Judge Rejects Libby's Use of Memory Expert

In a 31 page opinion I have uploaded here (pdf), the Judge in the Scooter Libby trial today denied Libby's request to use a memory expert at trial. [Background here.]

I'm still digesting the opinion, but the shorter version seems to be:

  • The studies relied on by Libby mostly pertain to eye-witness identification and don't fit the facts of his case.
  • The 13 points of memory principles Libby expert Robert Bjork would testify to are unlikely to assist the jury because the jurors could figure most of them out.
  • Libby has not shown that the traditional method of cross-examining the Government's witnesses would not be sufficiently effective.

I wonder whether the Judge has not just handed Libby his first legitimate issue for appeal. I see definite corollaries between the memory principles that affect eyewitnesses and other fact witnesses. It would have been safer for the Government if the Judge had allowed the testimony.

While the judge is the gatekeeper of expert testimony, his discretion is not unlimited. It's better to be liberal in admitting such testimony.

The Judge used the right test under Daubert, but in my opinion, came up with the wrong answer. He acknowledged that Libby's memory defense is appropriate for the jurors to consider and then blocked them from learning important principles to assist them in weighing the accuracy of the memories of the various witnesses.

Interestingly, while the expert Libby sought to have testify at trial is Robert Bjork, his witness at the hearing to introduce Bjork's testimony was consummate memory guru (and TalkLeft pal) Elizabeth Loftus.

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    i don't know that i agree......................... (none / 0) (#1)
    by cpinva on Fri Nov 03, 2006 at 12:36:25 AM EST
    with your assertion, regarding the admission of the "expert's" testimony. true, it might be cause for appeal, but only if he's convicted. convictions, as you've frequently noted, are difficult to overturn.

    however, were i the prosecutor, i'd be tickled, one less thing to confuse a jury with, and raise the spector of reasonable doubt.

    the problem with most "experts", of this nature, is the almost total absence of hard science underlying their field. a medical doctor can point to something tangible, a heart for example, not so a "memory expert".

    yeah, i think it works to the prosecution's advantage.

    Told ya (none / 0) (#2)
    by spoonful on Fri Nov 03, 2006 at 09:30:56 AM EST
    Here is my comment from the first article on July 19th:
    "Cant't this guy be excluded from such testimony? Its potential for prejudicial impact far outweighs the relaibility of the science this guy is blabbering about."  See P. 26 of the Decision - me and Reggie must've gone to school together.

    my analysis - Scooter's appeal goes nowhere (none / 0) (#3)
    by scribe on Fri Nov 03, 2006 at 10:47:57 AM EST
    I have to disagree with TL on the merit of any appeal from denial of this motion (there will be an appeal - but I think it will lose).

    In short, the Judge barred the expert because the situation in issue is substantially different from the factual and scientific bases underlying the proposed expert's expertise.  The witness based the opinions on studies involving eyewitness identification and all the flaws we are familiar with.  This case is not about an eyewitness identifying a person, but rather, the defendant allegedly remembering (or not) what the defendant said or did.  These are apples and oranges.  In the litigation context, no one reasonably expects to allow a neurologist to testify as an expert to orthopedic injuries (except insofar as, perhaps, the messed-up joint is impinging on a nerve).  The proposed expert testimony is just that kind of apples and oranges.

    Second, the judge noted holdings in prior cases to the effect that "memory decreasing with time is common knowledge", which vitiates any need for expert testimony.  The "common knowledge" doctrine allows a party to put (an argument relying on) opinion testimony before the jury without need for expert testimony, and states generally that "where something is common knowledge, expert testimony is unnecessary", or even barred.  While I've seen used it mainly as a desperation attempt to save a case where an expert has been barred for rendering a lousy report (though once, a med-mal case I worked used it offensively, where a doctor was being tried for malpractice when the patient was Type B and had gotten two units of Type A, not mixing blood types being held common knowledge at least since a 1945 case), I have no doubt that it can also be used to streamline a case by limiting the impact experts would have on the jury (and its' ability to find facts).

    Third, the judge reminds the defense they can use cross-examination to take apart the government's witnesses, citing Fitz highly effective cross as an example of its utility.

    Fourth, it turns out some of the studies on which the proposed expert's testimony relied, were scientifically flawed. It is always bad for a proposed expert to find out that there's no science or flawed science underlying the opinions.  Things usually collapse pretty quickly then.  A courtroom is not a debating society, where the relative merits of, say, evolution and intelligent design are bandied about.  It is, as much as is possible when dealing with people and the things they say and do, a place where objective proof and logical support - if not absolute science - are required.

    Finally, the 403 probative v. prejudicial balancing puts a final nail in Scooter's appellate argument.  The judge said that, even if the expert' testimony was admissible under 702 and Daubert (which it isn't), it would be unduly prejudicial to a fair trial and take up too much time and be only of marginal relevancy (if any) and is therefore barred under 403.  Scooter won't win this on appeal.  Stated simply, the standards of review will not support Scooter's appeal.  Both the 702 and Daubert issue and the 403 issue are reviewed on an abuse of discretion standard.  This standard means generally that the appellate court will only overturn if the error is palpable, plain and the trial judge got it exactly wrong;  the trial judge gets a lot of deference on these calls.  To win this on appeal, Scooter would have to prevail on proving the trial judge got both the 702 Daubert issue and the 403 issue exactly wrong.  He didn't.

    One end note - while this looks like the end of the issue, it isn't.  This opinion smells a little like a "without prejudice" denial.  If the trial unfolds in a way that even remotely might weaken some or all of the factual underpinnings of the judge's opinion, you can be sure Scooter and his counsel will try again to get the memory expert testimony in.  They'll probably fail, but they will try.

    i can see............................. (none / 0) (#4)
    by cpinva on Fri Nov 03, 2006 at 11:19:17 AM EST
    how the lack of any substantive, scientific basis for an expert in a field might well yield an adverse result for said expert, and anyone foolish enough to rely on him/her.

    a foundation made of sand isn't a good place to build a house.

    oh, scribe, oddly enough, it turns out the courtroom in delaware actually was a place to argue the relative merits of ID v evolution. ID has none. lol