In the Supreme Court of the United States

Transcription

1 12P No In the Supreme Court of the United States JOHN HABIB, Petitioner, -- against -- THE UNITED STATES OF AMERICA, Respondent. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTEENTH CIRCUIT BRIEF FOR PETITIONER

2 QUESTIONS PRESENTED I. Does Federal Rule of Evidence 702 allow expert testimony about the credibility of a witness, when the witness suffers from a mental disorder that impairs his ability to be truthful? II. III. IV. Does the Fifth Amendment protect a former employee from compelled self-incrimination in the act of producing his personal copy of corporate documents, when he is no longer an agent and has severed all ties with the corporation? Does the exception in Federal Rule of Evidence 606(b)(2)(A) allow a juror to testify about statements evincing religious bias made during deliberations, when the defendant s religious views were not relevant at trial and therefore never mentioned or discussed by either party? Does the Sixth Amendment require an inquiry into the validity of a verdict, when statements made during deliberations revealed that a pervasive religious bias prevented the jury from conducting an impartial deliberation process? i

3 TABLE OF CONTENTS Page Questions Presented... i Table of Authorities...v Opinions Below...1 Statutory Provisions...1 Standard of Review...1 Statement of the Case...2 I. Statement of Facts...2 II. Statement of Procedural History...3 Summary of the Argument...7 Argument...10 I. FEDERAL RULE OF EVIDENCE 702 PERMITS EXPERT PSYCHIATRIC TESTIMONY ON THE CREDIBILITY OF A SPECIFIC WITNESS WHEN A MENTAL DISORDER AFFECTS THAT WITNESS ABILITY TO BE TRUTHFUL A. As a Matter of Law, Rule 702 Does not Bar Expert Opinion Testimony on the Credibility of a Witness B. Expert Psychiatric Testimony Regarding a Mental Disorder s Specific Effects on a Witness is Admissible Because it will Assist the Jury in Determining the Credibility of that Witness II. A FORMER EMPLOYEE MAY ASSERT HIS FIFTH AMENDMENT PRIVILEGE TO THE TESTIMONIAL ACT OF PRODUCING A PERSONAL COPY OF CORPORATE DOCUMENTS BECAUSE THE COLLECTIVE ENTITY DOCTRINE IS LIMITED TO INDIVIDUALS ACTING IN A REPRESENTATIVE CAPACITY ii

4 Page A. The Collective Entity Doctrine does not Apply to Former Employees Because, Under this Court s Modern Rulings, its Analysis Centers on the Act of Production and its Application is Limited to Individuals Acting as Agents of the Collective Entity The modern analysis of the collective entity doctrine focuses on the act of production rather than the nature of the documents This Court s ruling in Braswell should not be expanded to include former employees because they cannot act in a representative capacity B. Habib s Act of Producing Corporate Records is Sufficiently Testimonial to Support Invoking His Fifth Amendment Privilege Against Self-Incrimination III. IN ASSESSING THE VALIDITY OF A VERDICT, STATEMENTS MADE DURING DELIBERATIONS WHICH REVEAL A JUROR S RELIGIOUS BIAS ARE ADMISSIBLE UNDER THE EXTRANEOUS PREJUDICIAL INFORMATION EXCEPTION OF FEDERAL RULE OF EVIDENCE 606(b)(2)(A) A. The Extraneous Prejudicial Information Exception Under Rule 606(b)(2)(A) Allows Courts to Consider Testimony that Jurors Obtained and Considered Evidence not Admitted at Trial, Such as a Defendant s Religious Beliefs B. The Fourteenth Circuit s Reliance on this Court s Holding in Tanner was Misplaced Because that Holding was Limited to the Issue of Juror Incompetence as Opposed to Juror Bias C. The Interests this Court Intended to Protect in Tanner are Furthered by Allowing Juror Testimony of Religious Bias IV. THE SIXTH AMENDMENT REQUIRES AN INQUIRY INTO THE VALIDITY OF A VERDICT WHERE JUROR BIAS DEPRIVES A DEFENDANT OF HIS RIGHT TO A FAIR TRIAL BY AN IMPARTIAL JURY iii

5 Page A. Pervasive Religious Bias Violates a Defendant s Sixth Amendment Right Because it Prevents the Jury from Conducting an Impartial Deliberation Process B. The Protections Suggested by this Court in Tanner are Insufficient to Protect a Defendant s Sixth Amendment Right where Bias Taints Deliberations Conclusion...32 Appendix... A-1 iv

6 TABLE OF AUTHORITIES United States Supreme Court Cases Page(s) Batson v. Kentucky, 476 U.S. 79 (1986) Boyd v. United States, 116 U.S. 616 (1886) Braswell v. United States, 487 U.S. 99 (1988)....18, 19 Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993)....10, 12, 13 Fisher v. United States, 425 U.S. 391 (1976)....16, 17, 18, 20 Hale v. Henkel, 201 U.S. 43 (1906) Mattox v. United States, 146 U.S. 140 (1892) McDonald v. Pless, 238 U.S. 264 (1915) , 28 McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548 (1984) , Parker v. Gladden, 385 U.S. 363 (1966) Pierce v. Underwood, 487 U.S. 552 (1988)....1 Rosales-Lopez v. United States, 451 U.S. 182 (1981) Rose v. Mitchell, 443 U.S. 545 (1979) Rushen v. Spain, 464 U.S. 114 (1983) v

