United States v. Robert Barton (11th Cir. December 2018)
Daubert Evidence – It was not an abuse of discretion to admit an expert’s testimony concerning DNA evidence when there was evidence that the expert abided by well-established standards and there is no evidence that the expert did not abide by those standards.
Appeals – Newly available evidence probative of the reliability of an expert witness’s methodology will not be considered on appeal, as it is not part of the appellate record and a trial court cannot abuse its discretion by failing to consider evidence that doesn’t exist yet.
Barton was convicted on count of being a felon in possession of a firearm after a jury trial in which the Government introduced expert testimony regarding DNA evidence linking Barton to the firearm.
Prior to trial, a magistrate judge held a Daubert hearing to determine the admissibility of the proposed testimony by the Government’s expert witness. The Government’s witness testified as to her methodology for testing and analyzing DNA evidence—noting that her laboratory was accredited by a national board, adhered to international and FBI standards and other professional guidelines, and that the testing method she used in this case was “used by every accredited laboratory in the country.” The proposed expert admitted that the amount of DNA in this case was less than the “optimal amount” but that reliable conclusions could still be drawn from the amount she tested. Barton presented a defense expert to rebut the Government’s proposed expert testimony.
The district court adopted the magistrate’s Report and Recommendation to deny Barton’s motion in limine and admitted the DNA evidence and testimony from the Government’s proposed expert witness at trial.
On appeal, Barton argued that the Government expert’s methodology was unreliable for three reasons: 1) the expert’s testing did not adequately meet well-accepted standards; 2) the expert had failed to conduct a validation study on the DNA sample, which included the DNA of three or more individuals, and 3) the amount of DNA material was below the threshold and thus unreliable.
The Court rejected Barton’s arguments. Citing the district court’s considerable discretion in admitting expert evidence, the Court credited the magistrate’s findings that there was sufficient evidence that the expert used well-accepted standards in testing the DNA (standards the defense expert agreed were proper), that Barton had not presented any evidence indicating that the results would have differed if the Government’s expert conducted validation studies, and that the amount was under the threshold but could still be reliably tested under well-accepted standards. Ultimately, since the defense expert only challenged the Government’s ability to meet well-accepted standards, the defendant’s arguments only went to the weight of the Government expert’s testimony, not its reliability.
The Court also declined to consider new evidence that Barton sought to introduce on appeal that was probative of the Government expert’s methodology, but which was unavailable at the time of the Daubert hearing.
In declining to consider that evidence, the Court held that the new evidence offered by Barton was “not and, given their timing, could not be part of the record on appeal.” The Court noted that the trial court “simply could not have abused its discretion in failing to credit information not presented in that forum because the evidence did not exist yet.” To review the trial court’s decision in such a context would “effectively mandate de novo factual review” on appeal. The Court went on to describe the virtues of deferring to the trial court’s superior ability to “make fact-intensive evidentiary calls.”
The Court suggested that Barton and other defendants convicted based on forensic evidence that is later proved unreliable still have a remedy—they can move for a new trial under Rule 33, which can be granted based on “newly discovered evidence” or “if the interest of justice so requires.”
The Court concluded that even if there had been an error in admitting the DNA evidence and expert testimony, it was a harmless error given the defendant’s multiple confessions and corroborating testimony from other witnesses. And besides, the Court noted, the trial judge had sufficiently instructed the jury on their ability to consider the reliability of scientific testimony and weigh it accordingly.
Appeal from Middle District of Florida
Opinion by Marcus, joined by Newsom and Anderson