Saturday, October 15, 2011

Case o' The Week: Inmate Gets Shanked -- Urena, Confrontation Clause, and Experts

In Urena, an inmate was hurt in an unfair fight, where contraints meant that he unable to defend himself in any meaningful way.

And that was just the trial. United States v. Urena, 2011 WL 4840665, (9th Cir. Oct. 13, 2011), decision available here.

Players: Hard-fought appeal by CD Cal AFPD Elizabeth Newman.

Facts: Inmate Urena was charged with assault and possessing a shank. Id. at *1. At trial, the government called the doc who had treated the victim – another inmate. Id. The doctor was offered to testify “on the nature and extent of [the victim’s] injuries.” Id. The doc’s report had opined that an injury above the victim’s eye “was likely caused by a punch, or a fall to a ground, not a knife.” Id. The government moved to prevent the defense from crossing the doc on causation – the cause of the injury – and the court granted that motion. Id. At trial, Urena tried to designate the doc an expert to ask about the injury; the district court refused. Id. Urena was convicted. Id.

Issue(s): 1. Confrontation Clause: “Urena . . . contends that the district court erred by preventing him from examining Dr. David about the cause of [the victims] injuries and that this violated his Confrontation Clause rights.” Id. at *3 . . . .

2. Expert Witness: “Urena alternatively argues that the trial court erred 1) by ruling that testimony about causation of the injuries would be expert testimony and 2) by not allowing Urena to designate Dr. David as an expert.” Id.

Held: 1. Confrontation Clause: “The Government called Dr. David to testify only as to the nature and extent of [the victim’s] injuries. Urena’s Confrontation Clause rights were not violated, as he was allowed to cross-examine Dr. David on these issues, and on matters of bias and motivation.” Id.

2. Designation as Expert: “[O]ther courts have held that a physician’s assessment of the cause of an injury is expert testimony . . . . We are persuaded, and agree with our sister circuits, that Dr. David’s opinion on issues of causation required expert testimony.” Id. at *3. “Urena’s argument that he should have been allowed belatedly to designate Dr. David as an expert to testify on the cause of the injuries also lacks merit . . . [I]nstead of designating a medical expert before trial, he tried without success to designate Dr. David as his expert once trial had begun. The district court has ample discretion to prevent a party from designating a new expert witness after the trial has started.” . . . “We hold that the district court here did not abuse its discretion in declining to permit Urena to add Dr. David as a defense witness on the causation issue during trial.” Id. at *3.

Of Note: With little analysis authoring Judge Gould adopts a new Ninth rule: a treating physician cannot testify as to causation, without being designated as an expert. Id. at *3. Could a percipient, lay witness – here, the treating doc – also be designated as an expert witness and opine as to causation? Sure, under the rationale of a regrettable Ninth expert decision, United States v. Anchrum. See Anchrum blog here.

Note that Judge Gould did not say in Urena that the treating doc could not have been designated as an expert as to causation: the problem was one of inadequate notice by the defense of this anticipated expert testimony. Id. at *3.

How to Use: As noted by fellow blogger Jon Sands, Urena stands for the broad proposition that a district court has tremendous discretion to control the presentation of witnesses in trial. Id. at *3. Urena significantly strengthens defense arguments that a district court can and should order detailed pretrial disclosure of government witnesses, and that a district court can unilaterally exclude witnesses (with no showing of unfair surprise or prejudice) if late disclosures were not in compliance with pretrial orders. Id.

The government, not the defense, is far-more-frequently the culprit with late witness disclosures, belated expert notices, or expert testimony that exceeds the pretrial description. (Probably because we rarely have witnesses). Along with the W.R. Grace decision, Urena bolsters a district court’s ability to put short work to these government shenanigans. See id. at *3 (quoting Grace, 526 F.3d 499, 516 (9th Cir. 2008) (en banc); see also W.R. Grace blog here

For Further Reading: For a thoughtful criticism of Urena’s rejection of a self-defense instruction, see blog here.

Image of "Shank" movie from

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

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