Opinion
Case No. CR-04-127-S-RCT.
January 22, 2005
MEMORANDUM ORDER REGARDING DEFENSE PSYCHOLOGIST TESTIMONY
Pending before the Court is the Government's motion to exclude or limit defense expert testimony in response to Defendant David Roland Hinkson's Designation of Expert Witnesses (Docket # 53); and Defendant's Supplemental Memorandum of Authorities Regarding Experts (Docket # 131). See Government's Response (Docket # 64); and Government's Supplemental Response (Docket # 164). Having reviewed the pleadings and after conducting a hearing on January 21, 2005, under Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), to consider the reliability and admissibility of the proffered testimony, and considering the arguments of counsel, the Court rules as follows.
Defendant seeks to admit as evidence the expert testimony of Dr. Jerry D. Doke, a Boise, Idaho, psychologist who recently evaluated the Defendant. Dr. Doke would testify on two general topics. First, he would explain Paranoid Personality Disorders (PPD) to the jury and would state that in his expert opinion, the Defendant, David Roland Hinkson, has such a disorder. The defense seeks to have Dr. Doke testify that people with PPD may have "difficulty understanding the reaction of others to their outspokenness and `bravado'" and that "the jury should be aware that in evaluating [Defendant's] credibility as a witness he may appear psychotic to an untrained listener, when he is not." Second, Dr. Doke would offer propensity testimony concerning the characteristic traits of persons with PPD by explaining that individuals "with personality characteristics similar to" the Defendant, who are extremely vocal and "aggressively pursue their beliefs," (1) do not usually resort to violence; and (2) usually use "socially accepted conflict resolution methods." The Government objects to introduction of this evidence on various grounds.
Initially, the Court rejects the Government's argument that the late notice of the full scope of the proffered defense expert testimony and lack of a formal expert report requires complete exclusion of Dr. Doke as a witness in Defendant's case-in-chief. The Ninth Circuit has construed notice of mental status expert testimony generously and determined that complete exclusion of such testimony as a sanction for a discovery rule violation is only appropriate where it was "willful and motivated by a desire to obtain a tactical advantage." See United States v. Finley, 301 F.3d 1000, 1018 (9th Cir. 2002) (citing Taylor v. Illinois, 484 U.S. 400, 415 (1988)).
On November 2, 2004, Defendant filed a timely, but brief and preliminary, notice of intent to call Dr. Doke. On December 22, 2004, Defendant disclosed the reports of Dr. Doke's findings as to Defendant's competency to stand trial as an attachment to an unrelated motion seeking his release from close custody to a mental health facility. See Docket ## 106, 109. On January 6, 2005, the Defendant filed a "Supplemental Memorandum of Authorities," which proffered additional testimony outside the scope of the original November 2, 2004, notice. On January 7, 2005, the Court made an oral finding on the record at the final pretrial conference that the Supplemental Memorandum was untimely, and that the new proffered testimony exceeded the scope of the original notice. As a limited sanction, the Court gave the Government additional time to file a written response to the Supplemental Memorandum, without prejudice as to any objection the Government might raise, and another opportunity to examine the Defendant mid-trial should the Government's psychologist wish to do so.
The Defendant has persistently imposed on the Court's efforts to oversee orderly and timely trial preparation by repeatedly ignoring deadlines. The Court further finds that such tactics have interfered with the Government's efforts to organize and present its case. However, the Court cannot say that this late filing of legal support and expanded scope of testimony was so egregious as to warrant complete exclusion of the proffered expert testimony as a necessary sanction. See Finley, 301 F.3d at 1018. Thus, the Court denies in part the Government's motion in limine to the extent that it seeks to prevent Dr. Doke from testifying at all. It does however grant in part the motion to limit the scope of his testimony.
DISCUSSION
Federal Rules of Evidence 702 and 704 generally govern the admission of expert testimony. Under Rule 702, in order for expert testimony to be admissible, it "must (1) address an issue beyond the common knowledge of the average layman, (2) be presented by a witness having sufficient expertise, and (3) assert a reasonable opinion given the state of the pertinent art or scientific knowledge." United States v. Vallejo, 237 F.3d 1008, 1019 (9th Cir. 2001). The Court must first determine whether "the reasoning or methodology underlying the testimony is scientifically valid," and second must "ensure that the proposed expert testimony is relevant and will serve to aid the trier of fact." Finley, 301 F.3d at 1008 (citing Daubert, 509 U.S. at 592-95).
