United States v. Downing (1985)

WEINER, District Judge.

... John W. Downing was indicted on counts of mail fraud, 18 U.S.C. §§1341 and 1342; wire fraud, 18 U.S.C. §1343; interstate transportation of stolen property, 18 U.S.C. §2314; and aiding and abetting, 18 U.S.C. §2. On October 28, 1982, ... the jury found Downing guilty of all but the interstate transportation of stolen property counts. On January 25, 1985, the United States Court of Appeals for the Third Circuit vacated the judgment of conviction and remanded the case to this court with instructions to conduct an evidentiary hearing with respect to the admissibility of certain expert testimony which this court had declined to admit at trial.... After consideration of the testimony presented at the hearing and the briefs filed by counsel, the court declines to admit defendant's expert testimony and reinstates the judgment of conviction.

In directing this court to hold an evidentiary hearing, the Third Circuit set forth various guidelines for determining the admissibility of scientific evidence that cannot be judicially noticed.... In formulating this approach to admissibility, the Third Circuit expressly rejected the test first propounded in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).... With the guidelines of the Third Circuit in mind, the court must now consider the evidence presented at the hearing.

II. ADMISSIBILITY UNDER FED. R. EVID. 702

Having reviewed the testimony of the evidentiary hearing, the court must assess it against the guidelines set forth by the Third Circuit.

A. THE SOUNDNESS AND RELIABILITY OF THE PROCESS OR TECHNIQUE USED IN GENERATING THE EVIDENCE

While the Third Circuit rejected the Frye test, the degree to which a scientific technique has gained acceptance may still be decisive. Other factors which the court identified as bearing on the question of reliability include: (1) the relationship of a new technique to established modes of scientific analysis; (2) the existence of a specialized literature dealing with the new technique; (3) the qualifications and professional stature of expert witnesses; (4) the non-judicial uses to which the scientific technique are put; and (5) the frequency with which a technique leads to erroneous results.

In view of the inconsistent results produced by the studies and the lack of testimony regarding either the methodology of those studies or the underlying data on which the test results are based, the court finds that the proffered testimony of Dr. Buckhout does not carry with it a sufficient degree of reliability to warrant its admission. Although the court finds this evidence unreliable, the court will proceed to a consideration of the other two guidelines set forth by the Third Circuit in the interest of developing a complete record.

B. THE POSSIBILITY THAT ADMITTING THE EVIDENCE WOULD OVERWHELM, CONFUSE, OR MISLEAD THE JURY

Assuming that this court found defendant's evidence reliable, it would then have to balance its reliability against the possibility that the evidence might confuse or mislead the jury.

The court reiterates that the two experts in the case sub judice neither presented the data on which they relied nor the methodology used to generate that data in any great detail. This corresponds precisely to the situation in which the Third Circuit warns of a danger of misleading a jury. Absent such information, a jury has little basis for evaluating the testimony they hear. Accordingly, the court finds that even if the evidence offered by defendant was reliable, it could not be admitted due to its risk of misleading the jury.

C. THE PROFFERED CONNECTION BETWEEN THE SCIENTIFIC RESEARCH OR TEST RESULT TO BE PRESENTED, AND THE PARTICULAR DISPUTED FACTUAL ISSUES IN THE CASE

It is perhaps in establishing the "fit" between the scientific research presented by Dr. Buckhout and the disputed factual issues of this case that defendant's argument for the admission of expert testimony is weakest....

In view of the foregoing, the court declines to admit the expert psychological testimony proffered by defendant under Rule 702.

The court's prior sentence of defendant is affirmed.