Commercial Litigation and Arbitration

Expert Testimony — Abuse of Discretion — Reversal

Reversal of a trial judge’s decision on expert testimony is uncommon. The legal construct governing review — abuse of discretion — weighs heavily in favor of affirmance. The trial judge in United States v. Sandoval-Mendoza, 472 F.3d 645 (9th Cir. 2006), excluded expert testimony offered by the defendant concerning his mental condition and susceptibility to suggestion proffered in connection with his entrapment defense. The language of the Court of Appeals in reversing is useful: ‛Although the abuse of discretion standard of review is liberal, the district court's decision to exclude the expert testimony creates a ‘definite and firm conviction that the district court committed a clear error of judgment.’ Daubert makes the district court a gatekeeper, not a fact finder. When credible, qualified experts disagree, a criminal defendant is entitled to have the jury, not the judge, decide whether the government has proved its case.“

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