A federal criminal white collar lawyer has to be willing and able to use all of the tools in his or her arsenal, including pre-trial motion practice. This includes motions to bar the Government’s expert witnesses. There are various grounds for such motions. One of the most straightforward is a motion to bar premised upon the Government’s failure to timely disclose the expert, pursuant to either Rule 16 or the Court’s own Scheduling Orders. It is important to note in any such motion to bar not only that the Government’s expert disclosure is untimely, but also that the belated disclosure results in prejudice to the Defendant. Prejudice may be demonstrated in several ways, including: 1) the Defendant’s inability to legitimately investigate the expert, including identifying and obtaining sworn testimony from that expert in other matters: 2) the Defendant’s inability to vet and retain a rebuttal expert. For those reasons alone, federal district courts may grant the Defendant’s motion and bar the expert from testifying at trial. See, e.g., United States v. Peoples, 19 CR 418 (United States District Court, Northern District of Illinois) (barring Government expert from testifying). A second basis for a motion to bar the Government’s expert may arise from the Government’s “disclosure” of the substance of the expert’s opinions. Far too often, the Government’s disclosure only vaguely describes the expert’s opinions and the bases for them. At a minimum, the Defendant may succeed in requiring the Government to provide a more fulsome disclosure, and/or require the Government to identify and promptly produce all of the materials, including but not limited to learned treaties, articles, etc., that form the foundation for the expert’s opinions. In a motion to bar, counsel should always seek an Order from the court requiring the prompt disclosure of materials that the expert is purporting to rely upon, as well as transcripts (including those already written) containing the expert’s prior sworn testimony. See, e.g., United State v. Han, 18 CR 388 (United States District Court, Northern District of Illinois) (ordering production of transcripts from expert’s prior appearances at other trials). Those materials will almost always provide fertile grounds for cross-examination of the witness at trial. Moreover, the onus should be on the Government to produce those materials, as opposed to defense counsel spending countless hours attempting to identify, locate, and copy sometimes non-public source materials. Finally, a white collar defense lawyer should never hesitate to challenge the Government’s expert on Daubert grounds. Daubert motions in the federal criminal law context will be addressed in subsequent posts.
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October 10, 2022