versus other identification procedures; (3) weapons focus; (4) absence of correlation between witness confidence and accuracy; (5) effects of exposure to multiple witnesses; (6) effects of hair coverings on eyewitness recognition ability; (7) confidence malleability (effects of post-identification information on witness's confidence); (8) effects of time delay on identification; (9) post-event suggestion; and (10) cross-racial identification.  After Daubert hearing, district court permits expert's testimony on topics (3), (5), (6), and (10), but bars it on remaining subjects.  Jury convicts.  Exclusion reversed.  Trial court excluded testimony on theory that it was unhelpful to trier of fact and could promote confusion.  But this testimony was highly relevant; trial fundamentally revolved around identification issues.  Juries do not arrive equipped with scientific knowledge of reasons why eyewitness identification can be unreliable.  Reversed and remanded for new trial.

Mickens-Thomas v. Martinez, No. 04-3843 (3d Cir. July 7, 2005) (unpublished).  Parolee brings habeas petition challenging constitutionality of state's terms and conditions for his parole.  Over parolee's objection, state offers testimony from psychologist Dr. Veronique Valliere, who opines generally on risks of recidivism but disclaims knowledge of parolee's particular case.  District judge finds in state's favor.  Affirmed.  Testimony's admissibility need not be reached, because district court placed substantially no reliance on it.

Walker v. Gordon, No. 01-4106 (3d Cir. Sept. 17, 2002) (unpublished).  Prisoner brings section 1983 action alleging excessive force in arrest.  Defense offers psychiatric expert, "Dr. Toborowsky," to testify that prisoner was likely grossly psychotic at time of arrest, based on medical reports, information from police, and psychiatric examination.  Prisoner files pretrial motion in limine, arguing that underlying facts on which psychiatrist based his opinion are false.  District court denies motion without holding Daubert hearing, because motion goes to factual foundation of opinion, not expert's methodology.  Psychiatrist then testifies at trial without objection.  Admissibility affirmed.  Prisoner did not waive objection by failure to object at trial, because nothing indicates that district court's pretrial ruling was tentative or provisional.  Given definitive pretrial ruling, further objections would have been in the nature of exceptions, which are not required.  But district court did not abuse discretion in admitting testimony.  Experts may base their opinions on one particular version of disputed facts, and jury may be told to disregard opinion if it rejects that version.

United States v. Mathis, 264 F.3d 321 (3d Cir. 2001), cert. denied, 535 U.S. 908 (2002).  Fearing jury confusion or usurpation of jury's role, trial court excludes opinion of bank robber's expert on eyewitness testimony.  Conviction affirmed because exclusion was harmless error.  Qualifications of expert, reliability of methods, "fit" of testimony were not in serious dispute.  In any event, testimony was reliable and should have been admitted despite concerns about "overwhelming" jury.  But exclusion was harmless error.

Keller v. Larkins, 251 F.3d 408 (3d Cir.), cert. denied, 534 U.S. 973 (2001).   Man shoots and kills cheating wife.  During state murder trial, prosecution psychiatrist testifies that defendant may have suffered from "sadistic personality disorder."  Upon conviction, man brings habeas claim alleging ineffective assistance, asserting that his counsel should have challenged psychiatrist's testimony under DaubertDenial of habeas affirmed.  On appeal from verdict in federal trial, federal appellate court would review admissibility of testimony under Daubert, but in habeas action arising from state conviction, and absent any claim that admission of evidence violated constitutional rights, federal appellate court must presume, in light of intermediate state appellate decision holding testimony admissible, that testimony was properly admitted, so that objection would have been futile.

Elcock v. Kmart Corp., 233 F.3d 734 (3d Cir. 2000).  On encountering waxy buildup on Kmart floor, woman slips and falls.  At trial of her personal injury claims, she offers psychologist cum vocational rehabilitationist to testify re scope and duration of her disability, and economist to testify re damages.  District court reluctantly qualifies psychologist as vocational rehabilitation expert and declines to entertain Daubert challenge to psychologist's testimony because no scientific issues are involved (Kumho Tire not yet having been decided).  Economist is also permitted to testify over defendants' Daubert objections.  Admissibility reversed.  Psychologist did have some vocational rehabilitation experience and kept up with literature, but his qualifications are at outer limit of admissibility.  District court would have discretion to qualify him as vocational rehabilitation expert or not.  But in light of Kumho Tire, district court should have held Daubert hearing re psychologist's testimony, and trial record suggests that serious questions concerning its reliability would arise.  Economist should not have been permitted to offer testimony based on unfounded assumptions re plaintiff's earning power.  Remanded for Daubert hearings and new trial.

United States v. Belyea, No. 04-4415 (4th Cir. Dec. 28, 2005) (unpublished).  Defendant is among partygoers who consume methamphetamine at hostess's parents' house in Virginia.  Over one year later, hostess's father discovers that three handguns are missing from hope chest in master bedroom.  When father reports their absence to police, two of his handguns turn out to have been recovered in search of car belonging to suspected drug dealer in Washington, D.C.  ATF agent interviews defendant and tells him two lies: (1) that one gun was used in D.C. murder; and (2) that murder weapon bore just one fingerprint (defendant's).  Agent also tells defendant that he can be detained as material witness in D.C. jail where skinny white boys like defendant won't last long.  Defendant confesses to theft and is charged with possession of firearm by unlawful user of controlled substance.  At trial, however, defendant recants and seeks to offer expert testimony from Dr. Solomon Fulero on various factors correlated with false confessions.  District court excludes testimony, without conducting Daubert analysis, because "jurors know people lie."  Jury convicts and defendant appeals.  Exclusion reversed.  Broad generalization on which district court's decision was based (that jurors "know people lie") is inconsistent with nuanced and particularized determination mandated under Daubert.  Jurors do not necessarily know that persons lie to their own detriment by confessing to crimes they did not commit.  Although district court did not permit defendant's attempted proffer, defendant's motion in limine indicated that witness would testify on how anxiety and various interrogation techniques can induce false confessions.  Error cannot be deemed harmless because no other evidence exists that defendant ever possessed weapon.  District court should conduct proper Daubert analysis on remand and award new trial if it concludes that expert's testimony is admissible.

