Of note is that many practitioners think that the criminal discovery rules require less disclosure from prosecutors on experts than the civil case counterparts. But Tjoflat explains that that understanding is wrong. Prosecutors must make real expert disclosures or risk full reversal:
In closing, to understand just how significantly Mentor has been wronged today, consider what we would do if this case were criminal rather than civil. Under Federal Rule of Criminal Procedure 16(a)(1)(G), the government has a duty to “give to the defendant a written summary of any [expert] testimony that the government intends to use.” Fed. R. Crim. P. 16(a)(1)(G). The government’s summary must include the expert witness’s “opinions, the bases and reasons for those opinions, and the witness’s qualifications.” Id. As with the Civil Rules, the government has the continuing duty to inform the defendant of changes to the expert’s opinion. Id. 16(c). And, like Civil Rule 37(c), Criminal Rule 16 empowers the district court to “prohibit [a non-compliant] party from introducing
the undisclosed evidence.” Id. 16(d)(2)(C).
Now imagine this were a criminal trial. The government identifies Dr. Porter as an expert witness. Mentor obtains Dr. Porter’s summary, deposes Dr. Porter and—based on the information obtained—builds its defense. All seems to go as planned until, mid-trial, Dr. Porter changes his tune in a way that prejudices Mentor. Moreover, the circumstances of the reversal indicate that the government induced Dr. Porter to change his opinion. Mentor moves for a mistrial citing the
prejudicial and deliberate Rule 16 violation. The district judge denies Mentor’s motion, and Mentor appeals. Now the case is before our Court. What result?
Reversal. See United States v. Chastain, 198 F.3d 1338, 1348 (11th Cir. 1999) (“[W]here it is apparent . . . that the defense strategy may have been determined by the failure to disclose, there should be a new trial.” (citation omitted) (second and third alterations omitted)). Reversal, and perhaps—because of the violation’s deliberateness—a citation of criminal contempt for the prosecution. But over on the civil side—with the same degree of prejudice and the
same degree of deliberateness—we inadvertently reward this behavior.
Why is that? Why do we tolerate in a civil case the same kind of behavior that would require reversal in a criminal case? It seems that we have two standards of ethics and professionalism—one for criminal cases, and another, significantly more lenient standard for civil cases. Lawyers do without a hint of shame in a civil case what they would never think to do in a criminal one. This bifurcated sense of what ethics and professionalism require of the bar is sadly nothing new. But what is new—and what is made worse by today’s majority opinion—is the extent to which we will let civil lawyers get away with behavior that would be unthinkable in a criminal trial.
11 comments:
Funny but my view is that the opposite is true.
The eleventh has stretched the harmless error standard so far, that misconduct rarely gives rise to reversal. In those cases, you get a pithy introduction from Carnival Carnes or a vicious one from Pryor (both the men), describing how guilty and bad your client is. Then, they say the prosecutor committed misconduct (maybe) but they need not reach the issue because the evidence was so substantial.
In fact, I suspect that if this were a criminal case, Tjoflat never would have even written what he wrote here. It would be an unpublished opinion affirming. Money is on the line, so he cared enough to write something.
"a citation of criminal contempt for the prosecution"
OMG I almost hurt myself laughing when I read this.
The 11th Circuit is notorious for looking the other way even where the prosecution has engaged in blatant abuses.
Everyone knows judges think cases involving money are more important than cases involving human beings.
Just noting a few things - first Kaplan had to reach back 20 years to 1999 to find a reversal and second the 11th doesn't like defense oriented decisions- see the current fight with Pryor gunning to reverse the B Girls Tarahkov case because of the great language on fraud. This opinion won't be well received in Atlanta by the rest of court.
"Now imagine this were a criminal trial. The government identifies Dr. Porter as an expert witness. Mentor obtains Dr. Porter’s summary, deposes Dr. Porter and—based on the information obtained—builds its defense."
Does Judge Tjoflat believe depositions are taken in criminal cases?
Funny, I was thinking the same thing. I didn't realize we could depose the government's experts.
These judges are out to lunch. David- do you think federal judges should have terms instead of life tenure?
I am no fan of (most) of the 11th Cir judges, but if the federal judiciary is to be a co-equal branch of government and truly independent, you need life tenure. Our founding fathers knew what they were doing.
Our founding fathers also thought that judges would be given lifetime tenure when the assumed the bench after a long career in the law and not at 30 years old.
Our founding fathers got a lot right, and just as much wrong (slavery, the second amendment, etc.). Fifteen year terms. No reappointment to the same seat. Up or out.
I've only practiced civil but I've been told by the criminal folks that there is no discovery in criminal cases and the government only has to ID their witnesses the day before they are being called to testify.
Is this true for experts as well and Tjoflat didn't know that? If so that is pretty stunning.
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