7 United States Supreme Court Cases (continued) Page(s) Tanner v. United States, 483 U.S. 107 (1987).... passim United States v. Doe, 465 U.S. 605 (1984)....16, 18 United States v. Hubbell, 530 U.S. 27 (2000) United States v. White, 322 U.S. 694 (1944) Wheeler v. United States, 226 U.S. 478 (1913) United States Court of Appeals Cases Arcoren v. United States, 929 F.2d 1235 (8th Cir. 1991)....13, 14 Borawick v. Shay, 68 F.3d 597 (2d Cir.1995), cert. denied, 517 U.S (1996) Doan v. Brigano, 237 F.3d 722 (6th Cir. 2001), rev d on other grounds, Wiggins v. Smith, 539 U.S. 510 (2003) Fox v. Dannenberg, 906 F.2d 1253 (8th Cir.1990) In re Grand Jury Subpoenas Duces Tecum Dated June 13, 1983 & June 22, 1983, 722 F.2d 981 (2d Cir. 1983) In re Three Grand Jury Subpoenas Duces Tecum Dated Jan. 29, 1999, 191 F.3d 173 (2d Cir. 1999) Kittle v. United States, 65 A.3d 1144 (D.C. Cir. 2013)....22, 24, 26, 28, 30 Nimely v. City of New York, 414 F.3d 381 (2d Cir. 2005) vi

8 United States Court of Appeals Cases (continued) Page(s) Sellars v. United States, 401 A.2d 974 (D.C. Cir. 1979) Shillcutt v. Gagnon, 827 F.2d 1155 (7th Cir. 1987) United States ex rel. Owen v. McMann, 435 F.2d 813 (2d Cir. 1970) United States v. Adams, 271 F.3d 1236 (10th Cir. 2001) United States v. Beasley, 72 F.3d 1518 (11th Cir. 1996) United States v. Benally, 546 F.3d 1230 (10th Cir. 2008) , 28 United States v. Benson, 941 F.2d 598 (7th Cir. 1991) United States v. Colombo, 869 F.2d 149 (2d Cir. 1989) United States v. Gonzalez-Maldonado, 115 F.3d 9 (1st Cir. 1997) United States v. Hall, 93 F.3d 1337 (7th Cir. 1996), cert. denied, 527 U.S (1999) United States v. Heller, 785 F.2d 1524 (11th Cir. 1986)....28, 30 United States v. Henley, 238 F.3d 1111 (9th Cir. 2001) , 29 United States v. Hill, 749 F.3d 1250 (10th Cir. 2014) United States v. Moore, 786 F.2d 1308 (5th Cir. 1986) vii

9 United States Court of Appeals Cases (continued) Page(s) United States v. Partin, 493 F.2d 750 (5th Cir. 1974) United States v. Shay, 57 F.3d 126 (1st Cir. 1995) , 13, 14 United States v. Vest, 116 F.3d 1179 (7th Cir. 1997) United States v. Villar, 586 F.3d 76 (1st Cir. 2009), cert. denied, 131 S. Ct (2011)....24, 28, 29, 30 United States District Court Cases Tobias v. Smith, 468 F. Supp (W.D.N.Y. 1979) , 26, Constitutional Provisions U.S. CONST. amend. V....1, 16 U.S. CONST. amend. VI....1, 27 Federal Statutes Fed. R. Evid. 405(a) Fed. R. Evid. 606(b) Fed. R. Evid. 606(b)(2)(A)....1, 21 Fed. R. Evid. 608(a) Fed. R. Evid , 10, 11, 13 Model Rules of Prof l Conduct R. 3.5(c)(3) Legislative History Materials Fed. R. Evid. 405(a) advisory committee s notes Fed. R. Evid. 608 advisory committee s notes viii

10 Legislative History Materials (continued) Page(s) Fed. R. Evid. 702 advisory committee s notes Treatises, Books, and Law Review Articles Amanda R. Wolin, What Happens in the Jury Room Stays in the Jury Room... but Should It?: A Conflict Between the Sixth Amendment and Federal Rule of Evidence 606(b), 60 UCLA L. Rev. 262 (2012)....29, 30 Anne Bowen Poulin, Credibility: A Fair Subject for Expert Testimony?, 59 Fla. L. Rev. 991 (2007) Benjamin T. Huebner, Beyond Tanner: an Alternative Framework for Postverdict Juror Testimony, 81 N.Y.U. L. Rev (2006) Developments in the Law Race and the Criminal Process: VII. Racist Juror Misconduct During Deliberations, 101 Harv. L. Rev (1988) Jessica L. West, 12 Racist Men: Post-Verdict Evidence of Juror Bias, 27 Harv. J. Racial & Ethnic Just. 165 (2011)....30, 31 John H. Wigmore, Evidence 1920, (James H. Chadbourn rev., 1978) ix

11 OPINIONS BELOW The opinion of the United States Court of Appeals for the Fourteenth Circuit is unreported but is reproduced on pages of the Record. Similarly, the rulings of the United States District Court for the District of Joralemon are not published but can be found on pages and of the Record. CONSTITUTIONAL AND STATUTORY PROVISIONS The following constitutional and statutory provisions will be affected by the determination of the present case: U.S. CONST. amend. V. U.S. CONST. amend. VI. Fed. R. Evid. 606(b)(2)(A). Fed. R. Evid The full text of each provision appears in the Appendix. STANDARD OF REVIEW This case presents four questions of law, which this Court reviews de novo. Pierce v. Underwood, 487 U.S. 552, 558 (1988). 1