United States v. Fitzgerald, No. 02-4978 (4th Cir. Nov. 17, 2003) (unpublished).  Junior ROTC instructor is charged with making sexual advances to minor JROTC students.  Prosecution offers testimony from FBI clinical forensic psychologist, Dr. Anthony J. Pinizzotto, that child molesters commonly often begin with innocuous behavior to gain child's trust and then proceed to borderline behavior to test whether child is receptive.  District court excludes testimony as unreliable and because it would not assist trier of fact.  Government perfects interlocutory appeal.  Exclusion affirmedExpert alleges his assertions have been tested but fails to specify how.  Some of expert's work has been published, but record does not establish that it was peer-reviewed.  Not does record establish any rate of error.  Similarly, although expert claims his theories are established by studies following standard social scientific methodologies, he does not identify those methodologies.  Nor does he offer any detailed defense of his claim that his theories are generally accepted.  In any event, unlike arguably analogous testimony concerning modus operandi of drug dealers, this testimony does not involve matters beyond ken of average juror, and so it would not assist trier of fact.  No abuse of discretion. 

United States v. Bellamy, No. 00-4662 (4th Cir. Jan. 22, 2002) (unpublished).  Eyewitness to bank robbery picks defendant out of photo array.  Defendant's expert on eyewitness identification, psychologist Dr. Larry Long, seeks to testify that identification was impermissibly suggestive and unreliable because eyewitness was presented with only six photos, five of which were of persons not resembling defendant.  District court excludes expert's testimony because twelve photos were actually presented, and also because expert's testimony would not assist jury.  Exclusion affirmed.  Testimony would not have been reliable because it rested on false premise that eyewitness had reviewed only six photos.  In any event, Fourth Circuit has previously held that except in "narrow circumstances," expert testimony on eyewitness identification, "almost by definition, can be of no assistance to a jury."  Issues concerning reliability of eyewitness identifications fall within general knowledge of jurors and can be brought out by skillful cross-examination.  Defendant argues that this case is exceptional because two years passed between underlying events and in-court identification, but that argument fails because only fifteen days passed between underlying events and presentation of photo array to eyewitness.

United States v. Bridges, No. 99-4669 (4th Cir. July 10, 2000) (unpublished).  Tax preparer charged with aiding in preparation of false returns offers psychologist to testify that tax preparer has learning disability and low self-esteem and therefore cannot cope with complex tax code.  Exclusion affirmed.  District court did not abuse discretion in concluding that testimony was not relevant to any fact in issue and that any probative value was outweighed by potential to confuse jury.

United States v. Barnette, 211 F.3d 803 (4th Cir. 2000), vacated on other grounds, 126 S. Ct. 92 (2005).  In rebuttal during penalty phase of capital trial, prosecutors offer testimony from psychologist, based in part on Psychopathy Checklist Revised (PCR), that defendant is psychopath and likely to commit violent acts in future.  Defendant, who is black, objects that PCR has not been standardized as to black population or post-middle age population.  District court admits testimony and subsequently bars defendant's risk assessment expert from testifying on surrebuttal that defendant is not psychopath and will probably not commit future violent acts.  Admissibility affirmed.  Assuming that Daubert applies during penalty phase of criminal proceedings, decision to admit psychologist's PCR testimony was not clear error of judgment, but district court should have permitted defendant's surrebuttal witness to testify, because issue of psychopathy had not arisen until government's rebuttal.  Latter error was not harmless.

United States v. Dixon, 413 F.3d 520 (5th Cir. 2005), cert. granted, 126 S. Ct. 1139 (2006).  In support of her duress defense, criminal defendant offers testimony on battered women's syndrome from Dr. Toby Myers, domestic violence expert.  Trial court excludes testimony as irrelevant and jury convicts.  Exclusion affirmed.  Witness's testimony went to defendant's subjective state of mind, whereas test for duress defense is defined objectively, by reference to whether person of reasonable firmness in defendant's position would have been able to resist engaging in criminal conduct. 

Shields v. Dretke, No. 04-70008 (5th Cir. Feb. 17, 2005) (unpublished), cert. denied, 126 S. Ct. 28 (2005).  Habeas petitioner alleges ineffective assistance in underlying state murder trial, arguing that counsel should have challenged reliability of testimony by prosecution psychiatrist, Dr. Edward Gripon, re petitioner's future dangerousness.  District court denies relief.  Affirmed.  It is troubling that psychiatrist did not interview petitioner, but no clearly established law prevents psychiatrist from forming opinion based on case records and psychiatric records.  Petitioner has not established that he was prejudiced, where counsel chose to rely on rebuttal witness to refute expert's testimony rather than interpose futile Daubert objection.

Martinez v. Dretke, No. 03-51067 (5th Cir. May 24, 2004) (unpublished), cert. denied, 543 U.S. 1068 (2005).  Habeas petitioner alleges ineffective assistance, claiming that defense counsel should have mounted more vigorous challenge to prosecution expert's use of Hare Psychopathy Checklist to predict future dangerousness during sentencing phase of underlying capital trial.  District court denies habeas relief.  Affirmed.  Trial court devoted half-day to defense counsel's Daubert challenge.  Although challenge did not succeed, defense counsel were so well prepared that trial judge complimented them on their efforts.

Vogler v. Blackmore, 352 F.3d 150 (5th Cir. 2003).  Woman and child are killed in vehicular accident.  Family members bring wrongful death suit.  Thanatologist and "grief expert" Dr. Phyllis Silverman testifies for plaintiffs.  Jury awards damages.  Admissibility affirmed.  Defendants have raised no proper challenge to witness's credentials, or to reliability of her testimony.  Defendants do question whether average juror would require expert testimony to understand family members' grief on loss of loved one, but testimony was relevant, and district court did not abuse its discretion in admitting testimony after weighing its probative value against its potential prejudicial effect.  Moreover, any error would be harmless, because other evidence supported jury's award.  

Tyler v. Union Oil Co. of Cal., 304 F.3d 379 (5th Cir. 2002).  In age discrimination suit, employees offer statistical testimony from Dr. Blake Frank, industrial/organizational psychologist, who opines that Unocal employees over age fifty were more likely to be subject to adverse employment decisions.  Jury returns verdict for plaintiffs.  Admissibility affirmed.  Defendants' five specific methodological quarrels go to weight, not admissibility.  In particular, expert could permissibly create his own database from data supplied by Unocal, and did attempt to address factors other than age that might affect employment decisions.

Halvorsen v. Plato Learning, Inc., No. 05-5325 (6th Cir. Feb. 15, 2006) (unpublished).  Plaintiff in employment suit offers psychological autopsy from "Dr. Walker."  District court excludes testimony and awards summary judgment.  Exclusion affirmed.  Expert relied entirely on anecdotal evidence, did not review medical records, and admitted she had never performed any psychological autopsy before.

