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The Government Can’t Use An Expert To Introduce Prior Law Enforcement Contacts At Trial, According to the Ninth Circuit

Sometimes, a case comes along, and you wonder if the government is even trying to be fair.

Brad Santini drove from Mexico into California. He had 28 kilograms of marijuana hidden in his car. It was found. He was charged and went to trial.

At trial, Mr. Santini’s lawyers argued that he may have been tricked into driving the car across the border after someone else hid the marijuana in it without his knowledge.

258000_ski_sign.jpgTo buttress this argument, Mr. Santini’s counsel presented evidence that Mr. Santini had suffered a traumatic brain injury three years before his ill-fated border crossing. The defense called a clinical psychologist to testify as an expert that Mr. Santini had “permanent social defects” and that his kind of brain injury can leave people with difficulty with “social perception of other people.”

Because Mr. Santini had these permanent social defects, he was easier to trick, the defense argued.

The government also called a mental health professional – a psychiatrist named Dr. Kalish. Dr. Kalish’s testing consisted, apparently, of a criminal background check. You know, the kind they routinely teach psychiatrists to do during a residency.

Dr. Kalish reviewed Mr. Santini’s rap sheet. He noticed that Mr. Santini had “extensive law enforcement contacts” before his injury in 2005. Because of that, the government psychiatrist concluded, Mr. Santini didn’t change after 2005 because after 2005 he had the regrettable border crossing. So, because there were law enforcement contacts before the injury and after the injury, the injury didn’t affect his social perceptions.

As a matter of clear thinking this is suspect – surely not everything changes in a person after a brain injury. Mr. Santini may have been a Baltimore Ravens fan before his injury and after his injury as well, but it doesn’t mean that the injury didn’t have an effect on him. One would think, instead, that a psychiatrist would do some kind of mental health or function evaluation and base his conclusion on that.

In any event, the government was allowed to use its expert to introduce this testimony about Mr. Santini’s “extensive prior law enforcement contacts.” Mr. Santini was convicted at trial.

In United States v. Santini, the Ninth Circuit reversed, based solely on the decision to let the jury hear about Dr. Kalish’s testimony about Mr. Santini’s prior law enforcement contacts.

The court of appeals noted that this evidence was highly prejudicial and way outside of a psychiatrist’s area of expertise. The testimony was based, not on convictions, but on “contacts.” As the court of appeals noted,

For the reasons outlined above, the rap sheet was not sufficient to form the basis of Dr. Kalish’s opinion that Santini had engaged in “similar” criminal behavior prior to his brain injury. An expert in one field (Dr. Kalish was a psychiatrist) cannot express an opinion relying on data that requires expertise in another field (here, a rap sheet that would require interpretation by an expert in law enforcement record-keeping).

The evidence was not admissible under Rule 404(b). It was prejudicial, so barred by Rule 403. And it was outside of Dr. Kalish’s expertise, so not allowed under Rule 702.

Because the government cannot use an expert to introduce any evidence that smears a defendant whenever it can find an expert to articulate a questionable theory of quasi-scientific relevance, the Ninth Circuit vacated Mr. Santini’s conviction and remanded the case for a new trial.

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