But let's start with the good.
In United States v. Ray, --- F.3d ---, No. 18-50115 (9th Cir. 2020), the Court vacated one of the defendant's convictions based on the erroneous exclusion of his proposed expert (who would have testified to his mental health).
The Court explained:
The correct legal standard is for the district court “to determine the relevance of the psychological evaluation the expert conducted and the medical diagnoses he made, not his ultimate legal conclusion regarding the defendant’s mental state.” Christian, 749 F.3d at 811. Here, the district court instead focused on Dr. Karim’s bottom-line opinions, rather than “his proposed expert testimony,” id., contrary to our guidance in Christian. There, we emphasized “that a district court deciding whether to admit expert testimony should evaluate whether that testimony ‘will assist the trier of fact in drawing its own conclusion as to a fact in issue’ and should not limit its consideration to ‘the existence or strength of an expert’s opinion.’” Id. (quoting United States v. Rahm, 993 F.2d 1405, 1411 (9th Cir. 1993)). We explained this is necessary because the doctor there could not have testified that the defendant “lacked the capacity to form the specific intent to threaten,” id. at 812 (citing Fed. R. Evid. 704(b)), and “[i]t would make little sense to require a conclusive opinion in determining admissibility, and then absolutely to forbid expression of the opinion in testimony,” id. (quoting Rahm, 993 F.2d at 1411 n.3). So too here. Dr. Karim could not have testified to the jury that Bacon’s mental disease and defect prevented him from appreciating the nature and quality or wrongfulness of his acts, because “an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense.” Fed. R. Evid. 704(b). Thus “the absence of an opinion to that effect in his report is not a valid reason to preclude his testimony.” Christian, 749 F.3d at 812.
Dr. Karim’s report demonstrates that his evaluation of Bacon was relevant to Bacon’s insanity defense. For example, Dr. Karim concluded that Bacon “was suffering from a myriad of severe mental health disorders,” and that Bacon “would have had difficulty understanding the nature and quality of his actions at the time of the offense conduct.” If admissible, testimony about these “severe” mental health disorders and their impact on Bacon’s perception at the time of the assault “may well have been helpful to the jury in deciding,” Christian, 749 F.3d at 812, whether Bacon was insane at the time.
Accordingly, the district court abused its discretion by precluding Dr. Karim’s testimony because he did not opine that Bacon was unable to appreciate the nature and quality of his acts at the time of the assault.The issue that is likely to get en banc attention is the remedy. Under Circuit precedent, when there is non-harmless error in precluding expert testimony, the Court must vacate the conviction and remand for a new trial.
In a concurrence, however, the full panel explained, "the far more sensible procedure would be to 'conditionally vacate the judgment and remand to the district court with instructions to determine whether the disputed expert testimony was admissible pursuant to the requirements of Rule 702 and Daubert.' 740 F.3d at 471 (Nguyen, J., concurring in part and dissenting in part). Under that procedure, if the court determined on remand that Dr. Karim’s testimony is inadmissible, it would simply reinstate the judgment. Only if the court determined that Dr. Karim’s testimony is admissible, and therefore was wrongly kept from the jury at the first trial, would there be a need for a retrial."