12 STATEMENT OF THE CASE I. Statement of Facts Petitioner, John Habib ( Habib ), was the president of Zodiac Electronics, Incorporated ( Zodiac ) a personal electronics manufacturer in the city of Boerum, Joralemon from 1995 until (R. 1.) In January 2013, Habib ended his employment, and severed all ties with Zodiac and the technology industry because he had lost interest in helping generate profits for Zodiac. (R. 41.) Instead, his main objective had become increasing accessibility to technology in impoverished countries, which required him to travel abroad frequently. (R. 42.) After leaving Zodiac, Habib devoted his efforts to educational projects in developing countries. (R ) Despite Habib s humanitarian aspirations, he is now haunted by the past wrongs of the company where he once worked. In June 2008, Habib proposed that Zodiac begin developing a smart watch, called the Genius Watch. (R. 1, 41.) While Habib was generally in charge of this project, his personal responsibilities were developing the Genius Watch s software and promoting the watch to investors and the press. (R. 42.) Habib put engineer William Roberts ( Roberts ) in charge of the technical aspects of the Watch s development. (R. 41.) In April 2010, Zodiac began experimenting with powering the watch using a thin lithium battery. (R. 1.) Roberts performed two tests in October 2011 and May 2012, both of which revealed issues with the lithium battery s safety. (R ) In the second test, the battery exploded, causing a fire that resulted in the total destruction of a hard drive containing all of the Genius Watch development files. (R. 41.) Around February 2012, Roberts had falsely reported to Habib that his creative team had finally resolved the battery situation. (R. 42.) At that time, Habib was unaware of the serious situation Roberts was referring to and only knew that the battery s Chinese manufacturer was 2

13 charging too high of a price. (R. 42.) What Habib did not know was that during Roberts testing, Roberts had discovered that lithium batteries have a risk of explosion that increases as they are thinned. (R. 1.) As president of Zodiac, Habib s signature was required on most documents. (R. 42.) Given the trust in his subordinates and the large number of documents produced by Zodiac, Habib often signed documents without reading them. (R. 42.) Thus, in June and September 2012 relying on Roberts word that there were no issues Habib signed reports representing to the Consumer Electronic Products Safety Commission ( CEPSC ) that the Genius Watch was safe. (R. 1.) In October 2012, the Genius Watch s first month of sales, Zodiac sold 750,000 watches. (R. 41.) Tragically, the lithium batteries in some of the Genius Watches exploded, causing the deaths of two individuals. (R. 1.) In January 2013, the CEPSC recalled the Genius Watches. (R. 1.) Less than one month later, Roberts entered into an immunity agreement with the United States Attorney s Office. (R. 1.) In exchange for this immunity Roberts testified at trial, blaming Habib for the Genius Watch defects. (R. 1-2.) However, Habib maintained his innocence, stating that had he been present and known about the battery defects, he would have yank[ed] the product from the development pipeline. (R. 42.) II. Statement of Procedural History Based on Roberts deal with the Government, Habib was indicted on March 11, 2013 in the United States District Court for the District of Joralemon. (R. 3.) He was charged with: Murder in the Second Degree (Counts I & II), and Violation of the Consumer Electronics Safety Act (Counts III - V). (R. 2-3.) On August 15, 2013, the district court heard arguments regarding Habib s two motions in limine and later denied both motions. (R. 6, ) On September 27, 2013 a trial took place, and Habib was found guilty on all counts. (R. 26.) After trial, defense 3

14 counsel learned that the jury determined Habib s verdict based on his perceived Muslim faith and filed a motion for a new trial, which the district court also denied. (R , 38.) Habib then timely appealed the district court s decisions to the United States Court of Appeals for the Fourteenth Circuit ( Fourteenth Circuit ). (R. 40.) Trial Court Proceedings A. The Motion to Allow Expert Testimony Regarding Roberts Credibility. Before trial, the district court ordered a psychological evaluation of Roberts to determine whether he was competent to testify. (R. 8.) The court-appointed psychiatrist, Dr. Jacob White ( Dr. White ), after conducting two days of interviews and a battery of tests, found Roberts was competent to testify, but diagnosed him with Reed s disorder. (R. 8, 20.) Reed s disorder is a mental illness characterized by a pervasive pattern of disregard and violation of the rights of others. (R. 21.) This is manifested by a combination of: deceitfulness, repeated lying, impulsivity, irritability, aggressiveness, consistent irresponsibility, and lack of remorse. (R. 21.) In Dr. White s professional opinion, it was doubtful that Roberts could testify truthfully, even under oath, because Reed s disorder made him very unlikely to be truthful in high-pressure situations and when confronted by authority figures. (R. 8, ) Habib moved to introduce Dr. White s expert testimony, which would have included his diagnosis of Roberts and his opinion on how Reed s disorder affected Roberts credibility. (R. 7-8.) The court held that Dr. White could only testify about Roberts diagnosis as well as a general description of the disease. (R. 22.) Thus, the court prevented Dr. White from testifying as to the effect that Reed s disorder had on Roberts credibility. (R. 22.) The court reasoned that other circuits as well as the District of Joralemon had always excluded expert testimony about a witness credibility. (R. 23.) 4

15 B. The Motion to Quash the Government s Subpoena. As part of the pre-trial proceedings, Habib also moved to quash the Government s subpoena for his personal copy of the Genius Watch documents. (R. 13.) At the time the Genius Watch was being created, Habib was the only employee authorized to copy Zodiac s documents. (R. 41.) Habib s copy was the only one in existence since Zodiac s hard drive containing the Genius Watch development files was completely destroyed in the fire caused by Roberts testing. (R. 41.) The district court denied Habib s motion concluding that the collective entity doctrine extends to former employees of a corporation when those former employees are in possession of corporate documents. (R. 24.) C. The Motion for a New Trial due to Jurors Religious Bias. On September 30, 2013, three days after Habib s trial, defense counsel received an unsolicited phone call from Juror #3. (R. 26.) This phone call revealed that the jury determined Habib s guilt solely due to his name and supposed Muslim faith. (R. 29.) Juror #3 felt compelled to inform defense counsel of the pervasive anti-muslim bias that had a significant effect on the jury s verdict. (R. 26.) During deliberations, Juror #5 voted not guilty because she believed the prosecution had not proven its case beyond a reasonable doubt. (R. 26.) After this vote, Jurors #2, #8, and #9 began to aggressively harass Juror #5 with comments such as: [Juror #2:] How can you possibly believe this towel-head? He s clearly out there killing Americans with these watches as some sort of terrorist plot! * * * [Juror #9:] My brother died fighting those bastards overseas and now you want to let one go when we have him in our grasp? You disgust me. * * * [Juror #2:] [T]hese types of people don t deserve to be in this country, and it s our duty to keep them off of our streets, away from our families, so they can t hurt anyone. * * * [Juror #2:] Why are we even listening to you? We know towlie here is guilty. His people do this thing all over the world, and I for one am not letting him get away with it here. 5

