Monday, November 16, 2020

US v. Bacon, No. 18-50120 (11-5-20) (En Banc). What does the 9th do when a trial court commits Daubert error? What is the remedy? The precedent for trial court errors, such as incorrect legal standards, was a bright-line new trial if non-harmless. This was to enforce FRE 702 and the gatekeeper functions. However, if the record is incomplete, should a panel be allowed to remand to see if the evidence could be admitted or precluded on other grounds? The 9th concludes that an inflexible binary remedy is not appropriate. Each case – and possible error – may differ with the circumstances. The 9th holds that when there is a “non-harmless Daubert error, the panel has discretion to impose a remedy ‘as may be just under the circumstances’.” (10). The 9th may require a new trial sometimes; a limited remand in others. Daubert errors are remedied not by a special category, but under the usual appellate rules.

Prior caselaw that conflicts with this holding (requiring a remand) are overruled: Mukhar, Barabin II, and Christian.

The decision is here:


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