On September 25, the U.S. Tenth Circuit Court of Appeals (en banc) will conduct a rehearing of a three-judge panel’s reversal of former Qwest CEO Joseph Nacchio’s insider-trading conviction. The issue is whether the trial judge improperly excluded testimony from Nacchio’s expert witness, who would have disagreed with two government experts on an issue that was central to Nacchio’s guilt or innocence. This is about fundamental fairness. The ultimate ruling may impact defendants in all cases, not just Nacchio or white-collar cases. A defendant’s ability to call witnesses on his behalf at trial is an integral part of the Sixth Amendment right to put on a defense.

In a nutshell, the rules of criminal procedure require a defendant to notify the government of its intent to call an expert witness and provide a summary of the expert’s testimony, the reasons and basis for his opinion, and his qualifications. That’s it. If the government challenges the expert’s testimony and argues it shouldn’t be admitted because it is not reliable, relevant to the issues, or helpful to the jury, the defense gets to make its case for admissibility in writing, or at what is called a “Daubert hearing.” The defense has no obligation in criminal cases to request a hearing or demonstrate reliability of the testimony before a challenge is made by the government or raised by the court. Yet, the judge imposed such a burden on Nacchio at a stage of the proceedings in which he had no such burden, and then imposed the most drastic sanction possible, exclusion of his expert’s testimony, when he didn’t meet the burden. The National Association of Criminal Defense Lawyers (NACDL) has filed an excellent amicus brief (pdf) on Nacchio’s behalf, arguing that the issues are fairness and the integrity of the criminal trial process with ramifications for all defendants. It says the trial judge made three key errors in Nacchio’s trial:

First, the District Court held that the Rule 16(b)(1)(c) summary of the defense expert’s opinion was insufficient because it did not establish that the expert was reliable, when in fact Rule 16(b)(1)(c) contains no such criterion. Second, the District Court imposed a sanction without providing Defendant with any opportunity to be heard. Compounding this error, the District Court proceeded to impose the harshest punishment available – total exclusion of the expert witness – when the governing authority reserves that sanction for egregious cases in which a party is improperly gaming the system for strategic advantage.

As a result of these errors, the government was allowed to have two experts testify unchallenged. The brief quotes another court ruling that held:

It is an abuse of discretion to exclude the otherwise admissible opinion of a party’s expert on a critical issue, while allowing the opinion of his adversary’s expert on the same issue.

Nacchio’s case is important for all defendants. The brief argues:

Criminal defendants in cases large and small encounter Daubert questions. Indeed, while Daubert issues are prevalent in complex financial cases, they regularly arise in more “ordinary” criminal cases as well. A holding that places the onus of requesting a Daubert hearing on criminal defendants may in factsubject to greatest peril not white-collar defendants like Mr. Nacchio but, rather, the poorest and most unsophisticated defendants. here is no sound reason to change the rules in this way.

This week’s hearing will address:

  • First, whether Nacchio had to ask the court before trial to hold a Daubert hearing and present the methodology of his expert at the hearing — or demonstrate his expert’s methodology some other way before trial, such as in a brief.
  • Next the appeals court will address whether the trial judge failed to give Nacchio the opportunity to do either.
  • Whether it was Nacchio’s burden to ask for a Daubert hearing. Their last question concerns the remedy if the judge was wrong to exclude the expert testimony without a hearing: Should the remedy be a new trial for Nacchio or would it be sufficient to send the case back to the trial court to hold the evidentiary hearing?

I never predict what an appeals court will do. But, my answers would be: The defendant has a burden to demonstrate reliability (and appropriate methodology) in a brief or at a hearing only after a proper objection has been made by the Government or the Court. The trial judge was wrong to exclude the expert testimony without affording Nacchio an opportunity to do so. A new trial is required. A longer version of this article, with more legalese, is posted at TalkLeft.