Even if expert testimony is admissible under Rule 702, Rule 704(b) limits the use of such testimony in criminal cases. Rule 704(b) provides:
No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.
The Ninth Circuit has interpreted Rule 704(b) as prohibiting only expert testimony that would necessarily compel a conclusion on an ultimate issue. See United States v. Morales, 108 F.3d 1031, 1037 (9th Cir. 1997) (holding that Rule 704(b) prohibits only "testimony from which it necessarily follows, if the testimony is credited, that the defendant did or did not possess the requisite mens rea"). It does not prohibit admission of expert testimony if it is conclusive as to predicate issues where "the jury would still have to draw its own inference from that predicate testimony to answer the ultimate factual question." Id. at 1037; see also Vallejo, 237 F.3d at 1020.
Finally, even if expert testimony is admissible under Rules 702 and 704, the Court should conduct a balancing test under Rule 403 to determine whether its probative value outweighs any potential prejudice. Vallejo, 237 F.3d at 1021. Rule 403 requires the exclusion of otherwise admissible evidence if "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Fed.R.Evid. 403.
I. Paranoid Personality Disorder.
After conducting the Daubert hearing on January 21, 2005, the Court will allow admission of the first part of Dr. Doke's opinion regarding his conclusion that the Defendant suffers from Paranoid Personality Disorder (PPD) and the general personality characteristics of someone with PPD. This proposed testimony is reliable and supported by reasonable methodology and so meets the first requirement of Rule 702. Dr. Doke is a licensed psychologist, has a Ph.D. in Psychology (albeit from an unaccredited school), and has thirty-nine years of experience conducting clinical evaluations. The jury will have to decide what weight to give the opinion of a psychologist with Dr. Doke's credentials. The Court will not exclude him from testifying altogether by finding him incompetent to render an expert opinion on PPD because the Court is satisfied from the evidence adduced at the hearing that Dr. Doke's PPD testimony may assist the trier of fact in evaluating Defendant's testimony and behavior.
The methodology Dr. Doke employed in making his clinical findings appears to be sound. His findings were based on (1) the Defendant's explanation of his personal and family history; (2) observation of the Defendant; and (3) on the administration of three generally accepted tests: a Mental Status Checklist, Quickview, and the Beck Depression Inventory II. There is no evidence before the Court that suggests this is inadequate to make a clinical evaluation that a person suffers from PPD. Dr. Doke will be permitted to testify as to the methodology he employed in coming to this conclusion regarding the Defendant.
The Court finds that the proffered testimony regarding PPD generally also meets the second requirement for Rule 702, which requires that expert testimony be both relevant and helpful to the jury. The testimony may help the jury determine the credibility of Defendant's testimony. Through a mid-trial note to the Court, one juror has already posed a question inquiring as to whether a prior witness, Elvin Joe Swisher, who had some prior mental health work experience, ever conducted an evaluation of Defendant's mental status. The Court finds that the psychologist's testimony regarding PPD will be the kind of "specialized knowledge" responsive to the juror's question that will "assist the trier of fact to understand the evidence" of Defendant's testimony and behavior and may help address any underlying concerns members of the jury may have in this regard. See Fed.R.Evid. 702. The evidence is therefore admissible under Rule 702.
Moreover, Rule 704(b) does not preclude admission of this evidence. The proffered expert testimony does not compel a conclusion regarding the intent elements of the crimes of solicitation to murder Federal officers (Counts One through Nine) and of making true threats to torture and kill their children (Counts Ten and Eleven), as charged. Dr. Doke's testimony as to his diagnosis of Defendant's PPD demonstrates only that Defendant may perceive and interact with the world differently than the average person. As the Court will instruct, the jury is free to accept or reject this testimony in considering the Defendant's testimony and other evidence.
Finally, the Court finds that Rule 403 does not require exclusion of the proffered expert testimony of Dr. Doke regarding PPD. The evidence has a reasonable probative value because it may be helpful to the jury in determining Defendant's credibility and in deciding whether the Government has met its burden of proof on the elements of the crimes charged. The scope of the testimony is limited so the potential prejudice from confusion or misleading of the jury is reduced and admission of Dr. Doke's testimony as limited herein should not entail an undue amount of additional time or delay as this trial enters the third week of testimony. Therefore, the Court finds that the probative value outweighs any potential prejudice and Dr. Doke's general expert opinion evidence regarding his diagnosis that Defendant exhibits PPD is admissible.
