EVIDENCE
by Daisy Hurst Floyd"
I.
II.
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .•
ApPLICATION OF DAUBERT . . . . . . • . . . . . . . . . . . . . . . . . . . . . . . .
A.
B.
Rushing v. Kansas City Southern Railway Co.
Polygraph Evidence: Gibbs v. Gibbs
III. HYPNOTICALLY-REFRESHED TESTIMONY: MERsCH V. DALLAS ..
IV. THE ATTORNEY-CLIENT PRIVILEGE: NGUYEN V. exCEL
CORP. . . . . . . . . . • . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A. Waiver ofAttorney-Client Privilege
B. Deposition ofCounselor ofExecutives . . . . . . . . . . . . . . . ..
C. Scope ofDeposition Inquiry
THE FEDERAL INSANITY DEFENSE: UNITED STATES V. DIXON
V.
VI. CONCLUSION
801
801
801
806
808
811
812
813
814
816
821
I. INTRODUCTION
During the survey period, the Fifth Circuit dealt with several problem
areas of evidence law. Not surprisingly, the court was once again called on
to consider the application of the United States Supreme Court's decision in
Daubert v. Me"ill Dow Pharmaceuticals, Inc. I The Fifth Circuit also decided
cases that raised interesting issues regarding the admissibility ofhypnoticallyrefreshed testimony and waiver ofthe attorney-client privilege.2 Additionally,
the court settled several evidentiary issues raised by the federal insanity
defense that had not previously been decided by the Fifth Circuit. 3
II. ApPLICATION OF DA UBERT
A. Rushing v. Kansas City Southern Railway Co.
The court dealt with Daubert issues when deciding Rushing v. Kansas
City Southern Railway Co. 4 The court in Rushing reviewed a grant of
• Associate Dean and Professor of Law, Texas Tech University School of Law. B.A., Emory
University, 1977; M.A., 1977; J.D., University ofGeorgia, 1980.
1. S09 U.S. S79, S79 (1993). Two noteworthy cases in which the Fifth Circuit discussed Daubert
are Gibbs". Gibbs, 210 F.3d 491 (Sth Cir. Apr. 2000), and Rushing". Konstu CltySouthem Railway Co.,
18S F.3d 496 (Sth Cir. Aug. 1999).
2. Mersch v. Dallas, 207 FJd 732 (Sth Cir. Mar. 2000); Nguyen v. Excel Corp., 197 F.3d 200
(Sth Cir. Dec. 1999).
3. United States v. Dixon, 18S F.3d 393 (Sth Cir. Aug. 1999).
4. 18SF.3datS06-o7.
801
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summary judgment in favor of the defendant railroad.s The trial court had
used an affidavit prepared by the defendant's expert in finding that the
defendant should be granted summary judgment.6 The plaintiffs argued that
the expert's testimony did not satisfy the standard for admission under Federal
Rule of Evidence 702 and Daubert, and therefore should not have been
considered to support the railroad's motion for summary judgment.7
The plaintiffs, Willard and Patricia Rushing, brought a state law nuisance
action against Kansas City Southern Railway Company, alleging that the
railroad's switching operations located near their property produced excessive
noise and vibrations, causing both physical and property damage. 8 The
railroad relied on a preemption argument as an afTmnative defense, asserting
that the federal Noise Control Act9 and the Federal Rail Safety Act of 1970 10
preempted the state law nuisance claim. ll In support of a motion for partial
summary judgment, the railroad offered an affidavit of a forensic audiologist
who had measured sound emissions from several points on the plaintiffs'
property and had concluded that the railroad was within the noise limits
established by federallaw. 12 The district court granted the railroad's motion
for summary judgment.13 In reviewing de novo the district court's summary
judgment ruling,14 the Fifth Circuit looked first to the plaintiffs' argument that
the affidavit of the railroad's expert had been admitted in violation of
Daubert. IS
In Daubert, the United States Supreme Court established the process for
determining whether a proffer of scientific evidence meets the standards for
admissibility under Federal Rule of Evidence 702. 16 Rule 702 states: aIf
scientific, technical or other specialized knowledge will assist the trier of fact
to understand the evidence or to determine a fact in issue, a witness qualified
as an expert by knowledge, skill, experience, training, or education may
testify thereto in the form of an opinion or otherwise."17 Before the Court
decided Daubert, most federal, and many state, courts used the aFrye
S. ld. at 502.
6. ld. at 504.
7. ld. at SOS-oS (discussing FED. R. EVID. 702; Daubert v. Merrill Dow Phanns., Inc., 509 U.S.
579 (1993».
S. ld. at 502.
9.
10.
11.
12.
13.
14.
standard.
IS.
(1993».
16.
17.
42 U.S.C. §§ 4901-491S (1994 &; Supp. IV 1995).
49 U.S.C. §§ 20101-20153 (1994 &; Supp. IV 1995).
Rushing, ISS F.3d at 502.
ld. at 503.
ld. at 502.
An appellate court reviews the admission of expert testimony on an abuse of discretion
Moore v. Ashland Chern., Inc., 151 F.3d 269, 274 (5th Cir. 1995) (en bane).
Rushing, ISS F.3d at 504-06 (citing Daubert v. Merrill Dow Phanns., Inc., 509 U.S. 579
509 U.S. at SSS.
fED. R. EVID. 702.
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standard" for detennining the admissibility of scientific expert testimony. 18
The Frye standard was developed pursuant to a 1923 decision of the Court of
Appeals for the District of Columbia, in which the court held that expert
testimony involving scientific techniques is admissible only if the technique
has been "generally accepted" as reliable in the appropriate scientific
community}9 In Daubert, the court held that the Frye test had been
superseded by the adoption of the Federal Rules of Evidence, specifically
Rule 702. 20 Therefore, "general acceptance" was no longer the prevailing
standard in federal courts for admitting scientific testimony.21 Instead, the
Court held that trial judges should review multiple criteria in deciding whether
to admit proffered testimony under Rule 702. 22
According to the Court's decision in Daubert, the language of Rule 702
requires that the evidence be both reliable, based on the requirement of
"scientific knowledge, and relevant, based on the requirement that the
evidence will assist the trier offact.23 Therefore, the trial court may examine
certain factors in detennining admissibility, although these factors do not "set
out a definitive checklist or test."24 These factors include: (1) whether the
particular technique can be (or has been) tested, (2) whether the theory or
technique has been subjected to peer review and publication,25 and (3) whether
the theory or technique has obtained general acceptance within the relevant
scientific community.26
The plaintiffs in Rushing claimed that the testing method the expert used
had not been shown to be reliable, arguing that the trial court failed to "make
findings such as the acceptance of the technique and its potential rate of
error," as required by Daubert.27 The railroad argued that such findings were
not necessary because the affidavit showed that the expert had followed the
techniques established for regulatory compliance with the Noise Control
Act.28 The Fifth Circuit agreed, and held that when applicable law mandates
the use of a particular test, the reliability of the test should be presumed
D
18.
