Sunday, November 08, 2020

Case o' The Week: Bacon Fried Old Expert Rule - Bacon and Remedies for Daubert Expert Error

Barabin burned by Bacon.   

United States v. Bacon, 2020 WL 6498258 (9th Cir. Nov. 5, 2020) (en banc), decision available here.

 Players: Decision by CJ Thomas, joined by Judges Paez, Berzon, Rawlinson, Callahan, Murguia, Hurwitz, Owens, Miller, Bade and Lee.   

 Facts: Bacon and his co-D, Ray, were charged with assault in a federal prison. See blog entry on Ray, available here (describing facts in greater detail). Before trial Bacon gave notice of an insanity defense and a shrink. The district court barred the insanity defense, and the defense mental health expert.

  The three-judge panel held on appeal that the district court abused its discretion in excluding the expert testimony. See United States v. Ray, 956 F.3d 1154 (9th Cir. 2020). The panel (reluctantly) remanded for the DJ to consider the expert again and for a new trial – regardless of whether the district court found the expert admissible. Id. at 1161. In a concurrence, Judge Watford complained about this outcome and criticized the older Barabin rule. Id.

  The case went en banc.

 Issue(s): “We voted to rehear this case en banc to consider what the proper remedy is on appeal when we conclude that a district court has erred under Daubert . . . ., by admitting or excluding expert testimony on one ground, but when we cannot tell from the record whether the admission or exclusion was nevertheless correct on other grounds.” Bacon, 2020 WL 6498258 at *1.

 Held: “Recognizing that there are different circumstances involved in every case, we conclude that a bright-line rule requiring a specific remedy is inappropriate. Instead, each panel should fashion a remedy ‘as may be just under the circumstances.’ 28 U.S.C. § 2106. The remedy may include remanding for a new trial or remanding for the district court to first determine admissibility, then requiring a new trial only if that admissibility determination differs from that in the first trial. We remand this case to the three-judge panel so that the panel may, in its discretion, determine the appropriate remedy in this case.” Id.

   “[A]pplying section 2106, we hold that when a panel of this Court concludes that the district court has committed a non-harmless Daubert error, the panel has discretion to impose a remedy as may be just under the circumstances . . . . Circumstances may require a new trial in some instances; circumstances may dictate a limited remand in others. Of course, the discretion of a panel is not unfettered. The normal rules of appellate review of evidentiary decisions still apply. And nothing in our decision removes Daubert’s important gatekeeping function. But our holding today restores Daubert errors to the usual realm of appellate review and remedy, rather than keeping them in a separate, special category.Id. at *4.

 Of Note: There’s no good spin: this new rule is bad for the defense. CJ Thomas recounts the history of the old automatic-retrial rule, and the en banc battles during the last decade to overrule it. See id. at *2-*3. This “retrial” rule, that had been created in the civil context, was extended to criminal cases in United States v. Christian, 749 F.3d 806, 813-814 & n.4 (9th Cir. 2014).

There were good reasons for the old rule: the new approach of post-verdict analysis “does not protect the purity of the trial, but instead creates an undue risk of post-hoc rationalization. This is hardly the gatekeeping role the Court envisioned in Daubert and its progeny.” Id. at *2, citing Mukhtar v. Cal. State Univ. Hayward, 319 F.d 1073, 1074 (9th Cir. 2003).

  Unfortunately, however, the tide has shifted in the Ninth: this new Bacon rule gained the support of a unanimous en banc court, with nary a dissent.

 How to Use: It is a brave new world, for Daubert error on appeal, and there’s precious little guidance in Bacon to Ninth three-judge panels, on which remedy is appropriate. Don’t give up on retrial after Bacon: CJ Thomas makes it clear that that option is still on the table. Id. at *4.                                             

For Further Reading: See any interesting news, this weekend? 

  As election results sink in, time to start wondering about Biden’s appointments – and specifically, on the A.G. to replace Barr at the DOJ. For an interesting discussion of this horse race, see Meet the Contenders for Biden’s Cabinet, available here



Image of bacon from



Steven Kalar, Federal Public Defender, N.D. Cal. Website at www.ndcal.fpd




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