Deal v. Hamilton County Bd. of Educ., 392 F.3d 840 (6th Cir. 2004), cert. denied, 126 S. Ct. 422 (2005).  In IDEA case brought by family of autistic student, trial court admits testimony from school district's expert on IDEA compliance, Dr. David Rostetter, and its expert psychologist [?], Dr. B.J. Freeman.  Court enters judgment for school district and plaintiffs appeal.  Admissibility affirmed.  Plaintiffs offer only factual arguments, not legal ones.  Meanwhile, Daubert is designed to "protect juries" and is largely irrelevant in bench trials.  In any event, trial court's evidentiary rulings did not constitute abuse of discretion.  Dr. Rostetter is nationally recognized expert in IDEA compliance, has published extensively in that field, helped draft original IDEA regulations, and has served as court-approved and court-appointed IDEA expert in numerous other cases.  Fact that Dr. Freeman was not involved in case until after ALJ's decision was entered is not determinative on admissibility of her testimony, so long as it was helpful in determining validity of original IEP.

United States v. Redditt, No. 01-6401 (6th Cir. May 21, 2003) (unpublished), cert. denied, 124 S. Ct. 944 (2003).  Carjacking defendant demands independent psychiatric evaluation, saying his low IQ rendered him incapable of understanding consequences of his actions at time of crime and also prevents him from assisting in his defense.   District court grants his request, but evaluation team finds defendant competent to assist in defense, able to understand right and wrong, and capable of appreciating consequences of his actions.  Prosecution proceeds, and jury convicts.  District court denies post-trial motion for new psychiatric evaluation, and says, at sentencing, that defendant's trial testimony "reveals that the conclusions of the [psychiatric] evaluation team were clearly correct. An individual not competent to stand trial could not have given the detailed and coherent testimony offered by the defendant."  Affirmed.  Defendant argues that psychiatric evaluation was never examined for reliability under Daubert, but district court did not rely on evaluation.  Rather, district court relied on its own observations of defendant to reach same conclusion.

Pittman v. ANR Freight Sys., No. 00-2501 (6th Cir. Aug. 29, 2002) (unpublished).  Man is injured when truck rear-ends his auto.  In personal injury action against trucking company, defendant objects to testimony on injury causation from victim's treating physicians, and to testimony re psychological testing from Ph.D. in human relations.  Trial court overrules objections and jury returns verdict for victim.  Admissibility affirmed.  Defendants complain that physicians merely took patient history and did not perform independent tests or "differential diagnosis" eliminating other potential causes of victim's injuries.  But differential diagnosis is merely one permissible methodology for ascriptions of medical causation.  Physicians not only took patient history but also performed physical exams and consulted MRI results.  Likewise, psychological tests taken by plaintiff are generally used in field and have been subjected to review in published peer-reviewed journals.

United States v. LeBlanc, No. 01-1517 (6th Cir. Aug. 28, 2002) (unpublished).  Man charged with sexual assault of minor step-daughter offers testimony from psychologist Dr. Terence Campbell re unreliability of evidence gleaned from child interviews.  District court excludes testimony and jury convicts.  Exclusion affirmed.  Some reasons given by district court for excluding testimony were questionable.  In particular, exclusion is not warranted on theory that expert's theories were based on "soft science" or lacked general acceptance.  But no record evidence suggested that interview of this child relied on suspect techniques discussed by expert, and so evidence was properly excluded as irrelevant and unhelpful to trier of fact.  Even if testimony were admissible, its exclusion would be harmless error, because other evidence overwhelmingly suggested guilt.   

United States v. Langan, 263 F.3d 613 (6th Cir. 2001).  Did eyewitness pick bank robber out of photo array because she remembered his face from robbery, or because she remembered him from later television appearance?  Defendant's expert on eyewitness identification is barred from testifying that identification could be mistaken as result of "unconscious transference."  Exclusion affirmed.  Sixth Circuit may be more hospitable than some appellate courts to expert evidence on eyewitness testimony, and has no per se rule against such testimony.  But district court did not abuse discretion in excluding this expert.  Witness's own article noted that "unconscious transference" theory enjoyed only "meager" empirical support and had "number of limitations" (including "limited external validity" and "limited generalizability").  Moreover, witness said nothing to rebut prosecution's attacks on theory.  District court therefore had basis to exclude testimony as unreliable.  Testimony was also potentially confusing and prejudicial.  Pitfalls of eyewitness testimony are known to most jurors, and cross-examination can bring them out.

Gonzales v. Nat'l Bd. of Med. Exam'rs, 225 F.3d 620 (6th Cir. 2000), cert. denied, 532 U.S. 1038 (2001).  Medical student claiming to suffer from learning disability seeks preliminary injunction under Americans with Disabilities Act to require National Board of Medical Examiners to afford him accommodation (extra time) in taking licensure exam.  Board offers testimony from psychologist that based on her review of plaintiff's performance on various cognitive tests, plaintiff suffers from no disability rising to level of "impairment."  District court denies preliminary injunction.  Affirmed.  Dissenting judge on panel questions whether Board's expert would satisfy gatekeeping requirements of Daubert and Kumho Tire, because Board's psychologist did not personally examine plaintiff, and also because her method for assessing learning disabilities involved theoretical model that had not been tested for purposes of diagnosis or treatment.  But psychologist did not offer diagnosis.  She assessed whether plaintiff had any impairment consistent with learning disability.  This she was qualified to do.

United States v. Smithers, 212 F.3d 306 (6th Cir. 2000).  In bank robbery trial, defendant offers opinion of expert on eyewitness testimony re general factors influencing eyewitness identifications.  Expert would also opine that witnesses would have noticed and recalled four-inch scar on defendant's neck.  Without conducting Daubert hearing, district court excludes testimony, stating that: (a) it will be interesting experiment to see how jury treats case in testimony's absence; (b) defense counsel can always argue for new trial; (c) defense counsel has built strong record that exclusion is abuse of discretion.  Jury convicts and defendant appeals.  Exclusion reversed.  Trend in decisions is toward increased tolerance of expert testimony on eyewitness identification.  District court showed disturbing lack of regard for defendant's rights and should conduct Daubert hearing on remand.