19.
20.
Frye v. United States, 293F. 1013, 1014 (D.C. Cir. 1923).
[d.
Daubert, 509 U.S. at 589.
21.
[d.
22. [d.
23. [d. at 592.
24. [d. at 593.
25. [d. Publication is not an absolute requirement, however. Jd. Acc:ording to the Court, "[t)he
fact of publication (or lack thereot) in a peer reviewed journal thus will be a relevant, though not
dispositive, consideration in assessing the scientific validity of a particular technique or methodology on
which an opinion is based." [d.
26. [d. at 593-95. The difference between this use of "general acceptance" and the use in Frye is
that under Daubert it is one factor to which the trial judge may refer, but it is not a requirement for
admission. [d. at 594.
27. Rushing v. Kansas City S. Ry. Co., 185 F.3d 496,507 (Sth Cir. Aug. 1999).
28. [d. at 504.
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irrebuttably.29 According to the court, "[a]ny other rule would place the
testimony's proponent in the untenable position of being unable to prove
compliance with applicable law because he could not introduce the results of
the test mandated by that same law. "30 The court went on to note that the
expert's evidence could be challenged on the basis that he did not comply
with the applicable law, and, that if he used an alternative technique, the
alternative was reliable. 31 However, neither ofthese challenges to the expert's
affidavit had been raised below.32
The court next examined a challenge to the expert's qualifications to
perfonn the tests, this time reviewing for plain error. 33 The plaintiffs argued
that the expert's affidavit failed to show sufficient experience in perfonning
outdoor environmental measurements of railroad sounds. The court rejected
this argument, noting that it evinced a "pre-Daubert sensibility."34 The court
held that "[a]s long as some reasonable indication ofqualifications is adduced,
the court may admit the evidence without abdicating its gate-keeping function.
After that, qualifications become an issue for the trier of fact rather than for
the court in its gate-keeping capacity. "3S The court reviewed the expert's
qualifications and held that the trial court did not err in accepting the affidavit
based on the expert's credentials.36 Although the expert had "limited hands-on
experience with the precise measurements he took," his other qualifications
and experience, along with evidence that his expert testimony had been
admitted in a number ofother trials, qualified him as an expert under Rule 702
and Daubert. 3?
In a related issue, the court reviewed the plaintiffs' proffered testimony
that the noise, on the night that it was measured by the railroad's expert, was
not typical of what they heard from the switching yard. 38 Plaintiffs had
offered this evidence below to create a genuine issue of material fact on the
issue of whether the noise at the railroad yard was in compliance with the
29.
Jd. at 507.
Jd.
Jd.
Jd.
Jd. Although nonnally the review would be for abuse of disaetion, t'le court used a plain error
standard because it found that the Rushings had failed to preserve their objection to the admissibility of
the expert's affidavit for lack ofqualifications under Rule 702. Jd. at 506. The plain error review pennits
reversal ·only when [the court] find[s] an error that is clear and obvious under current law, that affects the
defendant's substantial rights, and that seriously would affect the fairness, integrity or public reputation
ofjudicial proceedings if left uncorrected.· Jd.
34. Jd. at 507 (quoting Watkins v. Telsmith, Inc., 121 F.3d 984, 992 (5th Cir. 1997».
35. Jd.
36. Jd.
37. Jd. The expert was licensed in audiology in several states, held a masters and Ph.D. in
audiology, and was experienced in teaching and practicing. [d. He had been a member or chair oCa
number of committees related to audiology, had published extensively, and had twenty-nine years of
experience in conducting sound level measurements in other contexts. [d.
38. Jd. at 511.
30.
31.
32.
33.
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Noise Control ACt. 39 The evidence was offered under Federal Rule 701,
which allows lay witnesses to offer opinions that are based on the witness's
perceptions and are helpful to a clear understanding ofthe issue. 40 The district
court, by finding that this evidence did not prevent the grant of summary
judgment for the railroad, either rejected the evidence as inadmissible or
found that it did not raise a genuine issue ofmaterial fact. 41 The Fifth Circuit
held that the district court erred, whatever the basis for its decision.42 Instead,
the plaintiffs' opinions that the noise on the night that the measurements were
taken was not typical were admissible as "a prototypical example of the type
of evidence contemplated by the adoption ofRule 701."43 The court held that
the plaintiffs were both qualified to make the assessment that the noise on the
night of the measurement was atypical and that doing so raised a genuine
issue of material fact as to whether the noise at defendant's switching yard
was in compliance with the Noise Control Act. 44
The railroad had argued that its expert's opinion could not be countered
by lay opinions, but rather, that the expert's opinion must be countered by
another expert. 4' The court rejected that argument, noting that the proffered
lay opinion did not go to the issue ofwhether testing techniques had complied
with the Noise Control Act.46 Instead, the lay opinion testimony was offered
to show that the measurements taken by the defendant's expert were not
representative ofthe normal level of noise emitted by the railroad's switching
operations.47 The court also rejected the defendant's argument that the
Rushing's opinions were "too vague and self-serving" to raise a genuine issue
ofmaterial fact. 48 The court noted that they offered specific testimony that the
noise on the night of the measurement was atypical and "even proffered
potential explanations, based on their personal observations, for why it was
quieter than usual."49 The plaintiffs' opinions were therefore sufficient to
counter the expert testimony of the defendant for purposes of creating a
genuine issue of material fact, and warranted reversal of the summary
judgment entered in favor of the railroad. so
39. [d.
40. [d. at 512 &: n.22 (citing FED. R. EVID. 701).
41. [d. atSl2.
42. [d.
43. [d. at 512 n.23.
44. [d. at S13.
45. [d. The Rushings had offered the testimony oftheir own expert, but it was not considered by
the district court because it was untimely. [d. The Fifth Circuit upheld the lower court's rejection of the
plaintiffs' expert, deferring to the trial court's case management authority under Federal Rule of Civil
Procedure 16. [d. (citing FED. R. CIV. P. 16).
46.
47.
48.
49.
SO.
[d.
[d.
[d.
[d.