II. PPD and Tendency Towards Violence.
The Court cannot say the same for the second part of Dr. Doke's proffered testimony regarding whether someone with PPD would be more or less likely to resort to violence or instead use "socially accepted conflict resolution methods." This proffered testimony is inadmissible because, after hearing testimony from both Dr. Doke and the psychologist called by the Government, Dr. Robert Engle, the Court finds from the evidence adduced prior to and at the hearing that it is not relevant and not supported by scientifically valid methodology, and so fails both prongs of the Rule 702 test. The testimony would also be confusing, and may mislead the jury into thinking that the Defendant suffers from some form of mental disease that renders him incapable of forming the requisite intent that the jury must decide and so the Court rules it is inadmissible under Rules 403 and 704(b). Finally, crediting the testimony of Dr. Engle over that of Dr. Doke in this regard, the Court finds that there is inadequate time to correct the methodological flaws due to lack of adequate testing underlying this portion of the proffered defense expert testimony.
A. Rule 702.
While the Court finds Dr. Doke to have sufficient knowledge and experience to conduct clinical examinations and to make findings as to an individual's mental status, the Court is not convinced that Dr. Doke is adequately qualified to offer to the jury his conclusions regarding the ramifications of a clinical finding of PPD in relation to rendering a forensic psychological finding predicting Defendant's propensity to engage in either violent or non-violent behavior on the dates in 2003 charged by Superceding Indictment. The Court's doubt stems from Dr. Doke's failure to conduct sufficient forensic psychological testing of Defendant and Dr. Doke's inability to cite a single piece of peer-reviewed literature supporting his opinion.
In concluding that the Defendant would not resort to violence, Dr. Doke testified that "based on my opinion as a psychologist, on [the Defendant's] history, on the nature of all of my evaluation and his responses, I believe he would use [only] legal means . . . in my opinion." The Court finds that Dr. Doke's experience was too limited and his testing inadequate, without any support in accepted psychological literature, to establish a reliable basis for offering such conclusions. While Dr. Doke has made clinical findings of PPD in the past, he has not regularly followed his patients' subsequent conduct, so he has no personal basis for knowing whether or not PPD individuals have a tendency to become violent or not.
His experience involving studies measuring propensity for violence is limited to one unpublished research survey conducted almost twenty years ago while working with sexual offender inmates at the Idaho State Penitentiary. This survey related to inmates convicted of sexual crimes, and had no specific correlation with individuals with PPD. Indeed, Dr. Doke was unsure at the Daubert hearing as to whether the conduct of such offenders was considered to be a violent crime. Moreover, his acknowledged focus is on treatment, not the study of behavioral tendencies. As he states: "I don't see their personality trait or that diagnosis as necessarily relevant to whether or not they would have done something. I see it more as a clinician as a diagnostic category with which we can treat someone."
Given Dr. Doke's limited forensic experience in this particular field of psychology, the Court must look closely at the methods and reasoning he used in forming his conclusions. The expert forensic psychologist introduced by the Government, Dr. Robert Engle, testified that "customary methodology used in establishing diagnostics in a forensic context requires a much higher standard than the criteria used in clinical practice." He pointed out several things that are key to accurate and reliable forensic psychological evaluations. First, verifying factual information presented to the examiner by an accused and his lawyer is critical because of an accused's vested interest in how he presents himself in the evaluation. Second, that forensic psychological testing is also critical because it "adds a layer or an element of objectivity to what is, essentially, a subjective evaluation of how the defendant comes across to the psychologist." Third, the evaluation should be specific to the relevant issue. Dr. Engle stated that "[i]f we are trying to predict violence or a solicitation for violence, there are . . . specific tests which can help which most probably would help in bringing an objective basis to an expression of that prediction." Dr. Engle also noted that it is customary to conduct a survey of the scientific literature specifically pertinent to the propensity question being asked.
In contrast to this standard, Dr. Doke acknowledged that he did not conduct any standardized test to assess propensity for violence. Furthermore, he conducted no research specific to the relationship between PPD and violence. Dr. Doke based his conclusions in large part on accepting as true the representations of Defendant and his attorney, Wesley Hoyt, in reaching his expert opinion that Defendant's history demonstrates only verbal reactions and not aggressiveness or violence. This conclusion was based solely on the Defendant's own statements, the statements of Defendant's counsel, and some unidentified letters or materials from Defendant's family.