16 (R ) In addition, Jurors #8 and #9 suggested that Juror #5 was somehow involved in the Genius Watch explosions and that she should be locked up with Habib. (R. 27.) Immediately after these comments, all twelve jurors sat in silence for five minutes before rendering a guilty verdict. (R. 27.) Juror #3 informed defense counsel that she felt pressured to vote guilty and now feels terrible about how things concluded. (R. 27.) Juror #3 was not promised anything in return for this information and is willing to testify if needed. (R. 27.) Based on this information, Habib moved for a new trial on October 3, (R. 25.) Arguments were held before the district court on October 7, (R. 28.) One week later, the court despite finding the jurors comments to be highly inappropriate held that an evidentiary hearing regarding the validity of the verdict was not permissible under either Federal Rule of Evidence 606(b)(2)(A) or the Sixth Amendment. (R. 37.) Appellate Court Proceedings Habib filed a timely appeal to the Fourteenth Circuit. (R. 40.) In a divided opinion, the Fourteenth Circuit affirmed all four holdings of the district court, concluding that: (1) expert opinion testimony evaluating the credibility of a witness is inadmissible under Federal Rule of Evidence 702; (2) based on the collective entity doctrine, a former employee of a corporation is precluded from asserting his Fifth Amendment privilege against self-incrimination; (3) statements of religious bias made during deliberations do not fall under the Federal Rule of Evidence 606(b)(2)(A) exception for extraneous prejudicial information ; and (4) Habib s Sixth Amendment guarantees were properly protected by the procedural safeguards explained by this Court in Tanner. (R ) On October 30, 2014, this Court granted Habib s Petition for Writ of Certiorari to review each of the issues decided by the lower courts. (R. 52.) 6

17 SUMMARY OF THE ARGUMENT This case is about a criminal defendant whose rights were insufficiently protected by the judicial system when both lower courts failed to implement the necessary safeguards established by the United States Constitution and the Federal Rules of Evidence. This Court should remedy this injustice and remand this case to allow a proper trial to be conducted. In ensuring that Habib receives a fair trial, this Court should explain that: (1) Rule 702 allows an expert to testify regarding the way in which a witness mental disorder affects his credibility; (2) a former employee can invoke his Fifth Amendment privilege against self-incrimination when requested to produce his personal copy of corporate documents; (3) statements of religious bias made during jury deliberations are admissible under Rule 606(b)(2)(A) in determining the validity of a verdict; and (4) juror bias affecting deliberations violates a defendant s Sixth Amendment right to a fair trial by an impartial jury. First, Rule 702 provides that an expert may testify in the form of an opinion if his specialized knowledge will help the trier of fact to understand the evidence or determine a fact at issue. As a matter of law, Rule 702 generally allows expert opinion testimony on the credibility of a witness. Specifically, expert psychiatric testimony regarding the particular effects that a mental disorder has on a witness is helpful to the jury because it will assist them in determining the credibility of that witness. Mental disorders often manifest themselves uniquely in each individual, and lay jurors need expert guidance in order to determine how a disorder affects a person. In this case, Reed s disorder made it unlikely that Roberts could be truthful in a highpressure situation and when confronted by authority figures, such as being questioned at trial. Dr. White s testimony would have helped the jury in assessing exactly how Reed s disorder manifested itself in Roberts and given them the necessary tools to determine Roberts credibility. 7

18 Second, the Fifth Amendment protects a criminal defendant from self-incrimination. While the collective entity doctrine prevents agents acting on behalf of a collective entity from asserting this privilege, this doctrine does not apply to individuals acting in their personal capacity. The modern analysis under this doctrine recognizes that although the contents of a document may not be privileged, the act of producing the document may be. Thus, this Court has explained that the focus is on whether the act of production rather than the nature of the document is testimonial and incriminating. Here, Habib s employment with Zodiac terminated months before the Government issued its subpoena. Since Habib was no longer Zodiac s agent, he had no authority to act on the company s behalf. Thus, Habib was necessarily acting in his personal capacity when complying with the subpoena. Additionally, since the Government needed Habib s copy of the documents to prove their existence, Habib s act of production was inherently testimonial. Third, Rule 606(b)(2)(A) allows a juror to testify about whether extraneous prejudicial information was improperly brought to the jury s attention. Religious bias falls under this exception because a jury that makes its determination based on the defendant s religion has necessarily considered evidence not admitted at trial. Furthermore, this Court s holding in Tanner was never intended to bar juror testimony regarding religious bias since it dealt only with juror incompetence. Finally, allowing juror testimony of religious bias furthers the interests of assuring full and frank deliberations, preventing juror harassment, and preserving the community s trust in the judicial system. In this case, Jurors #2, #8, and #9 vigorously advocated that Habib s supposed Muslim faith made him more likely to have committed the charged crimes. Because Habib s religion was never discussed by either party, the jurors considered evidence not admitted at trial. Allowing Juror #3 to testify and granting a new trial will allow a 8

