Down Goes Frazier

In U.S. v. Frazier, No. 01-14680 (Oct. 15, 2004), the Court (en banc) affirmed the district court's exclusion of defense expert testimony of a forensic investigator, and the defendant's conviction for kidnapping, during which a rape was allegedly committed.During the trial, Frazier sought to introduce the expert opinion of a private forensic investigator that even though a thorough rape investigation was conducted, there was no forensic evidence to substantiate a claim of rape in the case, and it would be expected that some transfer of either hairs or bodily fluid would have occurred if the victim's account were true. The district court disallowed this testimony. The district, however, allowed the government to put on expert testimony that the absence of forensic evidence of rape did not undermine the victim's account.The Court noted that a district court's decisions regarding the admissibility of expert testimony are reviewed for abuse of discretion. The admissibility of expert testimony under Fed. R. Evid. 702 involves a "rigorous"three-part inquiry: (1) whether the expert is qualified to testify competently, (2) whether the expert methodology is sufficiently reliable, and (3) whether the testimony assists the trier of fact in understanding the evidence. The Court noted that while experience can be a basis for qualifying an expert, the reliability criterion remains a discrete, independent and important requirement for admissibility. The Court recognized that, as to the first criterion, qualification was satisfied: he was sufficiently experienced in forensic investigations and rape investigations. The Court found, however, that the district court properly excluded the investigator's testimony because it was not reliable. The Court noted that the very opinion the investigator proposed to give - that one would"expect" inculpatory hair or seminal fluid evidence to be recovered - was inherently "uncertain." Moreover, the expert never explained just how his experience, or the texts he read, supported his "expectancy" opinion. No study was cited in support. Only a single investigation was mentioned. "Simply put,[the investigator] did not offer any hard information concerning the rates of transfer of hair or fluids during sexual conduct." The Court also found that the jury would not be assisted by the opinion, as it had no way of understanding what a normal "expectancy" would be for finding evidence of rape. In a lengthy footnote, the Court added that even if erroneous, the exclusion of the expert evidence would have been harmless error because defense counsel was able to make the argument to the jury.The Court also found no error in allowing the government experts to testify on rebuttal regarding the lack of significance of the failure to find forensic evidence of rape. The Court found that Frazier had opened the door to this issue by calling attention to the lack of forensic evidence. Further, it was not unfair to allow the government experts to testify even though the defense expert was not permitted to testify, because the exclusion of the defense testimony was based on its lack of reliability, a finding which did not necessarily apply to the government experts.Finally, the Court recognized that Frazier had a constitutional right to put on a defense. But this right did not extend to putting on unreliable expert testimony.

No Pryor Restraint

In Evans v. Stephens, No. 02-16424 (11th Cir. Oct. 14, 2004) (en banc), the Eleventh Circuit held that the President did not exceed his constitutional authority, under the recess appointment clause, to appoint Judge Pryor to the Eleventh Circuit without the consent of the Senate and concluded that "Judge Pryor may sit with this Court lawfully and act with all the powers of a United States Circuit Courtduring his term of office." In arriving at that conclusion, the Court held that: 1) the President has the authority to make recess appointments to Article III courts; 2) the recess of the Senate, as used in the recess appointment clause, includes an intra-session recess (here, a ten-day President's Day recess); and 3) the vacancy to be filled need not arise during the particular recess in order to be filled. Judge Barkett filed a long and scholarly dissent arguing that the recess appointment clause only authorizes the President to fill vacancies that arise during a recess and that the appointment must be made during that same recess. Although Judge Barkett would not reach the issue, she opines that the recess appointment clause only applies to inter-session recesses.["The President shall have Power to fill up all Vacancies that may happen duringthe Recess of the Senate." U.S. Const., art. II, § 2, cl.3]