The Court finds after considering the testimony at the hearing that the methodology used is unreliable and was inadequate to form a reliable opinion that would not mislead the jury as to the Defendant's propensity for violence. In order to accurately assess the Defendant, Dr. Engle testified that Dr. Doke should have conducted some form of objective testing to assess Defendant's risk of violence. Dr. Doke admitted that the reason he did not do so was because defense counsel had originally asked him to conduct a pretrial evaluation of Defendant's competency to stand trial, and only later (after cutoff dates had passed for completing the filing of pretrial motions and notice of expert testimony) did the defense request his opinion on Defendant's propensity to engage in violent behavior. Additionally, given his limited background with the specific issue of any link between persons suffering from PPD and propensity for violence, Dr. Doke should have conducted at least some research into forensic psychological studies that might address the relationship between PPD and violence. Finally, the Court credits Dr. Engle's testimony and discredits Dr. Doke's testimony, and finds that relying exclusively on the Defendant for information regarding Defendant's past is clearly inadequate to constitute an accepted methodology to make reliable, accurate findings as to propensity for violence, especially given the fact that Dr. Doke testified that he believes the Defendant may be borderline delusional.
Furthermore, the underlying reasoning behind Dr. Doke's conclusions is suspect. Besides his limited experience in assessing risk of violence, his only substantive support for his conclusion is that "[a]ccording to Schneider's theory, [people with PPD] can split into either the combative type or the eccentric type. The combative [such as Defendant Hinkson] can be actively quarrelsome about their fallacious beliefs, complaining bitterly about injustices done to them, often seeking retribution and are frequently litigious." From this, Dr. Doke concludes that such people would be less likely to resort to violence. But that is not the only reasonable conclusion. Cross-examination convinced the Court that there is no mutual exclusivity between a tendency to be litigious and a tendency to be violent, and Dr. Doke offered no reliable reasons to support such an opinion.
Dr. Doke would offer his opinion to the jury that "[t]here is no evidence that vocal persons who aggressively pursue their beliefs, such as on talk shows, could resort to violence." However, Dr. Doke acknowledges that he did not conduct extensive research into the subject and so he has no basis for declaring that "there is no evidence" on this subject. In testimony, he stated that he did not know if any such evidence exists. The Government pointed out on cross-examination one well-known exception to Dr. Doke's proffered opinion: that people who are outspoken against abortion have been known to become violent and bomb or set fire to abortion clinics. Also, the Government introduced one study, albeit related to adolescents, that shows there is a correlation between people with PPD and an increased tendency to be violent. While the Court certainly has no expertise to express a view on whether such a correlation exists, the Court finds that Dr. Doke made an unfounded and scientifically unsupported conclusion regarding people who are vocal and his opinion that they lack any tendency towards violence.
The Court therefore finds that Dr. Doke's conclusion regarding vocal people with PPD and any tendency towards violence is not sufficiently supported by scientifically valid, reliable reasoning and testing methodology and so the Court rules that this portion of his testimony is inadmissible under Rule 702. See Finley, 301 F.3d at 1008 (citing Daubert, 509 U.S. at 592-95). Dr. Doke testified that he relied in large part on his own clinical experience in reaching his opinion, but his experience in determining propensity for violence is extremely limited, and so the Court holds this is an inadequate basis for making such a determination. He did not conduct standard tests that are specific to assessing risk for violence; he did not conduct any particular research into studies on the relationship between PPD and violence; and his underlying reasoning has clear flaws in contravention of accepted forensic psychology and available scientific literature. Therefore, the proffered evidence regarding Defendant's PPD and tendency towards violence is inadmissible.
Moreover, even if the Court were to admit Dr. Doke's conclusion that persons like Defendant with PPD tend to not resort to violence by ruling his opinion was adequately supported, the proffered testimony is not relevant to the elements of the crimes charged in the Superceding Indictment. The crimes charged do not require a showing that Defendant personally "resorted to violence" or himself committed a violent act, but rather require proof (1) that when he made the alleged solicitations, he had the intent that another person engage in a crime of violence; and (2) that when he made the alleged threats, he had the intent to impede, intimidate, or interfere with a federal official while engaged in the performance of his or her official duties or to retaliate against a federal official on account of the performance of his or her official duties. There is no direct link between a tendency to resort to violence or not and the required elements of the crimes charged.
As to the solicitation charges, the Defendant has not proffered testimony that would establish the vital connection that the tendency to not resort to violence also demonstrates a tendency not to intend to ask others to resort to violence when all legitimate means of addressing Defendant's perceived wrongs have failed. The Court sees a clear distinction as a matter of law between having the intent to personally perform a violent act and having the intent to convince someone else to do so. Therefore the Defendant's proffered evidence is not relevant to the required intent showing here. Its admission would not be relevant to these charges and so is barred under Fed.R.Evid. 402.