19 new jury to determine Habib s verdict based on the evidence rather than their personal prejudice. Fourth, the Sixth Amendment guarantees all criminal defendants the right to a fair trial by an impartial jury. A touchstone of this guarantee is a jury capable and willing to decide the case solely on the evidence before it. Juror bias, in particular, threatens this guarantee because it is inconceivable that jurors can liberate themselves from the pernicious taint of their bias. Moreover, the procedural safeguards enumerated by this Court in Tanner may be suitable in providing a defendant with a competent jury, but they are not adequate in providing a defendant with an impartial one. This is because these protections are only effective when there is an outward manifestation of juror misconduct. Here, the comments made during deliberations evidenced a gross deviation from a fair trial by impartial jury. Certain jurors relied solely on their pervasive anti-muslim stereotypes in making their decision. The effect of this bias was apparent when Juror #5 succumbed to the other jurors pressure and changed her vote to guilty without further discussion. Additionally, because these individuals bias was inherently internal, it was impossible to detect such bias through any outward manifestation. 9

20 ARGUMENT I. FEDERAL RULE OF EVIDENCE 702 PERMITS EXPERT PSYCHIATRIC TESTIMONY ON THE CREDIBILITY OF A SPECIFIC WITNESS WHEN A MENTAL DISORDER AFFECTS THAT WITNESS ABILITY TO BE TRUTHFUL. The Fourteenth Circuit erred in holding that an expert opinion s testimony evaluating the credibility of a witness is inadmissible under Federal Rule of Evidence 702. (R. 43.) Rule 702 provides that the expert may testify in the form of an opinion or otherwise if the expert s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue[.] Fed. R. Evid An expert s opinion regarding the credibility of a witness is admissible under this rule for two reasons: (1) as a matter of law, Rule 702 does not prohibit expert opinion testimony on the credibility of a witness; and (2) an expert s opinion regarding the specific effects that a mental disorder has on a witness is helpful to the jury. Thus, this Court should explain that Rule 702 generally allows expert opinion testimony on the credibility of a witness, and furthermore such testimony is helpful to the jury in cases where a witness credibility is affected by a mental disorder. A. As a Matter of Law, Rule 702 Does not Bar Expert Opinion Testimony on the Credibility of a Witness. The Fourteenth Circuit erred in holding that expert opinion testimony regarding the credibility of a witness is inadmissible, as a matter of law, under Rule 702 because it would invade the jury s province of making credibility determinations. (R. 43.) Confronted with the modern Federal Rules of Evidence, this Court has unequivocally ruled against rigid tests in determining the admissibility of expert testimony. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 588 (1993). This Court further emphasized that the inquiry envisioned by Rule 702 is a flexible one. Id. at 594. A rigid standard would be at odds with the liberal thrust of the Federal Rules of Evidence, which generally favor admissibility. Id. at 588. Despite this Court s clear 10

21 indication, a few appellate courts have categorically refused to admit expert opinion testimony on the credibility of a witness. See Anne Bowen Poulin, Credibility: A Fair Subject for Expert Testimony?, 59 Fla. L. Rev. 991, 993 (2007) (referencing the Second and Eleventh Circuits). In support of their rulings, these courts invoke the common-law maxim that an expert witness must not invade the jury s province of determining a witness credibility. See Nimely v. City of New York, 414 F.3d 381, 397 (2d Cir. 2005); United States v. Beasley, 72 F.3d 1518, 1528 (11th Cir. 1996). However, this common-law maxim was not codified in the Federal Rules of Evidence, and the modern rules do not support such a categorical prohibition. See 7 John H. Wigmore, Evidence 1920 (Chadbourn rev. 1978) (criticizing the view that an expert should not usurp a function of the jury in assessing credibility as empty rhetoric ). Moreover, the plain language of Rule 702 favors admissibility rather than exclusion. See, e.g., Fox v. Dannenberg, 906 F.2d 1253, 1256 (8th Cir. 1990) (stating that Rule 702 was intended to function as a broad rule of admissibility ). This is consistent with the general rule that trial courts, in performing their gatekeeping functions, must consider the presumption of admissibility of the Federal Rules of Evidence. Borawick v. Shay, 68 F.3d 597, 610 (2d Cir.1995), cert. denied, 517 U.S (1996). Rule 702 does not limit the topics suitable for expert testimony. Rather, a qualified expert is allowed to testify as to any relevant subject matter or field of knowledge. See Fed. R. Evid Since the plain language of Rule 702 does not preclude expert testimony addressing a witness credibility, and the liberal thrust of the rules generally favors admissibility, such testimony should be admissible. Additionally, when interpreting Rule 702, courts should read it in context with related Federal Rules of Evidence. When Rule 702 is read in conjunction with Rule 405 methods of proving character and Rule 608 a witness character for truthfulness or untruthfulness, it is 11

22 apparent that the Federal Rules of Evidence were intended to allow expert testimony regarding the credibility of a witness. See, e.g., United States v. Shay, 57 F.3d 126, 131 (1st Cir. 1995) (considering Rules 405 and 608 in its interpretation of Rule 702). Rule 608 expressly allows the use of opinion testimony concerning a witness character for truthfulness. Fed. R. Evid. 608(a). According to Rule 608(a), opinion testimony used to prove a witness character for truthfulness is to be applied consistently with Rule 405 s methods. Fed. R. Evid. 608 advisory committee s note. Under Rule 405(a), expert opinion testimony is a valid method of proving character. Fed. R. Evid. 405(a) advisory committee s note (explaining that a witness character can be shown through a range of considerations from the opinion of the employer who has found the man honest to the opinion of the psychiatrist based upon examination and testing ) (emphasis added). Therefore, when Rules 405, 608, and 702 are read together, courts should hold that expert opinion testimony is an admissible method of proving a witness character for truthfulness and thus his credibility. Here, the Fourteenth Circuit erroneously ruled that, as a matter of law, expert opinion testimony regarding the credibility of a witness is inadmissible under Rule 702. (R. 43.) Such a categorical and inflexible rule is incompatible with this Court s decision in Daubert and the liberal thrust of the modern Federal Rules of Evidence. This ruling also disregards the plain language of Rule 702, which poses no limit to the range of topics suitable for expert opinions. Additionally, such a ruling ignores Rules 405 and 608, which affirmatively permit offering expert testimony to establish a witness truthful character. Thus, this Court should reverse the Fourteenth Circuit s decision and rule that, as a matter of law, Rule 702 does not preclude expert testimony on the credibility of a witness. 12