United States v. Carter, 410 F.3d 942 (7th Cir. 2005).  District court denies criminal defendant's motion for appointment of defense expert on eyewitness identification, ruling that such testimony would not aid trier of fact and could mislead it.  Jury convicts and defendant appeals.  Affirmed.  General testimony on fallibility of eyewitness identification involves matters within ken of average juror, and relevant points were covered in cross-examination of eyewitness and in jury instructions.  No abuse of discretion.

United States v. Welch, 368 F.3d 970 (7th Cir. 2004), vacated on other grounds, 543 U.S. 1112 (2005).  In bank robbery trial, prosecution offers testimony from defendant's co-worker and from defendant's former wife identifying defendant as man in bank's surveillance tapes.  Defendant counters with testimony from Dr. Otto Maclin, psychologist, on fallibility of witness identifications.  Trial court excludes testimony as unhelpful to trier of fact and jury convicts.  Exclusion affirmed.   Dr. Maclin's qualifications are not in dispute, nor is reliability of his methods.  But trial court permissibly found testimony would not assist trier of fact.  Average juror could understand risk that misidentification could occur because two persons wore similar clothing, and could grasp principle that memories fade over time.  No abuse of discretion.

United States v. Ferron, 357 F.3d 722 (7th Cir. 2004).  Convicted of bank fraud, defendant offers testimony at sentencing phase from Dr. R. Bronson Levin, clinical and forensic psychologist, who opines that defendant suffers from generalized anxiety disorder, dependent personality disorder, dysthymia, drug and alcohol abuse, and suspected adult attention deficit disorder ("ADD"), and therefore lacked capacity to focus on financial matters.  District court rejects testimony under DaubertExclusion reversed.  District court erred in excluding testimony, because Daubert is inapplicable during sentencing proceedings.  Federal sentencing guidelines require only that evidence bear "sufficient indicia of reliability," which represents more lenient standard than Daubert.  But error was harmless, because district court actually considered testimony and properly assigned it negligible weight.

United States v. Mamah, 332 F.3d 475 (7th Cir. 2003).  While in police custody, Ghanaian immigrant confesses to drug possession.  He later recants.  At trial, he calls anthropologist (Dr. Deborah Pellow) and sociologist (Dr. Richard Ofshe) to opine that Ghanaians are confession-prone, because Ghana is governed by oppressive military regime.  District court excludes testimony because: (1) neither expert is clinical psychologist qualified to assess defendant's susceptibility to interrogation techniques; (2) defendant has lived in United States for over fifteen years; and (3) defendant did not show similarity between tactics used by arresting officers and interrogation techniques in Ghana.  Jury convicts and defendant appeals.  Exclusions affirmed.  Testimony failed to satisfy Fed. R. Evid. 702.  Experts may have been qualified in their respective fields, and their research may have been methodologically sound, but they relied on insufficient facts or data to link their theories to facts of case, which involved non-coercive interrogation in America, not coercive interrogation in Ghana.

Newsome v. McCabe, 319 F.3d 301 (7th Cir.) (see the briefs), cert. denied, 539 U.S. 943 (2003).  Convicted of murder and later pardoned on grounds of innocence, man sues police under section 1983 for coaching three eyewitnesses to identify him in lineup and then concealing their coaching.  At trial, plaintiff's expert on eyewitness identification, psychologist Gary Wells, testifies, based on tests with over 500 subjects asked to perform similar identification in photo lineups, that odds of three eyewitnesses mistakenly identifying plaintiff would be substantially less than 1 in 1000, implying that police coaching was indeed responsible for eyewitnesses' unanimous but mistaken identification.  Admissibility affirmed.  Expert's testimony went to central factual issue, and defendants do not say how his methodology could be improved.  In any event, expert's assumptions and methods were fully explored on cross-examination.

United States v. Young, 316 F.3d 649 (7th Cir. 2002).  Man is charged with interstate domestic violence.  At trial, his victim recants her previous allegations that he abducted and beat her.  Prosecution calls psychiatric mental health nurse, Dr. Ann Wolbert Burgess, who opines over defendant's objection that victim's recantation is typical behavior pattern for domestic abuse victims.  Jury convicts and defendant appeals.  Admissibility affirmed.  Expert's experience is germane to reliability of her testimony, and she has forty years of experience as psychiatric nurse, specializes in criminal violence, has authored over 100 publications on forensic nursing, rape, and domestic violence, and has performed academic research studying several hundred battered women.  Her work is generally accepted in mental health profession, and two other circuits have upheld similar testimony (from this very expert, in one instance).  Defendant challenges reliability of her methods on three grounds: (1) formation of her opinion prior to interviewing victim; (2) reliance on "anecdotal" evidence involving other battered women; and (3) failure to interview victim's friends and family.  But: (1) jury was not required to credit defense expert who testified that failing to interview victim first was unsound; (2) expert properly based her opinion on extensive experience as well as careful review of facts; and (3) expert did interview victim, and it is unlikely victim's friends or family could have negated abuse dealt to victim by defendant over decade's time.

Siljak v. Ravenswood Disposal Serv., No. 02-1026 (7th Cir. Nov. 21, 2002) (unpublished) (see the briefs).  Woman alleging workplace sexual harassment offers [psychologist?] Dr. John Conlin to testify she suffers from post-traumatic stress disorder (PTSD) resulting from harassment.  District court excludes testimony and jury finds for defendants.  Exclusion affirmed.  If district courts properly apply Daubert and Kumho Tire standards, their evidentiary determinations may be reversed only if manifestly erroneous.  Here, district did not abuse discretion in concluding that expert followed no "established recognized methodology." 

United States v. Lamarre, 248 F.3d 642 (7th Cir.), cert. denied, 533 U.S. 963 (2001).  Husband and wife are charged with defrauding federally insured banking institutions by obtaining loans under false pretenses.  Trials are severed.  Husband's defense is that wife masterminded scheme and that because husband lacked intelligence to understand relevant financial transactions, husband could not have formed specific intent to defraud banks.  Husband offers testimony from psychologist that husband has IQ of 70, second-grade reading ability, and first-grade spelling and arithmetic ability.  Trial court excludes evidence because husband's intelligence and fraudulent intent are matters within jury's ken.  Conviction affirmed because exclusion was harmless error.  Parties agree that psychologist's testimony satisfied Daubert's reliability standard.  Laypersons may be qualified to evaluate matters within their everyday experience, but scientifically valid social science testimony may be offered to show jurors that commonly held beliefs are incorrect.  Judges are not required to exclude expert testimony merely because it overlaps with areas of lay knowledge.  But exclusion of psychologist's testimony was harmless error, because other record evidence made it impossible for any reasonable jury to conclude that husband was ignorant of fraudulent scheme.

