Sunday, September 11, 2011

Case o' The Week: The Great Santini - Evidentiary Limitations on Gov't Experts

There's many reasons to hate government experts in criminal trials. Close to the top of the list is the old trick of smuggling radically-inadmissible evidence into trial, disguised as a "basis" for the government expert's opinion. Federal defense attorneys hate this gambit.

Turns out the Great Santini
is no fan, either. United States v. Santini, 2011 WL 3930078 (9th Cir. Sept. 8, 2011), decision available here.

Players: Big win by San Diego Ass’t Fed. Defender Zandra Lopez. Per curiam decision by Judges B. Fletcher, N. Smith, and District Judge James Gwin.

Facts: Santini was caught crossing the Mexican border with 28 kilos of marijuana hidden in his car. Id. at *1. At trial Santini argued that he’d been tricked: someone else had hidden the drug in his car without his knowledge. Id. The defense argued that Santini was easy to manipulate because he had suffered a traumatic brain injury in ‘05 – a defense shrink explained that this type of injury can cause difficulty with “social perception of other people.” Id. at *1.

The government’s shrink, Dr. Mark Kalish, disagreed, asserting that Santini’s rap sheet showed “extensive prior contacts with law enforcement” before 2005. Id. Dr. Kalish opined that if the current charges were related to the ‘05 brain injury, one wouldn’t expect to see this “similar behavior” before the accident. Id. “The defense objected to the admission of Dr. Kalish’s testimony regarding the rap sheet” and challenged “that testimony on appeal.” Id.

Issue(s): “The government argues that Santini’s criminal history was either admissible as evidence of his ‘state of mind’ under [FRE] 404(b) or could be introduced as the basis for Dr. Kalish’s opinion under [FRE] 703.” Id.

Held: 1. FRE 404(b): We conclude that the testimony of a psychiatrist relating disputed information contained in a rap sheet, which was neither admitted into the record nor examined by the district court, was not evidence that could support a finding by the jury that Santini had ‘extensive’ law enforcement contacts. Dr. Kalish’s testimony on this matter was, thus, not admissible under Rule 404(b).” Id. at *2.

2. FRE 702 and 703: “[The government’s] argument fails for two reasons. First, expert testimony must satisfy the requirements of Rule 702, which provides that an expert’s opinion must be ‘based upon sufficient facts or data.’ Fed.R.Evid. 702. For the reasons outlines above, the rap sheet was not sufficient to form the basis of Dr. Kalish’s opinion that Santini had engaged in ‘similar’ criminal behavior prior to his brain injury . . . . Second, the statement that Santini had ‘extensive’ prior law enforcement contact was far more prejudicial than it was probative in assisting the jury to evaluate Dr. Kalish’s opinion . . . . It was an abuse of discretion for the district court to allow this testimony.” Id. at *3.

Of Note: This brief opinion is rich and dense, and deserves a close read whenever an expert appears on the government’s witness list. Of particular note is its FRE 404(b) analysis. Id. at *1-*2.

Too often, government experts are backdoor conduits to the wholesale admission of otherwise inadmissible testimony. “I relied on the information for my expert opinion,” has become the miracle sanitizer that redeems cruddy evidence and means evidentiary anarchy when a government expert takes the stand. In the great Santini, the panel rejects this trend of blind deference and scrutinizes the bases for Dr. Kalish’s expert opinion with the same vigorous FRE 404(b) analysis leveled against other, mere mortal witnesses.

“Abuse of discretion” reversals in government-expert cases are rare birds indeed:
Santini should feature prominently our in limine filings and trial objections to government experts.

How to Use: Santini teaches that a government expert can’t be used to smuggle in inadmissible FRE 404(b) evidence. Another valuable lesson bears on FRE 702 and 703. Santini takes seriously the requirement that “otherwise inadmissible evidence” relied upon by a government expert must have a “probative value in assisting the jury to assess the expert’s opinion” that “substantially outweighs” the “prejudicial effect.” Id. at *2 (quoting FRE 703) (emphasis added).

This is a different, and more rigorous test than the vanilla FRE 401 and 403 requirements: remember to level this additional challenge when confronted by a government expert.

For Further Reading: There’s a big brouhaha brewing between Crawford and gang “experts.” For an interesting, practical, and recent article on this hot new issue, see Hon. Jack Nevin (left), Conviction, Confrontation, and Crawford: Gang Expert Testimony as Testimonial Hearsay, 34 SEATTLE U. L. REV. 857 (2011), available here.

Image of "The Great Santini" picture from

Image of the Honorable District Judge Jack Nevin from

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


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Saturday, December 10, 2011 9:10:00 AM  

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