23 B. Expert Psychiatric Testimony Regarding a Mental Disorder s Specific Effects on a Witness is Admissible Because it will Assist the Jury in Determining the Credibility of that Witness. Contrary to the Fourteenth Circuit s finding, Dr. White s testimony would have been helpful to the jury in understanding how to assess Roberts credibility, and thus was admissible in its entirety. To be admissible under Rule 702, the proposed expert testimony must (1) be offered by a witness qualified to testify as an expert by knowledge, skill, experience, training, or education; (2) concern scientific, technical, or other specialized knowledge; and (3) assist the trier of fact to understand the evidence or to determine a fact in issue. Fed. R. Evid. 702; Shay, 57 F.3d at 132 (citing Daubert, 509 U.S. at ). Where, like here, an expert s qualifications and the specialized nature of his opinions are not in dispute, the first two elements are satisfied, and the only requirement in question is whether the proposed testimony will help the jury. United States v. Gonzalez-Maldonado, 115 F.3d 9, 16 (1st Cir. 1997). An expert s opinion is helpful if the expert draws on some specialized skill, knowledge, or experience to formulate his opinion. United States v. Benson, 941 F.2d 598, 604 (7th Cir. 1991). The fundamental question is whether a lay juror would be qualified to decide a particular issue without receiving insight from someone having specialized knowledge. Shay, 57 F.3d at 132. That is, to be helpful under Rule 702, the opinion must fall within the scope of the expert s specialized knowledge and relate to an issue that a lay juror could not evaluate without guidance. Moreover, courts should resolve doubts regarding the usefulness of an expert s testimony in favor of admissibility. Arcoren v. United States, 929 F.2d 1235, (8th Cir. 1991). In reviewing the case law after Daubert, the rejection of expert testimony is the exception rather than the rule. Fed. R. Evid. 702 advisory committee s note. The general principle is that the jury should be informed of all matters affecting a witness credibility because it will aid in their 13

24 determination of the truth. United States v. Partin, 493 F.2d 750, 762 (5th Cir. 1974). In particular, Rule 702 is broad enough to embrace the admission of psychiatric and psychological testimony regarding mental aberrations in human behavior when such knowledge is relevant to the determination of a material issue of fact. Arcoren, 929 F.2d at In applying Rule 702 to cases involving a mental disorder, appellate courts have allowed expert testimony regarding the credibility of a witness when the expert s opinion was related to genuinely specialized knowledge in the fields of psychology and psychiatry. See, e.g., Shay, 57 F.3d at 126; United States v. Hall, 93 F.3d 1337 (7th Cir. 1996), cert. denied, 527 U.S (1999). This is because a mental disorder often manifests itself in counter-intuitive behavior unique to the individual, and lay jurors are unlikely to be aware of the disorder s existence, symptoms, and consequences. Hall, 93 F.3d at Thus, in the presence of psychological disorders, expert testimony is particularly important because it serves to shatter common myths about an individual s behavior. United States v. Moore, 786 F.2d 1308, 1312 (5th Cir. 1986). For example, in Shay the Court of Appeals for the First Circuit reversed a district court s decision to exclude expert testimony on Munchausen s Disease, a mental disorder characterized as an extreme form of pathological lying. 57 F.3d at 126. In proving its case, the government relied primarily on several incriminating statements that the defendant made to the police, the media, and fellow inmates. Id. at 128. The court noted that the jury was not qualified to determine without the assistance of a trained professional the particular issue of whether the defendant may have made false statements against his own interests because he suffered from a mental disorder. Id. at 133. See also Hall, 93 F.3d at 1337 (reversing a district court s ruling that limited the scope of a psychiatrist s testimony regarding the defendant s mental condition). 14

25 Similarly, other appellate courts that have refused the admission of expert testimony regarding credibility have done so because in those cases the expert s opinion was not related to a pathological mental condition. See, e.g., United States v. Adams, 271 F.3d 1236 (10th Cir. 2001); United States v. Vest, 116 F.3d 1179 (7th Cir. 1997). For instance, in Adams, the Court of Appeals for the Tenth Circuit affirmed the exclusion of a psychologist s testimony. 271 F.3d at But in its holding, the court specifically noted that the defendant did not claim to have a personality disorder, thus his situation was distinguishable from that in Shay. Id. See also Vest, 116 F.3d at 1179 (affirming the exclusion of expert testimony regarding the credibility of several witnesses, none of whom suffered from a mental condition); United States v. Hill, 749 F.3d 1250 (10th Cir. 2014) (affirming the denial of expert testimony regarding the credibility of individuals who used faith to validate their statements). In this case, the Fourteenth Circuit erroneously concluded that the excluded portion of Dr. White s testimony would not have been helpful because it would have simply instructed the jury what conclusion to reach[.] (R. 43.) This holding largely ignored the specific facts of Habib s case. Like in Shaw, here Roberts suffered from a mental condition that significantly impacted his ability to be truthful. (R. 21.) Nonetheless, Dr. White s testimony was limited, leaving the jurors without the necessary guidance to accurately assess Roberts credibility. Dr. White was only permitted to explain the characteristics of an ordinary person afflicted by the disease, and he was prohibited from testifying about the specific effects Reed s disorder has on Roberts. (R. 23.) Reed s disorder can manifest itself in a variety of ways including a propensity to lie, impulsivity, irritability, and aggressiveness. (R. 21.) It took Dr. White, a trained expert in psychiatry, two days of interviews and a battery of tests in order to fully diagnose Roberts condition. (R. 20.) Without the proper insight from Dr. White, this jury of laymen was not 15