[d. at S18. Judge King dissented on this issue, stating that the Noise Control Act did not
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B. Polygraph Evidence: Gibbs v. Gibbs
In another case involving the application of the Daubert analysis, the
Fifth Circuit gave surprisingly scant discussion to upholding a district court's
admission of polygraph evidence.sl Gibbs v. Gibbs involved an ERISA clai.m
for insurance benefits brought by the widow of the insured. 52 The plaintiff
was under investigation for hiring someone to murder her husband, and the
investigation led to the denial' of insurance benefits. S3 Shortly before the trial
ofthe case, the plaintiff underwent two polygraph examinations.54 The first
generated favorable results for the plaintiff, but the second, conducted by an
examiner for the Texas Department of Public Safety, raised doubts about the
plaintiff's truthfulness. 55 The district court relied on the results of the
polygraph examination in awarding attorneys' fees to the defendant, which led
to the consideration on appeal ofthe admissibility ofthe polygraph results. 56
The court held that the admissibility of polygraph examinations should
be determined under Daubert's three criteria, which it characterized as: (1)
the scientific validity of the method, (2) the extent to which the trier of fact
will be assisted in understanding the evidence and determining the fact at
issue, and (3) whether the evidence will have a prejudicial effect which is not
outweighed by its probative value. S7 In a single paragraph of analysis, the
court found that the district court had properly evaluated the evidence
according to the Daubert criteria, based on the testimony of the polygraph
examiner "who testified in detail regarding the factors and analysis involved
in the examination process at issue. "58 Therefore, the court upheld the
consideration ofthe evidence of the plaintiff's polygraph examination.59
This decision and the brevity of the court's discussion of the polygraph
evidence are surprising given the amount of attention paid by the federal
require that the mcasuremenls taken to determine compliance be "representative" or "typical." Id. at 51819 (King, J., dissenting). Therefore, she did not agree that the plaintiffs' testimony was sufficient to create
a genuine issue of material fact on the nuisance claim. Id. (King, J., dissenting).
51.
52.
Gibbs v. Gibbs, 210 F.3d 491 (5th Cir. Apr. 2000).
Id. at 496.
53. Id.
54. Id. at 499.
55. Id.
56. Id. at 500. The district court found that the insurance company had failed to prove by a
preponderance of the evidence that the plaintiffwas involved in her husband's death and therefore held
that she was entitled to the insurance proceeds. Id. However, it held that attorneys' fees should be
awarded to the defendant because the plaintiffhad filed the lawsuit prematurely "at a time when she was
under suspicion, and when there was 'absolutely no basis for believing that [the defendant] had acted in
bad faith.'" Id. The Fifth Circuit reversed the award of attorneys' fees, even though it affirmed the
admission of the polygraph evidence. Id.
57. Jd.
58. Id.
59. Id.
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courts to the debate surrounding the reliability of polygraph evidence. 6O
Before the United States Supreme Court's decision in Daubert, many circuits,
including the Fifth, had held that polygraph evidence was per se
inadmissible.6 \ Following Daubert, many circuits, including the Fifth, have
held that polygraph evidence is no longer per se inadmissible but rather that
it should be tested against the Daubert standards ofreliability.62
In a 1995 decision, United States v. Posado, the Fifth Circuit held, in an
opinion that included a lengthy discussion of the controversy surrounding
polygraph evidence, that polygraph evidence should be submitted to a
Daubert analysis. 63 Interestingly, the opinion in that case was written by
Judge DeMoss, the author of the Gibbs opinion.64 Writing for the majority in
Posado, Judge DeMoss noted the difficulties involved in deciding whether
polygraph evidence should be admitted in a particular case. 6S He stated:
It is with a high degree ofcaution that we have today opened the door to the
possibility of polygraph evidence in certain circumstances. We may indeed
be opening a legal Pandora's box. However, that the task is full of
uncertainty and risk does not excuse us from our mandate to follow the
Supreme Court's lead [in Daubert]. ... Nor are we unaware that our opinion
today may raise as many questions as it answers. We leave much unsaid
precisely because we believe that the wisdom and experience of our federal
district judges will be required to fashion the principles that will ultimately
control the admissibility of polygraph evidence under Daubert.66
The United States Supreme Court has also considered the issue of
polygraph evidence post-Daubert. In United States v. Scheffer, the Court held
60.
61.
Id.
See. e.g., United States v. Hall, 80S F.2d 1410, 1416 (10th Cir. 1986); Brown v. Darcy, 783
F.2d 1389, 1391 (9th Cir. 1986); Barrel of Fun, Inc. v. State Farm Fire &: Cas. Co., 739 F.2d 1028, 1031
(5th Cir. 1984); United States v. Brevard, 739 F.2d 180, 182 (4th Cir. 1984); United States v. Alexander,
526 F.2d 161, 166-68 (8th Cir. 1975).
62. See. e.g., United States v. Benavidez-Benavidez, 217 F.3d 720, 724 (9th Cir. 2000); United
States v. Cordoba, 194 F.3d 1053, 1056-57 (9th Cir. 1999); United States v. Call, 129 F.3d 1402, 1404-05
(10th Cir. 1997); United States v. Posado, 57 F.3d 428, 433 (5th Cir. 1995).
63. 57 F.3d 428, 436 (5th Cir. 1995). In Posado, the Fifth Circuit held that polygraph evidence
was no longer per se inadmissible. Id. The court remanded a case in which the trial court had excluded
polygraph evidence based on the previous rule of per se exclusion. Id. The opinion in Posado engaged
in an extended discussion offederal decisions involving the admissibility of polygraph evidence under
both Frye and Daubert. Id. at 435. The court also noted that the flexible standards of Daubert might
portend an enhanced role for Federal Rule of Evidence 403, which permits the trial court to exclude
evidence ifits probative value is substantially outweighed by the danger of unfair prejudice. Id. The Fifth
Circuit followed Posado in Costillo v. Johnson, 141 F.3d 218 (5th Cir. 1998) (holding that the state law
exclusion of polygraph evidence does not violate a criminal defendant's constitutional rights) and United
StaJes v. Pettigrew, 77 F.3d 1500 (5th Cir. 1996) (upholding the exclusion of polygraph evidence based
on relevance objection upheld).
