Robert Ambrogi – July 3, 2012
Every lawyer learns in law school that to be able to appeal an issue to a higher court, you must preserve it. No formaldehyde is needed for this, but what is required is that the lawyer clearly raise an objection at trial and get an express ruling from the trial judge.
Sounds easy enough. When objecting to an expert witness, however, a single objection may not suffice to preserve the issue for appeal. If your objection is to both the expert’s qualifications and methodology, you had better be specific about both grounds and secure a ruling that expressly addresses both. Otherwise, your appeal might be lost before it even begins.
That is the lesson of a June 6 opinion from the 10th U.S. Circuit Court of Appeals, U.S. v. Avitia-Guillen. In an appeal of a conviction of a Mexican citizen for unlawfully reentering the United States, the 10th Circuit concluded that defense counsel failed to properly preserve for appeal an objection to the methodology of a fingerprint expert.
When an Objection is Not Enough
Had defense counsel failed to object to the expert, the ruling would be no surprise. In fact, though, defense counsel did object to the expert testifying. The flaw in the objection, the 10th Circuit held, was that it focused on the expert’s qualifications and never mentioned her methodology.
Defense counsel had thought – and argued on appeal – that no specific objection to methodology was necessary. Here is why: In admitting expert testimony, a trial court is expected to consider both the expert’s qualifications and the expert’s methodology. This so-called gatekeeper role is required by Federal Rule of Evidence 702 and by a long line of cases starting with Daubert v. Merrell Dow Pharms., Inc. , 509 U.S. 579, 589 (1993), and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999).
Given that the trial court had to rule on both qualifications and methodology in order to admit the expert’s testimony, defense counsel argued, then both issues were preserved for appeal. Not so, the 10th Circuit said. “When no objection is raised, district courts are not required to make ‘explicit on-the-record rulings.’” Rather, it can be assumed that the court performed the required analysis “sub silentio.”
Appeal Challenged Judge’s Gatekeeping Duties
At the trial in this case, after prosecutors called the expert to the witness stand and established a foundation for her testimony, defense counsel cross-examined her. After questioning her about her job duties, training and publications, defense counsel objected to her qualifications. The trial judge overruled the objection and allowed the expert to testify.
On appeal, defense counsel did not directly challenge either the expert’s qualifications or methodology. Instead, counsel argued that the trial court erred “by failing to create an adequate record demonstrating that it satisfied its gatekeeping obligations.”
The only way to decide this issue, the 10th Circuit reasoned, is to look at the trial court’s findings. Absent an objection, however, the trial court was not required to make specific findings. “Where a party objects only to an expert’s qualifications, he does not preserve an objection to the expert’s methodology,” the court said.
Even though the 10th Circuit held that the issue was not properly preserved for appeal, that did not mean it could not be reviewed. Rather, the court explained, when the appeal involves expert testimony, the failure to preserve means that the appellate panel will apply a more relaxed standard of review.
When the objection is properly preserved, the court said, it reviews the lower court’s ruling de novo, as if it were deciding the issue in the first instance. When the objection is not preserved, however, the appellate court reviews the ruling only for “plain error.”
No Error, Circuit Concludes
With regard to the qualifications of the expert in this case, the 10th Circuit held that the issue was properly preserved but that the trial judge “gave ample evidence it was applying the Rule 702 standard.” The judge noted on the record that the expert was qualified based on her “training, education, background and experience,” the circuit panel explained.
As to methodology, however, the failure to preserve the issue for appeal meant that the appeals court was “left to look only for some obvious error in the court’s implicit finding” that the expert’s methodology was reliable. Finding nothing in the record that would indicate that the expert deviated from normal methods of fingerprint analysis, there was no basis to conclude that the trial judge committed plain error, the 10th Circuit held.
Here, then, is a lesson law school never taught: Just because a trial judge is supposed to decide an issue, don’t assume that issue is preserved for appeal. Be explicit in your objection and seek a ruling that answers it directly.