United States v. Crotteau, 218 F.3d 826 (7th Cir. 2000).  In bank robbery trial, district court excludes defense psychologist's opinions on eyewitness testimony.  Exclusion affirmed.  Psychologist says that teller's eyewitness memory may be suspect by reason of post-traumatic stress disorder.  But district court did not abuse discretion in excluding expert evidence re reliability of eyewitness testimony, where: (a) defense had opportunity to cross-examine teller; (b) jury received cautionary instruction on limits of eyewitness testimony; and (c) corroborating evidence tended to confirm that defendant was robber.

Walker v. Soo Line R.R., 208 F.3d 581 (7th Cir.), cert. denied, 531 U.S. 930 (2000).  Employee is struck by lightning while working in railroad tower and subsequently suffers from psychological damage and impaired ability to work.  In FELA action against railroad, district court excludes testimony from plaintiff's psychologist re plaintiff's pre-accident IQ, because psychologist did not examine plaintiff before accident, and also because psychologist relied in part on erroneous account of plaintiff's educational history.  District court also excludes testimony from plaintiff's physician, because physician relied in part on psychologist's inadmissible findings, and also because physician, being neither psychiatrist nor psychologist, is unqualified to opine that plaintiff suffers from post-traumatic stress disorder (PTSD).    Exclusion reversed.  To estimate plaintiff's pre-accident IQ, psychologist administered National Adult Reading Test -- which is specifically designed to estimate pre-trauma IQ -- and patient's self-reported educational history, even if inaccurate, is type of information on which psychologists commonly rely.  Psychologist therefore employed legitimate methodologies in estimating pre-accident IQ, and any weaknesses in testimony were grist for cross-examination and jury evaluation.  Plaintiff's physician was entitled to rely on input from other members of medical team she headed, and mere fact that another of plaintiff's experts disagreed with physician's PTSD diagnosis does not render diagnosis inadmissible.    Remanded for new trial.

Bryant v. City of Chicago, 200 F.3d 1092 (7th Cir.), cert. denied, 531 U.S. 821 (2000).  Disparately impacted by Chicago Police Department's lieutenant's exam, black and Latino officers bring civil rights suit.  Police department offers testimony from psychologist to establish that lieutenant's exam has "content validity."  Admissibility affirmed.  Expert has extensive academic and practical experience in designing employment evaluations and has authored over fifty articles on subject for peer-reviewed journals.  His opinion was based on meticulous job.

United States v. Martin, 391 F.3d 949 (8th Cir. 2004).  Defendant is charged in connection with robbery after his two compatriots are apprehended and implicate him.  Both compatriots identify defendant in photo lineup and later at trial.  Trial judge bars testimony from defendant's expert on the unreliability of eyewitness testimony, Edward Geiselman, Ph.D.  Jury convicts and defendant appeals.  Exclusion affirmed.  Expert did not propose to testify on specific eyewitness identifications at issue, but only on reliability of eyewitness i.d. generally.  That subject falls within jurors' common understanding, and expert's testimony therefore would not have assisted them to determine any fact in issue.  Reversal for discretionary exclusion of eyewitness identification testimony is especially unwarranted where, as here, other corroborating evidence supports identification.

United States v. Bertling, 370 F.3d 818 (8th Cir. 2004).  Criminal defendant applies for funding for domestic violence expert to testify on her behalf at sentencing hearing.  District court denies application because court is generally familiar with subject matter from experience on bench.  Affirmed.  Proposed expert was not psychologist or psychiatrist and had not examined defendant, but merely proposed to testify on general issues involving domestic violence.  District court did not abuse discretion in concluding that it was already familiar with those issues from its experience on bench, and that testimony from expert therefore would not assist.

Mems v. City of St. Paul, 327 F.3d 771 (8th Cir. 2003), cert. denied, 540 U.S. 1106 (2004).  Firefighters allege racial discrimination.  During recess week at trial, their expert on emotional damages, Dr. John Taborn, re-interviews plaintiffs and takes notes reflecting symptoms and factual allegations not encompassed in expert's pretrial report.  Notes and interviews are not disclosed to defendant until night before expert's planned trial testimony.  District court excludes testimony as discovery sanction -- and also, alternatively, under DaubertAffirmed.  District court was not required to apply least draconian possible sanction under Fed. R. Civ. P. 37, and did not abuse discretion in excluding testimony as sanction.  Court of appeals therefore need not reach Daubert issues.

United States v. White Horse, 316 F.3d 769 (8th Cir.), cert. denied, 540 U.S. 844 (2003).  Native American is charged with sexually molesting six-year-old son.  District court excludes testimony from defendant's expert psychologist, who would opine that defendant has no sexual interest in young boys.  Jury convicts.  Exclusion affirmed.  Psychologist's opinion was based on Abel Assessment, which involves having subject review pictures of clothed and unclothed persons, as well as responding to questionnaire.  District court had legitimate concerns about Abel Assessment's "fit."  For example, there was no evidence that Abel Assessment was tested with statistically significant sample of Native Americans, and no pictures of Native American adults or children were included.  Moreover, instrument's author states, in her published study, that incest-only cases were excluded from two of instrument's three predictive equations "because incest offenders often act for reasons other than sexual interest."

In re Air Crash at Little Rock, Ark., on June 1, 1999 (Lloyd v. Am. Airlines, Inc.), 291 F.3d 503 (8th Cir.), cert. denied, 537 U.S. 934 (2002).  Airline passenger suffers leg and knee injuries during runway crash and later suffers from post-traumatic stress disorder (PTSD).  Passenger sues airline under Warsaw Convention.  Passenger offers testimony from psychiatrist ("Dr. Harris") that passenger's PTSD is biological and not merely psychological, based on passenger's symptoms as well as research indicating that chronic PTSD leads to physiologically based brain dysfunction.  Airline objects, at trial, that psychiatric community does not recognize theory that PTSD causes physical brain changes, and also that passenger has not shown any sufficient nexus between that theory and any physical condition in passenger's brain.  District court overrules objections as untimely.  Jury returns verdict for passenger.  Admissibility reversed.  Passenger's only true Daubert objection, regarding lack of general acceptance of psychiatrist's theory, was raised too late.  Daubert objections should be addressed before trial wherever possible.  But airline's other objection is well founded.  Dr. Harris testified that medical tests exist that could determine whether passenger suffers from physical brain dysfunction.  Because no doctor performed any such tests, no sufficient connection was established between psychiatrist's testimony and patient's condition.  On remand, which is necessary because district court adopted wrong standard for compensability of mental injury under Warsaw convention, trial court should conduct pretrial Daubert hearing, if Dr. Harris's testimony remains relevant in light of correct standard for compensability.  Moreover, testimony that passenger suffers from physical brain dysfunction should not be admitted unless supported by medical testing.