64. Posado, 57 F.3d at 429.
65. Id. at 43G-31.
66. Id. at 436.
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that Military Rule of Evidence 707, which excluded polygraph results in
court-martial proceedings, did not violate the Sixth Amendment.67 In its
opinion, the Court reviewed the literature on polygraph evidence and found
Uno consensus that polygraph evidence is reliable. n68 Against this background
of thorough analysis and discussion by a number of courts, including the
United States Supreme Court and the Fifth Circuit, the court's very brief
discussion of the issue in affirming the admissibility of polygraph evidence
in Gibbs is puzzling.69
Equally as puzzling as the casual way in which the court discussed the
issue is that it could have avoided it altogether. The polygraph results had
been considered by the district court in awarding attorneys' fees and costs to
the defendant insurance company and against the plaintiff.70 The Fifth Circuit
reversed the decision to award the fees and costs to the defendant, holding that
the district court abused its discretion. 71 Because it reversed the trial court's
decision on other grounds, it did not need to reach the polygraph issue and
easily could have avoided the decision as to its admissibility.72 Further, in
reaching the decision as to admissibility, the Fifth Circuit rejected the
plaintiff's premise that the district court's decision regarding her involvement
in her husband's death-the basis for the attorneys' fee award-must have
been based solely on the polygraph evidence.73 The court found that even
excluding the polygraph evidence, it had sufficient evidence to find that the
plaintiff had been a suspect in her husband's murder, again offering an
opportunity to avoid ruling on the evidentiary issue surrounding the polygraph
results. 74
III. HVPNOTICALLY-REFRESHED TESTIMONY: MERSCH V. DALLAS
In Mersch v. City ofDallas, the Fifth Circuit dealt for the first time with
the admissibility of hypnotically-refreshed testimony in a civil case. 7S The
issue was presented to the court in an interlocutory appeal from a denial of
qualified immunity in a § 1983 case; the magistrate had relied on the
67. 523 U.S. 303 (1998); MIL. R. EVID. 707. Military Rule 707 states that "the results of a
polygraph examination, the opinion of a polygraph examiner, or any reference to an offer to take, failure
to take, or taking ofa polygraph examination shall not be admitted into evidence." MIL. R. EVID. 707(a).
68. Scheffer, 523 U.S. at 309.
69. See, e.g., id.; Posado, 57 F.3d at 430-31.
70. Gibbs v. Gibbs, 210 F.3d 491, 499 (5th Clr. Apr. 2000).
71. Id. at 505.
72. Id. at 504. The district court properly used a five-factor test from Todd v. AIG Life Insurance
Co., 47 F.3d 1440, 1458 (5th Cir. 1995), for determining whether attorneys' fees should be awarded.
Gibbs, 210 F.3d at S04.
73. Gibbs, 210 F.3d at 499-500.
74. Id. at SOO.
75. 207 F.3d 732 (5th Cir. Mar. 2000).
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plaintiff's hypnotically refreshed testimony in denying the defendant police
officers' motion for summary judgment on the issue ofimmunity.76
Before reaching the issue of admissibility, the court first rejected the
plaintiff's argument that this was not an appropriate issue for interlocutory
appeal because this issue involved a question of fact. 77 The court held that
where the admissibility of particular evidence was critical to a summary
judgment on the issue of qualified immunity, an issue of law was presented,
as opposed to situations in which the trial judge's order is based merely on the
sufficiency of the evidence.78 Therefore, the case was appropriate for
interlocutory appeal. 79
The plaintiff, Mersch, underwent hypnosis to help her remember the
events that occurred when she was arrested for public intoxication. 80 During
and after the arrest, she suffered injuries, which she at first attributed to falling
down. 81 However, at some point following the arrest, Mersch and her sister
discussed the possibility that the injuries were caused by the officers. 82
Mersch underwent two sessions of hypnosis with a licensed psychologist,
after which she allegedly remembered that her injuries were attributable to
being beaten by the police officers who arrested her. 83 Mersch's hypnoticallyrefreshed testimony was the only evidence that supported the denial of the
summary judgment motion. 84
The court followed its precedent from criminal cases in deciding the
admissibility ofthe plaintiff's testimony, noting that "[w]hile constitutional
safeguards applicable to criminal cases may suggest extra caution when
hypnotically-enhanced evidence is offered by the prosecution, there is no
other reason why the analyses should substantially differ, and other courts
have adopted a consistent approach to both civil and criminal cases. RII5 Noting
that hypnotically-refreshed testimony is not per se inadmissible in the Fifth
Circuit, the court analogized the facts ofthis case to those of United States v.
Valdez, a criminal case in which the court held that hypnotically-refreshed
testimony will not be admissible "when ... a hypnotized subject identifies for
the first time a person he has reason to know is already under suspicion. R86
76.
77.
78.
79.
Id. at 734.
Id.
Id.
Id. Interlocutory orders denying summary judgment on qualified immunity are immediately
appealable when they concern a conclusion of law. Id. (citing Mitchell v. Forsyth, 472 U.S. SII (1985».
80. Id. at 73S.
81. Id. at 734.
82. Id.
83. Id. at 734-3S.
84. Id. The court noted that the proponent of the testimony bears the burden ofshowing that it
is admissible. Id. at 736 n.4.
8S. Id. at 73S.
86. Id. at 73S-36 (quoting United States v. Valdez, 7ll F.2d 1196, 1203 (Sth Cir. 1984». The
court held in Valdez that hypnotically-refreshed testimony is per se inadmissible when the person
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Because Mersch knew that her sister suspected that she had been beaten by the
officers and "her own suspicions ofthe police officers were based on the fact
that she had been in their custody rather than on any concrete memory of an
assault,.. the court found that the hypnotically-refreshed testimony was "so
unreliable as to be more prejudicial than probative."87
The court's 1984 decision in Valdez contained a comprehensive analysis
ofthe law surrounding the admissibility of hypnotically-refreshed testimony,
including discussion ofcases from other circuits in which courts analyzed the
issue according to Federal Rule of Evidence 702, regarding expert evidence,
and the then-widely used Frye test. 88 In Valdez, the Fifth Circuit rejected such
an analysis as inapposite to the admissibility of hypnotically-refreshed
testimony.89 It did so because "the issue is not the admissibility of a
hypnotists' observations or statements made by the witness during hypnosis,
but instead the admissibility of the testimony of a lay witness in a normal
waking state. "90 Therefore, according to the court, the proper analysis was
pursuant to Federal Rules ofEvidence 402,601, and 403.91 Rules 402 and 601
allow relevant evidence to be admitted, and Rule 403 gives the trial judge
discretion to exclude evidence when the probative value is substantially
outweighed by the danger of unfair prejudice.92 In Valdez, the court held that
because the identification was ofa person "known by the witness to be under
suspicion, whom the witness had nevertheless been unable to identify before
being hypnotized," and was uncorroborated, the Rule 403 balancing test
required exclusion.93
The court in Mersch also offered an alternative reason for finding that the
hypnotically-refreshed testimony was improperly considered-it failed to meet
the totality of the circumstances test.94 The totality of the circumstances test,
according to the court, requires a showing of "rudimentary information to
support the objectivity and lack of suggestion" during the hypnosis sessions.9S
There had been no evidence offered about the objectivity and lack of
suggestion at the hypnosis sessions, nor about the psychologist's training or
how much he knew about the case before the sessions.96 Neither was there
undergoing hypnosis identifies for the fust time a person he knows to already be under suspicion. 722
F2d at 1198-99. Although the magistrate had distinguished Jlaldez in admitting Mersch's testimony, the
Fifth Circuit found that the case came ·squarely within the holding of Jlaltkz.· Mersch, 207 F.3d at 736.
