US v. Ray, No. 18-50115 and Bacon, No. 18-50120 (4-28-20)(Per Curiam; concurrence by Wardlaw). Insanity. Daubert. Expert opinion. Relevancy.  Defendant’s right to a defense. Prison stabbing.  This case has all those things. The takeaway is that (1) an expert in an insanity case does not have to state an ultimate opinion as to whether a defendant is legally insane because the jury decides that; but (2) the opinion still has to meet the Daubert requirements of being founded on science and is reliable; and (3) because the court used the wrong legal standard – abuse of discretion – in assessing the ultimate medical opinion (insanity) rather than whether it was reliable and relevant, a new trial is required rather than a limited remand to see if the expert’s opinion meets the reliability and Daubert gatekeeper standards.

As alluded to above, this was a prison stabbing. The co-defendant (Bacon) wanted to mount an insanity defense. His expert opined about the defendant’s myriad of severe mental health issues, and that on the day of the incident it was reasonable that he was suffering from a dissociative state and lacked an ability to differentiate his actions. The prosecution moved to preclude because the conclusion of a “dissociative” state was unsupported in the literature. The court precluded because the expert failed to state an ultimate opinion, and may not be relevant.

The 9th vacated and remanded, grudgingly, because of the wrong legal standard. The 9th held that the opinion was relevant and that the expert did not have to state an ultimate opinion. However -- nudge nudge – the district court still has a Daubert gatekeeper role and should determine whether the opinion can be deemed reliable, considering all the factors of Daubert and FRE 702.

The concurrence wishes the panel did not have to grant a new trial, but instead issue a limited remand to the district court to see, under the correct standard, whether Daubert was satisfied.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/04/28/18-50115.pdf