As to the threats charges, Defendant's tendency to violence is not an issue because a true threat showing is objective: whether "a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of intent to harm or assault." United States v. Orozco-Santillian, 903 F.2d 1262, 1265 (9th Cir. 1990). The missing link Defendant fails to connect here is between a tendency to not resort to violence and a tendency not to intend to impede, intimidate, interfere, or retaliate. Again, there is no direct correlation between the two concepts, and Defendant's proffered evidence is not relevant to the required intent showing.
In summary, the Court finds that Defendant's proffered testimony is not admissible under Rule 702 because it does not have an adequate foundation in valid scientific reasoning and methodology and would not be helpful to the jury because Defendant's tendency to violence is simply irrelevant to the jury's determination of his mens rea on these charges. See Fed.R.Evid. 402.
B. Fed.R.Evid. 403.
Even if the proffered evidence were admissible under Rule 702, the Court holds that the proffered testimony would alternatively have to be excluded under Rule 403. The proffered evidence has at best a tenuous scientific foundation and Dr. Doke's experience in this area is extremely limited. His testimony is therefore subject to impeachment on a variety of bases, all of which the Government would have to be allowed to address. The time required and scope of cross-examination would necessarily be extensive, and would have a high probability of confusing the jury.
The Court also notes that if Defendant were allowed to introduce expert testimony of his alleged tendency to non-violence, under Fed.R. Evid 404(a)(1) the Government could seek to introduce character evidence to rebut this testimony. Character evidence "introduced for the purpose of proving action in conformity therewith" is admissible when offered by the prosecution to rebut evidence of a pertinent trait of character offered by an accused. Fed.R.Evid. 404(a)(1). While the Court does not know if such evidence exists, admission of any such evidence could further confuse and mislead the jury in what has already become a lengthy and protracted criminal trial.
Finally, undermining Dr. Doke's credibility on the issue of PPD and violence would also prejudicially undermine his credibility on the issue for which his testimony is appropriately admissible: his professional clinical opinion that Defendant suffers from PPD. The high probability of prejudice and confusion by eliciting his opinion on Defendant's propensity for violence as a character trait therefore substantially outweighs any nominal probative value. See Fed.R.Evid. 403.
C. Untimeliness.
Finally, the Defendant asserts that Dr. Doke could conduct the necessary unperformed tests to assess Defendant's risk of violence over the weekend and then testify next week, but the Court finds that this last-minute attempt to rehabilitate Dr. Doke's testimony is not proper. First, the Court is convinced after hearing the testimony of the two psychologists that as a matter of fact there is insufficient time to properly conduct such tests. Dr. Engle testified that two days would not be enough time to properly conduct the tests, interpret the results, research the scientific literature, and complete the necessary forensic findings. Second, Dr. Doke already has a preconceived idea of what his findings will be, without having conducted any appropriate tests or research. If over the weekend he makes "new" findings that support his preconceived conclusions, such findings will clearly be suspect. Third, the Government does not have adequate time to conduct its own tests now because of the late filing of the "Supplemental Memorandum" notice which finally outlined the full scope of Dr. Doke's proposed testimony. Given the questionable veracity of any last minute findings Dr. Doke may make over the weekend, the importance of giving the Government an opportunity to refute such findings is manifest.
The Court also finds that there would now be prejudice to the Government if such dilatory tactics were rewarded because the defense would have gained an unfair tactical advantage by virtue of repeatedly ignoring pre-trial deadlines previously established by the Court to ensure the orderly presentation of the evidence. Therefore, the Court holds that attempting to correct the existing underlying flaws in Dr. Doke's testimony regarding any link between PPD and Defendant's propensity for violence by conducting last-minute, mid-trial tests over the weekend before Dr. Doke will testify will unfairly prejudice the Government. Such testimony is not admissible based on this alternative ground.
ORDER
For these reasons, the Court holds that the expert testimony of Dr. Doke regarding his diagnosis of Defendant as suffering from PPD is admissible here at trial, as well as some general background on the characteristics of people suffering from PPD. However, the proffered testimony regarding whether people such as the Defendant who suffer from PPD tend to be more or less likely to resort to violence as it affects the mens rea of the Defendant in 2003 is not admissible.
IT IS SO ORDERED.