Metropolitan News-Enterprise


Tuesday, September 8, 2020


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Ninth Circuit to Consider Instituting Conditional Reversals

En Banc Hearing Ordered in Case in Which Three-Judge Panel Criticized Precedent Requiring New Trial Where Judge Had Erroneously Ruled on Admissibility of Expert Testimony


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals will reconsider its policy against conditional reversals, an order filed Friday indicates.

By a vote of a majority of the non-recused active judges, it decided that the appeal in United States v. Bacon, No. 18-50120, would be reheard en banc, with the April 28 opinions in that case being vacated.

A three-judge panel—comprised of Circuit Judges Paul J. Watford and Mark J. Bennett, joined by District Court Judge Jed S. Rakoff of the Southern District of New York, sitting by designation—signed the April per curiam opinion which vacated a conviction for assault with a deadly weapon with intent to do bodily harm and assault causing serious bodily injury. They remanded the case for a new trial because District Court Judge Percy Anderson of the Central District of California had excluded, on an erroneous basis, a forensic clinical psychologist’s testimony in a case in which the defendant was relying on an insanity defense.

Anderson had barred the testimony of Dr. Nadim Karim because he had no conclusion as to whether defendant Patrick Bacon was unable to appreciate the nature and quality of his acts; the panel held that Anderson should have focused on whether the testimony would have assisted the jury in coming to its own conclusion on that factual issue.

Wasteful Approach

Watford, in a concurring opinion in which the other two members of the panel joined, said the panel was bound by precedent to order a new trial, but said he wanted to make note of “how wasteful of judicial resources that remedy potentially is.”

He expressed the view that the District Court should be at liberty to deny a new trial if it finds the proffered testimony to be inadmissible, after applying the correct standard.

That approach, he noted, was suggested by Circuit Judge Jacqueline H. Nguyen in her concurring and dissenting opinion in Estate of Barabin v. AstenJohnson, Inc., a 2014 en banc decision. Watford was one of four judges joining in Nguyen’s opinion.

Concurring Opinion

In his concurring opinion last April, Watford commented:

“Our panel does not hold that Dr. Karim’s testimony must be admitted at the new trial. We merely hold that his testimony may not be excluded on the ground originally given by the district court (relevance), and we remand the case so that the district court can assess the other grounds on which Dr. Karim’s testimony might still be excluded, most notably as not meeting the standard for reliability imposed by Federal Rule of Evidence 702….What if, on remand, the district court decides that Dr. Karim’s testimony is insufficiently reliable, and thus must be excluded once again? If that occurs, wiry in the world should the court hold a new trial at which a second jury will hear the same evidence heard by the jury at the first trial?”

He lamented that the “eminently sensible procedure” of a conditional reversal “is forbidden by existing circuit precedent.”

Friday’s order was issued in United States v. Bacon, No. 18-50120

2014 Opinions

Estate of Barabin was a civil case. In United States v. Christian, also decided in 2014, a three-judge panel held that the rule also applies in a criminal case.

The opinion in Estate of Barabin was authored by Then-Judge (now Senior Judge) N. Randy Smith. That case dealt with the erroneous admission, rather than exclusion, of expert testimony.

Smith declared:

“When we find the erroneous admission of evidence actually prejudiced the defendant, such that the error was not harmless, the appropriate remedy is a new trial,” adding:

“We have no precedent for treating the erroneous admission of expert testimony any differently.”


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