26 equipped to evaluate which of the many symptoms typical of Reed s disorder actually affected Roberts testimony. The excluded portion of Dr. White s testimony would have helped the jury in assessing exactly how Reed s disorder manifests itself in Roberts: making him likely to be untruthful in high-pressure situations and when confronted by authority figures. (R ) In the course of Habib s prosecution, Roberts was subjected to several high-pressure situations, including being questioned by the police and having to testify at trial. (R. 40.) Dr. White s testimony would have given the jurors both a reason to reject the common myths about Roberts behavior and the tools to determine the credibility of Roberts testimony. Therefore, this Court should reverse the decision of the Fourteenth Circuit and hold that, by giving the jury a reason to doubt Roberts credibility, Dr. White s expert opinion was exactly the type of helpful testimony admissible under Rule 702. II. A FORMER EMPLOYEE MAY ASSERT HIS FIFTH AMENDMENT PRIVILEGE TO THE TESTIMONIAL ACT OF PRODUCING A PERSONAL COPY OF CORPORATE DOCUMENTS BECAUSE THE COLLECTIVE ENTITY DOCTRINE IS LIMITED TO INDIVIDUALS ACTING IN A REPRESENTATIVE CAPACITY. The Fourteenth Circuit mistakenly held that a former employee of a corporation may not assert his Fifth Amendment privilege against self-incrimination to the act of producing corporate documents. (R. 44.) The Fifth Amendment provides that no person shall be compelled in any criminal case to be a witness against himself[.] U.S. CONST. amend. V. This privilege has been construed to protect an individual from compelled production of personal records that might incriminate him. See Boyd v. United States, 116 U.S. 616, (1886). It is also wellestablished law that the act of producing documents is in itself a communication, separate and distinct from the information within the documents, that is protected by the Fifth Amendment. Fisher v. United States, 425 U.S. 391, 410 (1976) (developing the modern act of production doctrine ). See also United States v. Doe, 465 U.S. 605, 612 (1984). However, the Fifth 16

27 Amendment privilege does not extend to corporations or their agents. Hale v. Henkel, 201 U.S. 43, (1906) (articulating the collective entity doctrine ). The Fourteenth Circuit erroneously expanded the collective entity doctrine to apply to former employees, thus depriving individuals acting in their personal, rather than representative, capacity of their Fifth Amendment protections. This Court should allow Habib to invoke his Fifth Amendment privilege against self-incrimination because (1) the collective entity doctrine does not apply to former employees; and (2) compelling Habib to produce his personal copy of the Genius Watch documents necessarily forced him to provide testimony against his own interests. A. The Collective Entity Doctrine does not Apply to Former Employees Because, Under this Court s Modern Rulings, its Analysis Centers on the Act of Production and its Application is Limited to Individuals Acting as Agents of the Collective Entity. The Fourteenth Circuit erred in ruling that the collective entity doctrine should apply to former employees of a corporation for two reasons: (1) the inquiry of the collective entity doctrine no longer focuses on the content of the documents; and (2) the doctrine should not be expanded to individuals who are not in an agency relationship with the collective entity. 1. The modern analysis of the collective entity doctrine focuses on the act of production rather than the nature of the documents. The Fourteenth Circuit incorrectly reasoned that [i]t is not the employment relationship that dictates the boundaries of the collective entity doctrine, but the nature of the documents at issue. (R ) During its early stages, the collective entity doctrine used to place great emphasis on whether the records subpoenaed were personal or corporate in character. See, e.g., Wheeler v. United States, 226 U.S. 478, 490 (1913). However, almost forty years ago this Court acknowledged the inherent flaw of such emphasis. Fisher, 425 U.S. at 410. In Fisher, this Court explained that the act of producing evidence in response to a subpoena has communicative 17

28 aspects of its own, wholly aside from the contents of the papers produced. Id. (emphasis added). Thus, the appropriate inquiry should not focus on the nature of the documents, but rather on whether the act of production has testimonial aspects and incriminating effects. Id. Re-evaluating the collective entity doctrine in light of Fisher, this Court has conclusively stated that [a]lthough the contents of a document may not be privileged, the act of producing the documents may be. Doe, 465 U.S. at 612 (emphasis added). Accordingly, an individual is entitled to claim an act of production privilege even if the contents of the subpoenaed documents are not privileged. The Fourteenth Circuit mistakenly concluded that the collective entity doctrine applies in this case due to the corporate nature of the subpoenaed documents. (R ) In reaching its decision, the Fourteenth Circuit ignored this Court s efforts to re-direct the Fifth Amendment analysis to focus on the act of production. This modern focus establishes a rule respectful of an individual s Constitutional protections. Therefore, the Fourteenth Circuit erred when it departed from this Court s precedent and focused its inquiry on the corporate nature of Habib s personal copy of Zodiac s documents. (R ) This Court should reverse that decision and once more reaffirm that the testimonial nature of the act of production rather than the nature of the documents determines whether an individual can assert his Fifth Amendment privilege. 2. This Court s ruling in Braswell should not be expanded to include former employees because they cannot act in a representative capacity. The Fourteenth Circuit mistakenly stretched the confines of the collective entity doctrine by unreasonably extending this Court s prior decisions. (R ) In Braswell v. United States, this Court addressed the question of whether a current corporate employee could claim his Fifth Amendment privilege to refuse production of corporate documents. 487 U.S. 99, 101 (1988). This Court made clear that [t]he agency rationale underlying the collective entity [doctrine] is 18