87. Mersch, 207 F.3d at 736.
88. Jlaldez, 722 F.2d at 1200-01 (discussing Frye v. United States, 293 F. 1013, 1014 (D.C. Cir.
1923».
89. Id. at 1201.
90. Id.
91. FED. R. EVID. 402; FED. R. EVID. 601; FED. R. EVID. 403.
92. FED. R. EVID. 402; FED. R. EVID. 601; FED. R. EVID. 403.
93. 722 F.2d at 1202.
94. Mersch v. Dallas, 207 F.3d 732, 736 (5th Cir. Mar. 2000).
95. Id.
96. Id.
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corroboration of the hypnotically-induced testimony or recording of the
hypnosis session.97 The totality of the circumstances test had not previously
been applied by the Fifth Circuit in a civil case, although it had been used by
the Fifth Circuit in other contexts.98 The court relied on precedent from the
Second and Eighth Circuits in applying the totality of the circumstances test
to a civil case.99
Although many circuits now analyze hypnotically-refreshed testimony
under the Daubert analysis, the Fifth Circuit has not done SO.IOO Its decision
in Mersch again used Rule 403 and the totality of the circumstances test as
standards by which to judge hypnotically-refreshed testimony. 101 These tests
and the court's application of Valdez to the civil context reaffirms the Fifth
Circuit's position that hypnotically-refreshed testimony implicates neither
Rule 702 nor Daubert. 102
IV. THE ATIORNEY-CLIENT PRIVILEGE: NGUYEN V. EXCEL CORP.
In Nguyen v. Excel Corp., the Court dealt with several interesting issues
regarding the attorney-client privilege. 103 The court was careful to limit its
holding very narrowly, declining to resolve some unsettled issues in the
circuit. 104 Nevertheless, the decision is interesting for several reasons. First,
it involved the unusual situation ofdeposing a party's attorney rather than the
party. lOS It also serves as yet another reminder of the dangers lurking in
failing to properly object when privileged information is involved and as a
good lesson in the distinction between attorney-client confidentiality and the
work product protection. 106
97. Jd.
98. See White v.leyoub, 2S F.3d 24S, 246 (Sth Cir. 1994). In White, the court applied the totality
of the circumstances test in a habeas context. [d.
99. Mersch, 207 F.3d at 736 (citing Borawick v. Shay, 68 F.3d S97, 608-09 (2d Cir. I99S);
Sprynczynatyk v. GMC, 771 F.2d 1112, 1122·23 (8th Cir. I 98S». In Borawick, the Second Circuit
provided a comprehensive summary of approaches taken by the various circuit courts regarding the
admission ofhypnotically-refieshed testimony before choosing the totality ofthe circumstances test as the
appropriate standard. 68 FJd at 604-08. In Sprynczynatyk, the Eighth Circuit likewise reviewed various
approaches to hypnotically-refreshed testimony. 771 F.2d at 1112. The court rejected both a per se rule
of admissibility and a per se rule of inadmissibility. Jd. Instead, the Eighth Circuit held that the district
court should determine admissibility "on a casc-by-c:ase basis." [d. The district courts were directed "to
conduct pretrial hearings on the procedures used during the hypnotic session in question and assess the
effect of hypnosis upon the reliability of the testimony before making decisions on admissibility." Jd.
100. Mersch, 207 F.3d at 736.
101. Jd. at 73S.
102. Jd. at 73S-37.
103. 197 F.3d 200, 204-08 (Sth Cir. Dec. 1999).
104. Jd.
lOS. [d. at 208.
106. See i'!fra text accompanying notes IIS·22, 131-39.
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In Nguyen, 2300 employees brought claims against Excel under the Fair
Labor Standards Act (FLSA), alleging that they were entitled to payment for
time spent getting in and out of protective clothing and washing after their
shifts. 107 Excel relied on two statutory bases for a good faith defense, alleging
that it had reasonable grounds to believe that it acted in compliance with the
FLSA. lOS The issues surrounding the attorney-client privilege arose because
the district court had ordered Excel's attorneys to be deposed following
depositions of Excel employees. 109 During those depositions, the employees
could not explain the basis for their beliefthat Excel had acted in compliance
with the statute without stating that they had relied on advice from counsel. 110
The court considered three issues: (1) whether Excel had waived attorneyclient confidentiality; (2) if so, whether it was appropriate to depose counsel;
and (3) if counsel were deposed, whether the scope of the questions to be
asked during the deposition had been sufficiently limited by the district
court. III
A. Waiver ofAttorney-Client Privilege
Plaintiffs argued that the reliance on a good faith defense served as a
waiver of the attorney-client privilege because the defense puts at issue aU
steps taken by Excel to determine the requirements of the FLSA, including
discussions with counsel. 112 Plaintiffs relied on cases from the Eleventh and
Second Circuits in which those courts had found that, invocation of a good
faith defense constitutes a waiver of the attorney-client privilege. 1I3 Excel
responded with four arguments: first, that its good faith defense did not rely
on the allegation that it had conferred with counsel; second, that even if its
executives had invoked reliance on counsel as a basis for its good faith
defense, that it did so only in response to plaintiffs' putting it in issue, and
Nguyen, 197 F.3d at 202.()3.
Jd. at 203.
Jd. at 204.
Jd.
Jd. at 202.
Jd. at 208.
Jd. at20S n.IO(citing Cox v. Adrn'r United States Steel &; Carnegie, 17 F.3d 1386, 1392 (11th
Cir. 1994); United States v. Bi1zerian, 926 F.2d 128S, 1294 (2d Cir. 1991». In Cox, the Eleventh Circuit
107.
108.
109.
110.
II I.
112.
113.
held that a client had waived the attomey-client privilege when he affinnatively asserted good faith as a
defense rather than relying solely on a denial. 17 F.3d at 1392. By doing so, the client had ·injected the
issue of his knowledge of the law into the case and thereby waived the attomey-client privilege.· Jd. at
1419. In Bi/zer;Q1/, the defendant in a securities fraud case sought a motion in limine that would pennit
him to testifY to his belief in the lawfulness of his actions without being subjected to cross-examination
on communications with his attorney that would normally be covered by the privilege. 926 F.2d at 1291.
The court denied the motion in limine, holding that if the defendant testified to his good faith regarding
the legality of his actions, cross-examination could include questions regarding communications with his
attorney. Jd. As a result, the defendant did not testifY. Jd. He contended on appeal that his constitutional
right to present a defense was infringed upon, a claim rejected by the second Circuit. Jd. at 1291-92.