Smith v. Rasmussen, 249 F.3d 755 (8th Cir. 2001).  In defending refusal to fund sex-change surgery under Medicaid, Iowa offers testimony from board-certified psychiatrist on effectiveness and necessity of sex reassignment surgery.  District court excludes such testimony and permits psychiatrist to testify only re general psychiatric principles and diagnostic criteria, because psychiatrist's specific opinions on gender identity disorder are beyond psychiatrist's expertise and are based on mere literature review.  Exclusion affirmed.  Psychiatrist had previously examined only one patient with gender identity disorder, some eight years before trial, and his opinions on patient sub judice were founded only on literature review, review of patient's file, and two interviews.  Moreover, psychiatrist's opinions differed with sources acknowledged by psychiatrist to be respected medical authorities.  Trial court could properly conclude that psychiatrist lacked expertise to support testimony specifically relating to treatment of gender identity disorder.

United States v. Birdsbill, No. 03-30204 (9th Cir. May 4, 2004) (unpublished).  In sexual molestation trial, district court excludes expert testimony explaining results of defendant's Abel Assessment of Sexual Interest ("AASI") test.  Jury convicts.  Exclusion affirmed.  District court permissibly found that: (1) AASI test is used for treatment and is not designed for diagnostic purposes; (2) test's author did not use control group, and test may not ferret out "fakers"; (3) test has not been subjected to adequate peer review; (4) its error rate "varies from poor . . . to appalling"; and (5) test is not generally accepted as diagnostic tool for pedophilia.

United States v. Carreno, 363 F.3d 883 (9th Cir. 2004), vacated on other grounds, 543 U.S. 1099 (2005).  El Salvadoran woman residing in United States pays to have her sons smuggled into country.  Smugglers appear at rendezvous and announce price increase, saying they will return with boys when parents obtain money.  After consulting with authorities, parents contact smugglers, on police advice, and say they have money and will pay.  Police arrest smugglers when they show up for second rendezvous.  Did smugglers threaten boy with abuse if parents failed to pay?  Eight-year-old boy fails to mention any such threat during five FBI interviews over two years, but describes threat of abuse in sixth interview and testifies to threat at trial.  To rebut his testimony, defendants offer expert testimony on suggestibility of children.  District court excludes evidence under Fed. R. Evid. 702 because "there is no relevant proffer to establish the necessity for expert testimony in this matter."  In alternative ruling, district court excludes testimony as more prejudicial than probative under Fed. R. Evid. 403.  Jury convicts and defendants appeal.  Exclusion affirmed.  Defendants' arguments about late-breaking character of boy's allegations are "speculative enough" that appellate panel cannot say trial court abused its discretion.  Because district court's decision under Rule 702 is upheld, panel need not reach alternative basis under Rule 403.

United States v. Finley, 301 F.3d 1000 (9th Cir. 2002).  Man attempts to negotiate transparently bogus financial instruments obtained from Montana Freemen.  At trial on fraud charges, he defends on ground that he honestly believed instruments to be valid, offering testimony from psychologist Dr. John J. Wicks that defendant suffers from "atypical belief system."  District court grants prosecution motion to strike testimony as unhelpful to jury.  Exclusion reversed.  Psychologist relied on standard techniques of psychological testing, interviews, and gathering patient history, and his experience in evaluating thousands of persons should not be undervalued.  Expert did not opine on element of offense or usurp role of jury in evaluating credibility.

Provident Life & Accident Ins. v. Fleischer, No. 99-56866 (9th Cir. Aug. 30, 2001) (unpublished).  Professional loses license due to criminal activity.  In suit to recover under professional disability policy, professional offers expert testimony that bipolar disorder caused him to commit thefts from clients and credit card companies.  Exclusion affirmed.  Even if disability benefits were recoverable in California under theory that disability caused criminal misconduct resulting in loss of licensure, expert opinion that bipolar disorder caused thefts was properly excluded under Daubert.  Expert's report cited no scientific studies or principles supporting conclusion that bipolar disorder causes commission of crimes, or even to support proposition that persons with bipolar disorder are statistically likelier than others to commit crimes. 

S.M. v. J.K., 262 F.3d 914 (9th Cir. 2001), amended, 315 F.3d 1058 (9th Cir. 2003).  Housekeeper brings tort action against employer who sexually assaulted her.  Trial court admits testimony from plaintiff's psychiatrist that she suffers from post-traumatic stress disorder (PTSD).  Admissibility affirmed.  Psychiatrist first diagnosed plaintiff in 1992, when psychiatrists were still relying on revised third edition of Diagnostic and Statistical Manual (DSM-III-R).  Under DSM-III-R, triggering event for PTSD had to fall outside range of usual human experience.  Psychiatrist testified, however, that triggering event could be less severe, and next edition of Diagnostic and Statistical Manual (DSM-IV) omitted requirement that trigger be outside normal human experience, so that psychiatrist's diagnostic criteria now enjoy general acceptance.  Moreover, psychiatrist's testimony might satisfy even DSM-III-R, which suggests that rape and assault might be triggers.  In any event, mental health professionals often differ over diagnoses, but even questionable opinions may be admissible if in the realm where reasonable experts could differ.  Conformity with DSM is not precondition for admissibility, and trial court did not abuse discretion in admitting this testimony.

United States v. Garrido-Hernandez, No. 99-50502 (9th Cir. June 20, 2001) (unpublished), cert. denied, 534 U.S. 1169 (2002).  Defendant is convicted of illegally transporting aliens after district court refuses to admit defendant's expert on eyewitness testimony.  Exclusion affirmed.  Defendant never established foundation that witness was qualified as expert, that proposed testimony was scientific, or that testimony would assist jury.

