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White Collar Defense & Compliance Developments in Criminal Law, Federal Case Law and Statutory Developments

Daubert permits former-agent expert to offer opinion as to shoddy investigative techniques

Posted in Evidence

Another example of the wide berth given to non-scientific expert testimony under Daubert is United States v. Poulsen, 543 F. Supp. 2d 809 (S.D. Ohio 2008). In that health care fraud case, the defendant proposed to elicit the testimony of Wayne Barnes, a former FBI agent who had in his government career worked health care fraud cases, to the effect that the government “did not conduct a proper investigation, nor do they have the necessary understanding of the health care industry and fraud within the industry.”

The government sought on two grounds to preclude this unusual testimony. First the government argued that Mr. Barnes’ testimony failed the Daubert reliability test in that the test failed to identify any industry standards or testing methodologies upon which he had relied. The district court rejected the argument, noting that under Sixth Circuit precedent the reliability of “specialized knowledge” (as opposed to scientific) expert testimony could not be measured by a strict application of the Daubert factors. Experience-based testimony satisfies Daubert’s reliability requirements.

Second, and more obviously, the government argued that Mr. Barnes’ testimony was irrelevant. This argument should have carried the day, since the depth of the prosecution’s understanding of an industry, or the completeness of its investigation, are not matters which in the ordinary case assist the jury in determining whether there has been proof beyond a reasonable doubt of the essential elements of the offense.

Yet, the district court rejected the relevance objection, too. The court held that expert testimony – just as much as cross-examination of law enforcement witnesses – which tends to show that the government failed to follow leads, misinterpreted information, or used investigative techniques “could be probative of whether the Government has made its case against Defendants.”

We do not know if the government is seeking an interlocutory appeal, but at least until it is reversed the Paulsen decision would support a broad array of expert testimony attacking the government’s general competence in conducting its investigation.