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therefore, assertion of the defense should not constitute a waiver; third, that
"generic" references to advice from counsel do not amount to a waiver of
attorney-client privilege; and fourth, that any privileged information must be
"vital" to the party seeking disclosure, rather than merely relevant to it, for a
court to find that a waiver has occurred. 114
The court sidestepped the plaintiffs' invitation to hold that assertion of
a good faith defense in this context automatically constitutes a waiver of
attorney-client confidentiality.1I5 Instead, the court looked beyond the parties'
arguments to the specific conduct of Excel's counsel at the depositions of
Excel's employees in which the good faith defense was asserted. 1J6 The court
found that by failing to object appropriately during those depositions, Excel
had waived the attorney-client privilege. I J7 Specifically, the court held that
the failure of Excel's attorneys to object to all questions about the nature of
communications between Excel employees and attorneys, as well as their
failure to stop responses by the deponents to such questions, constituted a
waiver. I IS Additionally, the court found that Excel had waived the privilege
by allowing selective disclosure of confidential communications. 119 Excel
allowed its executives to testify as to directions that they had given their
attorneys and about legal research undertaken by their attorneys.120 Noting
that some objections had been raised when questions were asked about
attorneys' conclusions, the court found that those had been "too little, too
late."121 Relying on established rules of privilege and waiver, the court found
that the partial disclosure of confidential communications that had occurred
constituted waiver of the whole of the protected communications.122
B. Deposition ofCounselor ofExecutives
Excel also argued that the lower court had erred in ordering the
deposition of Excel's attorneys, even if its finding that the privilege had been
waived was proper. 123 Excel asserted that its employees could testify about
communications with their lawyers regarding the good faith defense and
therefore, the employees rather than the lawyers should be required to testify
about those matters. 124 Excel urged the adoption of a three-part test from the
114.
liS.
116.
117.
118.
119.
120.
121.
122.
123.
124.
Nguyen, 197 F.3d at 20S.
Id.
Id. at 208.
Id.
Id.
Id.
Jd.
Id.
Jd.
Jd.
Id.
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Eighth Circuit, which would require a showing of the following before the
attorneys could be questioned: 11(1) [that] no other means exist to obtain the
infonnation, (2) [that] the infonnation sought is relevant and non-privileged,
and (3) [that] the information is crucial to the preparation of the case. nl2S
The court responded to those arguments without explicitly adopting the
Eighth Circuit's test, and found that the district court had not abused its
discretion in refusing to grant a protective order prohibiting the deposition of
Excel's attorneys.l26 As to whether other means existed to obtain the
infonnation, the court referred to the depositions of Excel's employees, in
which they were unable to offer more than "vague and non-specific"
explanations about their good faith defense. In The district court found that
Excel executives could not respond ineaningfully to the questions posed, and
the Fifth Circuit upheld that finding. l2B As to the second factor, the court
found that its earlier discussion of privilege settled that question. l29 As to the
third, the court held that being able to explore the legal advice received by
Excel's managers \Vas crucial to the plaintiffs' ability to meet Excel's good
faith defense. 130
C. Scope ofDeposition Inquiry
Although upholding the finding ofwaiver ofthe attorney-client privilege
and the decision to depose counsel, the court modified the district court's
judgment because of its finding that the district court's order as to the scope
of appropriate inquiry at those depositions was impermissibly broad. III The
order allowed inquiry into counsel's understanding of the defendant's
perceptions and into counsel's opinions. ll2 These, according to the court, are
125. Id.; accord Shelton v. Am. Motors Corp., 80S F.2d 1323 (8th Cir. 1986). In Shelton, a
products liability action, the court reversed a trial court's entry of a default judgment against the
defendants, which it had entered as 8 sanction for defendant's counsel refusing to answer discovery put
to her. 80S F.2d 811324-26. The court noted: ·We view the increasing practice of taking opposing
counsel's deposition as 8 negative development in the area oflitigation, and one thai should be employed
only in limited circumstances.· Id. 81 1327.
126. Nguyen, 197 F.3d 81 208-09. The court cited Leatherman 11. Tarrant County Narcotics
Intelligence & Coordination Unit, 28 F.3d 1388, 1394 (5th Cir. 1994), and Wang 11. Hm, 919 F. 2d 130,
130 (10th Cir. 1990), as authority for using an abuse ofdiscretion Siandard for review ofwhether 8 district
court properly granted or denied a request for 8 protective order th81 would restrict discovery. Nguyen,
197 F.3d 81209 &; n27. The court in Nguyen noted that, were it reviewing the decision de novo, it might
agree with Excel's position that additional questions should be put to the Excel employees before making
a fmal finding th81 the lawyers, rather than the employees, were the proper deponents. Id. 81209.
127. Nguyen, 197 F.3d 81209.
128. Id.
129. Id.
130. Id.
131. Id.81210-1I.
132. Id. 81210. The district court in Nguyen adopted the magiStr8le'S order regarding scope of the
deposition questions. Id. 81209·10. It allowed discovery regarding
the 'good faith' defense including, but not limited to inquiring about advice rendered to
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absolutely protected from discovery under the work product doctrine. 133
Specifically, the court held that the inquiry into objective facts allowed by the
magistrate judge's order was proper. 134 However, inquiry into counsels'
understanding of defendant's perceptions and inquiry into counsels' opinions
was not proper. 13S These inquiries are not prohibited by the attorney-client
privilege because the scope of the privilege encompasses only
communications between attorney and client. IJ6 Had the inquiries been within
the privilege, the magistrate's order would have been proper because the
privilege had been waived; however, these are matters that are protected by
the work product doctrine. 137 The magistrate had attempted to comply with
the work product doctrine by prohibiting inquiry into counsel's mental
impressions but had failed to recognize that some of the allowed inquiry was
also within the scope of work product. 131 The court therefore modified the
district court's judgment relating to the scope ofthe inquiry. JJ9
defendant or defendant's representatives concerning the applicability of the F.L.S.A. with
regard to issues pertinent to this case, the meaning of Reich v. J.B.P. and its applicability to
defendant's operations, and defendant's compliance or non-compliance with the F.L.S.A. as
applicable to this case. Plaintiffs may also inquire as to counsels' understanding of what
defendant and/or defendant's representatives perceived as compliance or non-compliance with
applicable statutes and case: law relevant to the issues raised in this case, as well as defendant's
perceptions of industry practice and the positions ofemployee unions. Counsel may also be
queried concerning their opinions as to whether their advice concerning the above-noted areas
was followed and/or relied upon. The inquiry shall only be allowed for the period up to the
filing of the instant law suit, and inquiry shall not be allowed with respect to counsel's work
product, mental impressions, and confidential attorney-elient communications which occurred
subsequent to the filing of this lawsuit
[d. at 210.
133. [d. at 210.
134. [d.
135. [d.
136. [d.