United States v. Taylor, 239 F.3d 994 (9th Cir. 2001).  Pimp transports minor across state lines for purposes of prostitution.  Prosecution introduces testimony from "academic expert" on relationships between prostitutes and pimps to explain why minor failed to testify truthfully in previous proceedings against pimp.  Admissibility affirmed.  Defendant complains that no Daubert hearing was held, but district court did hold Daubert hearing.  Moreover, district court correctly ruled that expert testimony was relevant to buttress credibility of prosecution's principal witness.  General relationship between prostitutes and pimps is not subject of common knowledge.  Trier of fact, if unaware of such relationship, may be unable to assess veracity of prostitutes' testimony.   District of Columbia Circuit came to same conclusion, re same expert, in similar case.

United States v. Vallejo, 237 F.3d 1008 (9th Cir. 2001).  Hispanic defendant charged with importation and possession of marijuana offers, but district court excludes, testimony from defendant's high school psychologist that defendant's severe language disorder explains discrepancies between defendant's recollection of interrogation and recollection of customs agents.  Exclusion reversed.  Difficulties understanding and speaking English encountered by special education students in high-pressure situations are not within common knowledge of average layperson.   Such testimony was relevant to defendant's struggles to express himself during interrogation and at trial and could aid jury re same.  Sufficiency of psychologist's expertise was not disputed, and testimony was admissible although psychologist did not personally examine defendant, because expert did review ten years' worth of school documentation re defendant.  Failure to examine goes to weight, not admissibility.

United States v. Strode, No. 99-30074 (9th Cir. July 5, 2000) (unpublished).  District court excludes some but not all testimony from bank robbery defendant's expert on factors affecting eyewitness identification.  Exclusion affirmed.  Trial courts may exclude expert evidence on eyewitness identification even if evidence satisfies Daubert.  Here, trial court did not abuse discretion in partially excluding testimony as likely to confuse issues and mislead jury.  Trial court did caution jury on factors that affect reliability of eyewitness identifications.

United States v. Filler, No. 98-10396 (9th Cir. Feb. 1, 2000) (unpublished).  Murder defendant who made inculpatory statements during FBI interview wants to attack FBI policy of not taping interviews.  To this end, defendant offers testimony from law enforcement expert that other law enforcement agencies do tape interviews.  District court excludes testimony as irrelevant.  Defendant also contends he lacked capacity to premeditate.  In furtherance of this point, he offers psychiatric expert, who is permitted to testify that defendant suffers from mental illness but not to opine on mens rea or credibility of inculpatory statements from interview.  Exclusion affirmed.  Testimony re interview taping was irrelevant in absence of duty by FBI to tape.  Moreover, it is speculative to assume that tape would have assisted defendant.  As for psychiatrist, evidentiary law forecloses expert testimony on mens rea, and credibility issues are for jury.

United States v. Rodriguez-Felix, 450 F.3d 1117 (10th Cir. 2006).  Narcotics defendant offers testimony from psychologist Steven E. Clark, expert in eyewitness identification, to support defendant's contention that he was falsely identified.  District court excludes testimony and jury convicts.  Exclusion affirmed.  Tenth Circuit has not adopted per se ban on all testimony on eyewitness identification, but it will usually assist trier of fact only in narrow circumstances -- e.g., cross-racial identification, identification after long delay, identification after observation under stress, or situations involving unconscious transference.  Here, district court acted within its sound discretion in finding that witness did not present enough information to permit assessment of his testimony's reliability.  His report was unclear on whether he would rely on his own research or that of others, and did not indicate whether underlying research was peer-reviewed, published, or generally accepted.

United States v. Hebah, No. 04-8092 (10th Cir. Jan. 20, 2006) (unpublished).  Accused of engaging in nonconsensual sexual relations with seventeen-year-old girl after she got drunk and passed out, defendant confesses.  At trial, he recants and seeks to offer expert testimony from clinical and forensic psychologist Dr. William E. Flynn, who opines that defendant is prone to false confessions due to his overly compliant nature and his tendency to acquiesce in wishes of others.  District court bars testimony as incompetent, unreliable, and irrelevant.  Jury convicts.  Exclusion affirmed.  District court conducted pretrial Daubert hearing and found: (1) expert's vitae reflected no research or publications on false confessions; (2) he had limited training and experience in area; (3) he relied entirely on questionnaires and phone interviews administered to defendant and defendants' relatives to establish defendant's putative compliant streak; (4) he could not establish error rate for tests he administered; (5) he flip-flopped on whether defendant was compliant and/or prone to false confessions; (5) he did not personally administer intelligence test taken by defendant; (6) false-confession studies on which he relied were British and Icelandic based; and (7) confession testing is not generally accepted in United States and may not be sufficiently reliable, in general, to qualify for admissibility under Daubert.  Those findings supply enough basis for district court's reliability ruling, and its ruling on relevance therefore need not be reached.  Moreover, even if exclusion of expert's testimony had been error, it would have been harmless.   

McKenzie v. Benton, 388 F.3d 1342 (10th Cir. 2004), cert. denied, 125 S. Ct. 2294 (2005).  Did sheriff's department violate Americans with Disabilities Act when it refused to rehire officer with history of post-traumatic stress disorder?  Defendant sheriff's expert psychologist, Dr. Richard Wihera, opines that it was reasonable for sheriff's department to conclude that plaintiff constituted "direct threat" to others.  Sheriff also calls Tom Walton, Chicago police officer, who opines that decision not to rehire was reasonable from police supervisory point of view.  Jury finds for defendant.  Admissibility affirmed.  At trial, plaintiff objected only to Dr. Wihera's qualifications.  But he is qualified, having performed over 15,000 pre-employment evaluations for law enforcement agencies in 15 different states.  Plaintiff now argues, for first time on appeal, that Dr. Wihera's testimony was irrelevant.  But his testimony was directly pertinent.  Police officer's testimony was founded on experience and was helpful to trier of fact.  No abuse of discretion.

Ives v. Boone, No. 02-6397 (10th Cir. May 3, 2004) (unpublished), cert. denied, 543 U.S. 1001 (2004).  Habeas petitioner complains that prosecution's experts in underlying state trial on incest charges improperly vouched for truthfulness of his daughter's allegations of sexual abuse.  District court denies relief.  Affirmed.  Defense counsel's own questioning invited challenged testimony.  Moreover, testimony concerned truthfulness of daughter's suicidal feelings, not her allegations of abuse.

