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U.S. v. TAYLOR

October 28, 1999

UNITED STATES OF AMERICA
v.
SHAABRI TAYLOR, A/K/A "ERIC JOHNSON".



The opinion of the court was delivered by: Orlofsky, District Judge.

OPINION

This case requires this Court to determine whether the Government can cure the unexpected failure of its principal trial witnesses to identify the defendant by offering expert testimony which was never disclosed to defense counsel prior to trial. In addition, if the Court precludes the Government from offering this expert testimony, the Government seeks to rescind an agreement to use a post-arrest statement made by the Defendant for impeachment purposes only, and introduce the statement in its case-in-chief. More specifically, before me is the motion of the United States to admit into evidence two fingerprint cards and the related expert testimony of a police officer who was present at the time the fingerprints were taken and who observed the fingerprinting process. The police officer is expected to offer expert testimony that the fingerprints in each case are those of the Defendant. The Government has made this motion in the middle of trial as a result of the inability of the two Newark police officers who made the arrest to identify the Defendant, Shaabri Taylor, a/k/a "Eric Johnson," as the individual who possessed the weapon which is the subject of the indictment in this case.*fn1 The Government also suggests that if this Court denies its motion to admit the fingerprint cards and the expert testimony, it will recant its agreement with the Defendant's counsel, Assistant Federal Public Defender, Lisa C. Evans, Esq., and seek to introduce a statement made by the Defendant to an agent of the Bureau of Alcohol, Tobacco, and Firearms in its case-in-chief.

Counsel for the Defendant contends that the admission of the fingerprint cards and expert testimony violate Rule 16 of the Federal Rules of Criminal Procedure, as well as a Memorandum Opinion and Order, filed by this Court on November 12, 1998, that required the Government to "provide Taylor with any expert reports at least one week before trial is scheduled to commence." United States v. Taylor, No. 98-338 at 7 (D.N.J. Nov. 12, 1998). Defendant's counsel further contends that, because she detrimentally relied on the Government's promise to use the Defendant's statement on cross-examination for purposes of impeachment, the Government should be precluded from introducing the statement in its case-in-chief. For the reasons set forth below, I shall deny the admission of the expert testimony, pursuant to Federal Rule of Criminal Procedure 16(d)(2), and deny the admission of the fingerprint cards, which would be meaningless to the jury without the testimony of an expert witness to explain them. Furthermore, because I find that the Defendant detrimentally relied on the Government's promise only to use the Defendant's statement during cross-examination for impeachment purposes should the Defendant choose to testify, I shall preclude the admission of the Defendant's statement in the Government's case-in-chief.

  1. The Motion to Admit the Fingerprint Cards and Expert
    Testimony

On August 24, 1998, the Defendant moved before this Court to compel the Government to provide, among other things, written summaries of the testimony of any experts it intended to call at trial. See Notice of Motion (filed Aug. 24, 1998). On November 12, 1998, I granted the motion, ordering that "[a]t least one week before trial is scheduled to commence, the Government will provide Taylor with a written summary of the testimony, qualifications, opinions of any expert witnesses who may testify for the Government at trial. . . ." See United States v. Taylor, No. 98-338 (D.N.J. Nov. 12, 1998).

Rule 16(a)(1)(E) of the Federal Rules of Criminal Procedure provides, in relevant part:

  At the defendant's request, the government shall
  disclose to the defendant a written summary of
  testimony that the government intends to use under
  Rules 702, 703, or 705 of the Federal Rules of
  Evidence during its case-in-chief. . . . The summary
  provided under this subdivision shall describe the
  witnesses' opinions, the bases and the reasons for
  those opinions, and the witnesses' qualifications.

Fed.R.Crim.P. 16(a)(1)(E). The Advisory Committee Notes to Rule 16(a)(1)(E) observe that:

  The amendment is intended to minimize surprise that
  often results from unexpected expert testimony,
  reduce the need for continuances, and to provide the
  opponent with a fair opportunity to test the merit of
  the expert's testimony through focused
  cross-examination.

Id. (1993 advisory committee's notes); see also United States v. Richmond, 153 F.R.D. 7, 8 (D.Mass. 1994). Rule 16 further provides:

  If at any time during the course of the proceedings
  it is brought to the attention of the court that a
  party has failed to comply with this rule, the court
  may order such party to permit the discovery or
  inspection, grant a continuance, or prohibit the
  party from introducing evidence not disclosed, or it
  may enter such other order as it deems just under the
  circumstances.

Fed.R.Crim.P. 16(d)(2).

At oral argument on its motion, the Government contended that its motion does not violate my previous Order or Rule 16. Specifically, the Government argues that it could not have disclosed to the Defendant its intention to present expert testimony because it first became aware of the need to present expert testimony relating to the fingerprint cards after its first witness, Detective Barron, testified on October 26, 1999.

However the Government fashions the argument, at the end of the day, it is seeking to circumvent the language and spirit of Rule 16. The Rule necessarily requires the Government to disclose, through a written summary, all of the expert testimony it "intends to use." Fed. R.Crim.P. 16(a)(1)(E). In this case, the Government is essentially arguing that because it never intended to use expert testimony regarding the fingerprint cards, by offering this testimony in the middle of the trial, it has not violated Rule 16. The plain language of the Rule, however, clearly refutes ...


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