137. [d. Federal Rule of Civil Procedure 26(b)(3) provides in pertinent part:
Subject to the provisions of subdivision (b)(4) of this rule, a party may obtain discovery of
documents and tangible things otherwise discoverable under subdivision (b)(I) of this rule and
prepared in anticipation of litigation or for trial by offor another party or by or for that other
party's representative (including the other party's attorney, consultant, surety, indemnitor,
insurer, or agent) only upon showing that the party seeking discovery has substantial need of
the materials in the preparation of the party's case and that the party is unable without undue
hardship to obtain the substantial equivalent of the materials by other means. In ordering
discovery ofsuch materials when the required showing has been made, the court shall protect
against disclosure of the mental impressions, conclusions, opinions, or legal theories of an
attorney or other representative of a party concerning the litigation.
Fed. R. Civ. P. 26(b)(3).
138. Nguyen, 197 F.3d at210-11.
139. [d. at 211.
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V. THE FEDERAL INSANITY DEFENSE:
[Vol. 32:801
UNITED STATES V. DIXON
In United States v. Dixon, the court was required to consider the federal
insanity defense and its relationship with Federal Rule of Evidence 704(b).I40
Rule 704(b) provides that an expert witness who is testifying with respect to
mental state or condition may not state "an opinion or inference as to whether
the defendant did or did not have the mental state or condition constituting an
element of ... the defense.n141 The defendant, tried on charges of kidnaping,
rape, and assault, had asserted a defense of insanity.142 The government
offered the testimony of a forensic psychiatrist who had been appointed to
examine the defendant. 143 He testified that he believed that the defendant had
a mental illness, but that the defendant was able to appreciate the nature and
quality, or the wrongfulness, of his acts. l44 Defense counsel objected to this
testimony, claiming that it violated Rule 704(b) by answering the ultimate
issue of the defendant's sanity at the time of the offense. 145
In order to determine whether the expert's testimony violated Rule
704(b), the court first had to decide what the elements of a § 17 insanity
defense are, a question unresolved by Fifth Circuit precedent. 146 The
defendant argued that there are two elements to the insanity defense: (1) that
the defendant was suffering from a severe mental illness at the time of his
criminal conduct, and (2) that the illness rendered him unable to appreciate his
wrongdoing at that time. 147 Under this reading, there would be two ultimate
issues as to which Rule 704(b) would prevent conclusory testimony.148 The
Fifth Circuit held that there were not two distinct elements within the rule
704(b) prohibition, but rather that the mental state or condition that is a part
of § 17 is "subordinate to" the required showing of inability to appreciate
wrongdoing. 149 Therefore, an expert witness "is free to testify as to whether
the defendant was suffering from a severe mental illness at the time of the
criminal conduct; he is prohibited, however, from testifying that this severe
140. 185 F.3d 393, 398 (5th Cir. 1999). 18 U.S.C. § 17(a) provides:
It is an affirmative defense to a prosecution under any Federal statute that, at the time of the
commission of the acts constituting the offense, the defendant, as a result of a severe mental
disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his
acts. Mental disease or defect does not otherwise constitute a defense.
18 U.S.C. § 17(a)(I994).
141. FED. R. EVID. 704(b).
142. Dixon, 18S F.3d at 394.
143. Jd. at 397.
144. Jd.
145. Jd.
146. Jd. at 399.
147. Jd.
148. Jd.
149. Jd. at 400.
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mental illness does or does not prevent the defendant from appreciating the
wrongfulness of his actions."I50
The court's decision relied on a 1996 case from the Fifth Circuit, United
States v. Levine, in which it had identified only the second element of § 17
-the ability to appreciate wrongfulness-in deciding a Rule 704(b) challenge
to expert evidence. 151 The court also relied on the congressional intent behind
§ 17 and Rule 704(b), which were enacted as part ofthe same bill. ls2
The court's holding in Dixon as to the elements of the insanity defense
is a sensible one. tS3 It would surely be inconsistent to allow the defendant to
offer an insanity defense defined by the presence of a severe mental disease,
but to prohibit, pursuant to Rule 794, an expert witness's testifying that the
defendant suffered from the requisite mental disease. lS4
The court next turned to the defendant's argument that the district court
violated Rule 704(b) when it allowed the expert to testify to three matters:
(1) that the defendant was able to appreciate the wrongfulness ofhis conduct,
(2) that a person suffering from the diseases from which the defendant was
suffering could appreciate the wrongfulness of his acts, and (3) that the
defendant was not suffering from a severe mental disease or defect at the time
ofthe alleged crimes. ISS Although it agreed that these statements went to the
ultimate issue and therefore were prohibited by Rule 704(b), 1S6 the court found
that the error had been cured by an instruction to the jury to disregard the
testimony concerning whether the defendant understood the wrongfulness of
his actions. m
The defendant also argued that a question asked by the trial judge
following the government's redirect of its expert witness violated Rule
704(b).ISS Analysis ofthis issue required the panel to maneuver the uncertain
150. Id.
151. Id. at 398 (citing United Slates v. Levine, 80 F.3d 129, 131 (5th Cir. 1996».
152. Id. at 399.
153. Seeid.at407.
154. Seeid.
155. Id. at 398.
156. Id. The court's holding that the existence of a mental illness at the time of the crime was not
a separate element of an insanity defense under § 17 meant that no violation of Rule 704(b) occurred in
admitting that part of the expert's testimony. Id. The court also found that any error in admitting the
expert testimony could not be harmless, because the court relied on that testimony to withhold the jury
instruction on insanity. Id.
157. Id. The pertinent part of the instruction to the jury was included in the opinion:
There was a specific question asked of the doctor about whether or not he believed the
defendant was unable to appreciate the nature and quality or the wrongfulness of his acts, and
I allowed him to give his opinion on that. And I'm instructing you at this time to disregard that
opinion for the following reason: that question is the ultimate question for the jury.... I'm
going to instruct you now to disregard the witness's answer to that question and don't consider
it for any purpose whatsoever.
Id. at 400 n.4.
158. Id. at 400.
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waters regarding the appropriateness of certain hypothetical questions asked
of experts. The trial court's question in Dixon was: "Can a person suffering
from any or all of those [mental illnesses] still, nevertheless, be able to
appreciate the nature and quality or the wrongfulness of his acts?"J59 The
expert replied: "[T]he mere presence of one of these illnesses would not
automatically prevent them from being able to do that."I60
In arguing that the question was improper, the defendant relied in part on
Fifth Circuit precedent prohibiting the use of a hypothetical question in
response to which an expert would testify that a hypothetical person suffering
from the same mental condition and committing the same acts as the
defendant would or would not be able to recognize wrongdoing. 161
Established precedent provides that such a question would be asking the
expert to testify as to his conclusion regarding an element of the insanity
defense and would therefore be impermissible. 162 However, it is permissible
to ask an expert to testify about a hypothetical person who suffered from a
particular mental disease or defect as long as the question or answer does not
contain "a necessary inference as to whether the defendant did or did not have
the mental state or condition constituting an element ofthe crime charged or
of a defense thereto. "163 The court distinguished the question asked by the
trial judge in this case from an impermissible hypothetical question by noting
that the trial judge here "asked a slightly different kind of hypothetical." 164
According to the court, the trial judge's question was phrased in such a way
that although the response indicated that the hypothetical person could still
appreciate the wrongfulness of his acts, it did not require a jury to find that
the defendant appreciated the wrongfulness of his acts. l65 "Instead of
testifying that the defendant did or did not appreciate wrongdoing, [the expert]
merely stated that the presence of a mental illness does not answer, or contain
a necessary inference that would answer, the ultimate issue. "166 Therefore, the
court held, the district judge did not violate Rule 704(b) through his question
or the expert's response to the question. 167
In addition to the Rule 704 issue, the court in Dixon also examined the
issue of what amount of evidence is required for an insanity instruction. 168
159.
