United States v. Bacon, No. 18-50120 (9th Cir. 2020)
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The Ninth Circuit voted to rehear this case en banc to consider what the proper remedy is on appeal when it concludes that a district court has erred under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), by admitting or excluding expert testimony on one ground, but when it cannot tell from the record whether the admission or exclusion was nevertheless correct on other grounds.
Recognizing that there are different circumstances involved in every case, the en banc court concluded that a bright-line rule requiring a specific remedy is inappropriate. Instead, each panel should fashion a remedy "as may be just under the circumstances." 28 U.S.C. 2106. The en banc court explained that the remedy may include remanding for a new trial or remanding for the district court to first determine admissibility, then requiring a new trial only if that admissibility determination differs from that in the first trial. In this case, the en banc court remanded to the three-judgment panel so that the panel may, in its discretion, determine the appropriate remedy.
Court Description: Criminal Law. The en banc court remanded to the three-judge panel for a determination of the proper remedy in this criminal case in which the three-judge panel held that the district court had employed the incorrect legal standard for relevance under Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Federal Rule of Evidence 702, when it excluded testimony from the defendant’s proposed expert. The Court voted to rehear the case en banc to consider what the proper remedy is on appeal when this court concludes that a district court has erred under Daubert by admitting or excluding expert testimony on one ground, but this Court cannot tell from the record whether the admission or exclusion was nevertheless correct on other grounds. Recognizing that there are different circumstances involved in every case, the en banc court concluded that a bright-line rule requiring a specific remedy is inappropriate. Applying 28 U.S.C. § 2106, the en banc court held that when a panel of this Court concludes that the district court has committed a non-harmless Daubert error, the panel has discretion to impose a remedy as may be just under the circumstances. Restoring Daubert errors to the usual realm of appellate review and remedy, the en banc court wrote that circumstances may require a new trial in some instances and dictate a limited remand in others. The en banc court UNITED STATES V. BACON 3 overruled this Court’s prior case law to the extent it conflicts with this opinion.
This opinion or order relates to an opinion or order originally issued on September 4, 2020.
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