BLOG BULLETS:

• You’re entitled to discovery on experts even if the expert didn’t prepare a report
• That discovery should include a summary of the expert’s opinions and the reasons for his or her opinions
• The government doesn’t always – even usually doesn’t – remember its obligations under this rule

NOW THE BLOG:

In this and my next blog, I want to talk about some other seeming government misunderstandings in our district. It’s not just the rule governing detention based on dangerousness (see “A Government Misunderstanding: About Pretrial Detention” in “Recent Posts” on the right) that the government doesn’t understand. There’s also a couple of discovery requirements they misinterpret, at least if you look at their disclosures and/or pleadings.

The one I want to talk about today is the obligation to disclose summaries of expert testimony. When I started this work in 1983, the only federal discovery requirement that existed for expert testimony was a provision in Rule 16 of the Federal Rules of Criminal Procedure requiring disclosure of existing expert reports. If the government intended to call an expert who hadn’t written a report – which was usually the case with the worst kinds of experts, like law enforcement officer “experts” on the “methods of drug traffickers” and such – there was no disclosure requirement at all. One commentator rightly labeled this in the title of a law review article as “Adjudication by Ambush.” Eads,Adjudication by Ambush: Federal Prosecutors’ Use of Nonscientific Experts in a System of Limited Criminal Discovery, 67 N.C.L. Rev. 577, 622 (1989), cited with approval in Fed. R. Crim. Pro. 16 advisory committee note (1993 Amendment).

In response to this criticism, the rule was amended in 1993 to require disclosure of expert testimony regardless of whether the expert had written a report. What was then subparagraph (a)(1)(E) and is now subparagraph (a)(1)(G) was added to create a requirement that the government disclose for any expert, regardless of whether the expert had written a report, “a written summary . . . describ[ing] the witness’s opinions, the bases and reasons for those opinions, and the witness’s qualifications.”

Perhaps because it’s a relatively new rule (though it’s been almost 20 years now), the government never seems to have gotten to understand what’s required by the rule, at least if you consider the disclosures they usually give us. What we consistently get are disclosures that read something like this:

[Mr. Expert] will be asked to testify as to his experience in the factors that indicate possession of drugs for sale or distribution to others, as opposed to possession for personal use. These factors include, without limitation, the amount of drugs, the nature of the drugs involved, the packaging of the drugs, the presence of cash or firearms with the drugs and the presence of packaging materials and scales or other devices for measuring.

While this disclosure might on its face seem to satisfy the rule, a more careful reading makes you realize it doesn’t. The summary reveals what the expert will give opinions about, but not what the opinions will be. It discloses that he will give opinions aboutwhat the amount of drugs, the nature of the drugs involved, the packaging of the drugs, the presence of cash or firearms with the drugs and the presence of packaging materials and scales or other devices for measuring mean, but not what those opinionsare. In other words, the summary says nothing about what amounts of drugs the expert will say show possession for sale, what nature of the drugs shows possession for sale, or what sort of packaging shows possession for sale. It also fails to expressly state which way the presence of cash and firearms, the presence of packaging materials, and the presence of scales or “other devices for measuring” cut, though this might arguably be inferred. Finally, this summary says nothing about the bases for whatever opinions the expert will give, which is a separate part of what the rule requires.

There are published opinions that articulate this precise criticism of similar summaries, moreover. One is United States v. Duvall, 272 F.3d 825 (7th Cir. 2001), in which the court explained:

We believe that the government’s notice did not adequately summarize or describe [the expert’s] trial testimony. The rule requires a summary of the expected testimony, not a list of topics. The government’s notice provided a list of the general subject matters to be covered, but did not identify what opinion the expert would offer on those subjects. For example, the statement that [the expert] would testify concerning “the manner in which methamphetamine is distributed” does not in any way identify the particular opinion that [the expert] offered at trial – for example, that methamphetamine is typically divided into small packages for distribution. Similarly, the statement that [the expert] would testify “concerning amounts of methamphetamine an individual might have for distribution, as opposed to personal use,” does not identify what amount, according to [the expert], would point to intended sales rather than use.

Id. at 828-29.

The government’s disclosure in another case – United States v. Capleton, 199 F.R.D. 25 (D. Mass. 2001) – went even farther than the disclosure in Duvall, in that it provided the substance of at least some opinions. See Capleton, 199 F.R.D. at 26, 27 (noting proffered opinions that prices discussed in conversations were “consistent with the prices in this area at the relevant time” and that operators of drug businesses “use beepers, cellular phones, code words or phrases, generally accept cash only and involve several levels of distributors in a hierarchy”). The Capleton court found this still insufficient because (1) the proffer “fails to connect those opinions to this particular case” and “no other opinions on [the expert’s] part are described, let alone summarized.” Id. at 27. It then ordered the government to provide “[a]t a minimum” the following: (1) a more complete summary of the opinions the expert would offer; (2) copies of any summaries prepared by the expert as a result of his analysis; (3) the underlying data relied upon by the expert in forming his opinion; (4) the expert’s resume; and (5) a list of cases in which the expert had previously testified.

To sum up, the government is often lackadaisical about its disclosures under this rule, and there’s authority for pushing it on the issue. It’s also an important thing to do in many cases, because full discovery is especially important with these soft, potentially biased experts, who are more likely than most to be hired guns.