Morris v. Burnett, 319 F.3d 1254 (10th Cir. 2003).  Man molests boy.  In state criminal trial, man's defense counsel offers testimony from psychologist Dr. Barbara Bebensee to point to inconsistencies in victim's statements and to show that police investigation was not conducted properly.  State trial court excludes testimony insofar as it relates to victim's inconsistent statements, because state evidentiary law forbids opinion testimony on credibility of victim's testimony.  State trial judge also excludes expert's testimony re investigative techniques, because defendant did not carry burden of showing scientific support for proposition that certain investigative methods were more valid than others.  Jury convicts, and state appellate courts affirm conviction.  Man files petition for habeas corpus in federal court.  District court grants writ of habeas corpus because exclusion of Dr. Bebensee's testimony violated constitutional right to present defense.  Reversed.  Validity of investigative methods employed by police is not automatically relevant, and petitioner failed to show how testimony on this point would have tended to negate charges, beyond calling victim's credibility into question.  Under Scheffer, exclusion of opinion testimony on credibility does not implicate constitutional right to present defense where: (1) exclusion affects no significant right of accused; and (2) reliability of proposed expert testimony is questionable.  No significant right of accused was compromised here, because expert had no personal knowledge re victim's statements, and offered only opinion testimony re inconsistencies in statements made by victim to others, which jurors could evaluate for themselves.  Nor does record offer reliable scientific support for proposition that expert's methods for evaluating victim's veracity would be superior to average juror's.

Wilson v. Muckala, 303 F.3d 1207 (10th Cir. 2002).  In sexual harassment suit, district court: (1) permits plaintiff's treating psychiatrist to testify re her psychological condition, but not to opine on veracity of plaintiff's allegations of harassment; (2) excludes testimony from plaintiff's human resources expert on reasonableness of defendant's institutional response to plaintiff's allegations of harassment, finding that relevant facts did not require expert explication.  Exclusion affirmed.  Expert testimony on veracity of witnesses is not generally appropriate.  Subjects on which human resources expert would have testified were within ken of average juror and not so impenetrable as to require expert testimony.

United States v. Adams, 271 F.3d 1236 (10th Cir. 2001), cert. denied, 535 U.S. 978 (2002).  Responding to residential disturbance call, police find semi-automatic pistol during vehicle search.  When questioned, man in vehicle admits to purchasing gun and repeats same story at station, giving date, time, and location of sale and identity of seller.  After being charged with illegal possession of handgun by felon, however, man changes story and says he was lying to police to protect girlfriend, whom he had believed to be pregnant.  Trial court excludes testimony from clinical psychologist that man's low neurocognitive functioning and dependent personality structure raise strong possibility that confession was untruthful.  Exclusion affirmed.  Blanket prohibition on credibility witnesses in criminal trials may be unconstitutional, but witnesses must still pass evidentiary muster.  There are many reasons why expert testimony such as this may be inadmissible: (1) it may encroach on jury's function; (2) it may exceed scope of witness's expertise; (3) it may unduly sway jury.  Trial court was within discretion in concluding that testimony here would not assist jury.

Hellums v. Williams, No. 00-2100 (10th Cir. Aug. 8, 2001) (unpublished).  Man is accused of molesting child.  In New Mexico's state criminal proceedings, prosecution introduces expert testimony from psychologist Dr. Robert Zussman and counselor Julia Barker.  Jury convicts.  In federal habeas corpus proceedings, man complains that prosecution experts impermissibly vouched for victim's credibility.  District court grants habeas relief and orders new state trial.  Affirmed.  New Mexico follows federal rule on expert testimony, and that rule holds that expert opinions on victim's credibility are beyond scope of experts' specialized knowledge.  Admission of testimony was not harmless error.

United States v. Martinez, No. 00-2054 (10th Cir. Mar. 26, 2001) (unpublished), cert. denied, 534 U.S. 881 (2001).  Defendant is accused of aggravated sexual assault of ten-year-old girl.  At trial, victim's mental health counselor, Dr. Judith Tyler, testifies as prosecution expert, opining without objection that victim's symptoms are consistent with trauma.  Jury convicts.  Admissibility affirmed.  Because defendant raised no reliability challenge at trial, review is for plain error.  District court should have made reliability findings, but did not abuse discretion in admitting testimony.  Witness was amply qualified, and explained how she drew her conclusions.  Defendant also explored expert's reasoning on cross-examination.  Nor was testimony's probative value outweighed by any prejudicial effect.

United States v. Velarde, 214 F.3d 1204 (10th Cir. 2000), cert. denied, 541 U.S. 1069 (2004).  At prosecution for sexual abuse of child on Indian reservation, government offers testimony from two psychologists that child's statements and behaviors are consistent with episode of abuse.  District court refuses to conduct reliability analysis and defendant is convicted.  Admissibility reversed.  District court erred in failing altogether to exercise gatekeeping function, and error was not harmless.

Giddens v. Equitable Life Assurance Soc'y, 445 F.3d 1286 (11th Cir. 2006).  Suing for benefits under disability policy, plaintiff offers testimony from treating gastroenterologist, Dr. James Richard Spivey, and treating psychiatrist, Dr. Mary Patrice Webster.  Admissibility affirmed.  Both experts conducted extensive review of plaintiff's medical history.  Additional tests could have been performed, but both doctors' opinions were sufficiently reliable, without further testing, for them to opine on plaintiff's medical condition and job tasks he could and could not perform.

United States v. Smith, No. 03-14278 (11th Cir. Sept. 14, 2005) (unpublished).  Bank robbery defendant offers expert testimony from Dr. Michael Leippe to challenge reliability of testimony from prosecution's eyewitnesses.  District court excludes testimony and jury convicts.  Exclusion affirmed.  Dr. Leippe would have commented on (1) lack of correlation between eyewitness certainty and actual accuracy, (2) weapon-focus effect, and (3) impacts of stress on memory.  Previous Eleventh Circuit decisions have upheld exclusion of similar testimony, partly on theory that juries can weigh reliability of eyewitness testimony on their own.  Dr. Leippe presented evidence that might underline that rationale in part, by offering data not within jurors' common knowledge on certainty versus accuracy.  But this panel is bound by prior decisions within Eleventh Circuit absent intervening decision by Supreme Court or Eleventh Circuit sitting en banc.  Any error was likely harmless in any event.

Hall v. United Ins. Co. of Am., 367 F.3d 1255 (11th Cir. 2004).  In action for recovery under life insurance policy, beneficiary offers testimony from Rocco Petrella, licensed professional counselor, who opines that insured was not competent when he executed waiver canceling policy.  District court excludes testimony and grants summary judgment to insurer.  Exclusion affirmed.  District court permissibly found that expert failed to demonstrate his qualifications, cited no scientific methodology or literature, and failed to explain how he came to opposite conclusion from insured's medical doctor.

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