29 still valid under the modern Fifth Amendment analysis, which focuses on the act of production. Id. at 109. The collective entity doctrine rests squarely on agency principles. See id. at 110. Because corporations can only act through their agents, a custodian s act of production is not deemed a personal act, but rather an act of the corporation. Id. See also United States v. White, 322 U.S. 694, 699 (1944) (stating agents assume the rights, duties, and privileges of their artificial entity). Thus, agents acting on behalf of a corporation cannot assert a Fifth Amendment privilege because corporations possess no such privilege. Braswell, 487 U.S. at 110. Based on these principles, this Court s focus in Braswell was on the fact that the individual subpoenaed held the corporate records in a representative rather than a personal capacity[.] Id. Conversely, when an individual acts in his personal capacity, the agency rationale underlying the Braswell decision is inapplicable. Extending the rule in Braswell to former employees would create a paradox where former employees act as corporate agents, even though their employment relationship has ended. In re Three Grand Jury Subpoenas Duces Tecum Dated Jan. 29, 1999, 191 F.3d 173, 179 (2d Cir. 1999). Such an extension would be illogical because without special circumstances such as severance agreements or non-competition clauses that give rise to a continuing agency relationship a former employee cannot continue to act on the corporation s behalf. Id. at 180. And because a former employee cannot act on behalf of a corporation, he necessarily acts only in an individual capacity. In re Grand Jury Subpoenas Duces Tecum Dated June 13, 1983 & June 22, 1983, 722 F.2d 981, (2d Cir. 1983). Thus, a former employee s act of producing corporate documents in response to a subpoena is performed in his personal capacity and protected by the Fifth Amendment. In this case, the Fourteenth Circuit improperly applied the collective entity doctrine to Habib, who was no longer an agent of Zodiac. (R. 44.) At the time the subpoena was served, July 19

30 22, 2013, Habib had no formal relationship with Zodiac. (R. 17, 23.) His employment had terminated in January 2013, approximately seven months before the Government issued its subpoena. (R. 16, 23.) Moreover, there were no severance agreements, non-competition clauses, or any other post-employment covenants between Habib and Zodiac that could be said to create a continuing agency relationship. (R ) Because Habib had no authority to act on Zodiac s behalf, the act of producing the subpoenaed documents can only be viewed as his personal act. Thus, this Court should reverse the Fourteenth Circuit s decision and hold that the collective entity doctrine does not apply to former employees who are no longer in an agency relationship with the collective entity. B. Habib s Act of Producing Corporate Records is Sufficiently Testimonial to Support Invoking His Fifth Amendment Privilege Against Self-Incrimination. The Fourteenth Circuit ended its analysis after it incorrectly held that the collective entity doctrine applied in Habib s situation. (R. 45.) However, having established that this doctrine did not apply to Habib as a former employee, the analysis must further assess whether Habib s act of production was testimonial and incriminating. Fisher, 425 U.S. at 410. An act of production is testimonial if it implicitly communicate[s] statements of fact. United States v. Hubbell, 530 U.S. 27, 36 (2000). This Court has already explained that an act of production is testimonial if, through that act, the witness would be forced to admit that the papers existed, were in his possession or control, and were authentic. Id. Here, Habib s act of producing his personal copy of the Genius Watch documents was both testimonial and prejudicial. While conducting tests on the Genius Watch, Roberts caused a fire that resulted in the total destruction of a hard drive containing all of the Genius Watch development files. (R. 41.) Because of Roberts accident, Habib was in possession of the only copy of these files still in existence. (R. 13.) Thus, Habib s act of producing these documents 20

31 was the only way to establish that they existed, were in his possession, and were authentic. Under these circumstances, this Court should hold that Habib s act of production was sufficiently testimonial and allow him to invoke his Fifth Amendment privilege. III. IN ASSESSING THE VALIDITY OF A VERDICT, STATEMENTS MADE DURING DELIBERATIONS WHICH REVEAL A JUROR S RELIGIOUS BIAS ARE ADMISSIBLE UNDER THE EXTRANEOUS PREJUDICIAL INFORMATION EXCEPTION OF FEDERAL RULE OF EVIDENCE 606(b)(2)(A). The Fourteenth Circuit erred in prohibiting juror testimony that would have revealed statements of religious bias made by jurors during deliberations. (R ) In general, Federal Rule of Evidence 606 prohibits juror testimony regarding the validity of a verdict. Fed. R. Evid. 606(b). However, this rule also provides an exception that a juror may testify about whether extraneous prejudicial information was improperly brought to the jury s attention[.] Fed. R. Evid. 606(b)(2)(A). In assessing the validity of a verdict, a court should consider statements of religious bias expressed by jurors during deliberations for three reasons: (1) these statements are the exact sort of extraneous prejudicial information Rule 606 s exception was intended to allow; (2) this Court s holding in Tanner was never intended to bar juror testimony regarding religious bias; and (3) the interests this Court intended to protect in Tanner are furthered by allowing juror testimony of religious bias. Therefore this Court should explain that testimony regarding statements of religious bias made during deliberations is admissible under Rule 606(b)(2)(A). A. The Extraneous Prejudicial Information Exception Under Rule 606(b)(2)(A) Allows Courts to Consider Testimony that Jurors Obtained and Considered Evidence not Admitted at Trial, Such as a Defendant s Religious Beliefs. The Fourteenth Circuit erred because statements of religious bias are the type of extraneous prejudicial information Rule 606 s exception was intended to allow. Rule 606 attempts to balance the defendant s right to a fair trial, free of bias, with the public interest of 21