160.
161.
ld.
ld. at 400-01.
ld. at 401 &: n.5 (discussing United States v. Levine, 80 F.3d 129 (5th Cir. 1996); United
States v. Manley, 893 F.2d 1221 (5th Cir. 1990); ocean/United States v. Boyd, 55 F.3d 667 (D.C. Cir.
1995); United States v. DeMison. 937 F.2d SS9 (10th Cir. 1991); United States v. Davis, 835 F.2d 274
(11 th Cir. 1988».
162. See id. at 401 (citing levine, 80 F.3d at 134).
163. ld. (quoting Levine, 80 F.3d at 134).
164.
16S.
166.
167.
168.
ld.
ld. at 402.
ld.
ld. (citing United States v. Davis, 83S F.2d 274, 276 (11th Cir. 1988».
ld.
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The trial judge had refused to give a jury instruction on the insanity defense. 169
The Fifth Circuit was required to decide two issues: (1) the proper standard
for reviewing a refusal to give a jury instruction on insanity, and (2) the
standard for detennining whether sufficient evidence was proffered to require
an instruction. l70 As to the fIrst, the court held that, unlike review of denials
to give most types ofjury instructions, the review of a failure to instruct on
mental condition requires a de novo standard of review. 171 In doing so, the
court relied on precedent from other circuits in which courts had applied the
de novo standard because the decision whether there is sufficient evidence to
charge the jury on insanity involves a question of law, and the review of a
decision on a question of law demands a de novo review. 172 It also found that
this "less deferential"J73 standard for reviewing a fInding of insufficient
evidence for a jury instruction is appropriate because of reduced deference
that is usually given when a trial judge's decision takes a matter from the
jury. 174
Next, the court held that § 17's enactment ofthe federal insanity defense
changed the amount of evidence necessary for a defendant to receive an
instruction on insanity.m Previously, the rule was that slight evidence of
insanity was sufficient to warrant a jury instruction. l76 The court followed the
approach of the Eleventh Circuit in United States v. Owens to hold that "a
federal criminal defendant is due a jury instruction on insanity when the
evidence would allow a reasonable jury to fInd that insanity has been shown
with convincing clarity."J77 The court also adopted the Owens court's
explanation of the convincing clarity standard:
[T]he defendant asserting an insanity defense is "not required to eliminate
ambiguity from his proof or to instill certainty in the minds of the jurors."
Rather, "his lesser burden [is] to persuade the jury that his position on the
psychiatric issue is highly probable. n • •• Therefore, a court must give an
169.
Id.
170. Id. at 402.()7.
171. Id. at 403. The usual standard for reviewing jury instructions is abuse ofdiscretion. Id. at 402
(citing United States v. Davis, 132 F.3d 1092, 1094 (5th Cit. 1998».
172. Id. at 403 &. n.7 (citing United States v. Long Crow, 37 F.3d 1319 (8th Cir. 1994); United
States v. Denny-Shatrer, 2 F.3d 999 (lOth Cir. 1993».
173. Id. at 403.
174.
Id.
175. Id. at 404. The standard previously used for the insanity defense was abuse ofdiscretion, just
as it was for other jury instructions. Id. at 402.
176. Id. at 403 (citing Blake v. United States, 407 F.2d 908, 911 (5th Cit. 1969». This rule was
consistent with the rule of the time that once the defendant raised an insanity defense the burden was on
the govemment to prove sanity beyond a reasonable doubt BIaIce, 407 F.2d at 912-13. Section 17 shifted
the burden to the defendant to prove by clear and convincing evidence that he is not guilty by reason of
insanity. Dixon, 185 F.3d at 403.
177. Dixon, 185 F.3d at 403-04 (quoting United States v. Owens, 854 F.2d 432, 435 (11th Cir.
1988».
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insanity instJUction "[i]fthe evidence would pennit the jury to find to a high
probability that defendant was insane. "\78
Finally, the court examined whether this standard had been met in the
case at hand. l79 The district court's denial of the request for the instruction
was based in part on the conclusion of the government's expert that the
defendant was able to appreciate the wrongfulness ofhis acts at the time ofthe
crime. 180 Because that testimony amounted to a conclusion regarding the
"ultimate issue" in the case, the trial judge erred in relying on it to find that the
defendant had not met his burden of showing that a jury instruction was
warranted. 181
.
The only evidence presented at trial regarding insanity consisted of the
defendant's medical records, which showed that he had a history of mental
illness, and testimony of the government's expert witness. 182 In addition to
relying on the inadmissible testimony, the district court had found that the
evidence did not require a jury instruction because the expert did not support
the defendant's view of the evidence, and without the expert, the only
evidence was unexplained medical records. l83 Therefore, the Fifth Circuit
focused its decision on whether the medical records, without expert testimony
provided in support ofthem, were sufficient to meet the "convincing clarity"
standard that it had adopted. 184
The court found that some explanation of the records was necessary,
stating:
[nhe 'convincing clarity' burden for a defendant seeking a jury question
requires more than just a showing that he has been diagnosed with a mental
illness at some point in his life. Rather, he must provide sufficient evidence
so that a rational jUlY could conclude, by clear and convincing evidence, that
he was unable to appreciate his wrongdoing as a result of severe mental
illness. 185
However, the court agreed with the defendant that this burden could be, and
in this case had been, met by the testimony elicited during cross-examination
ofthe government's expert witness. 186 That examination established that the
defendant had been repeatedly diagnosed with various mental illnesses, that
178. Id. at 404 (quoting O1rens, 854 F.2d at 436 & n.8 (11th Cir. 1988» (citation omitted) (first
bracket added).
179. Id.
180. Id.
181. Id. at 405.
182. Id.
183. Id.
184.
185.
186.
Id.
Id. at 406.
Id.
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he received medication for his mental illnesses but had been without his
medicine for several days leading up to the crime, and that the defendant had
been going through manic and depressive phaseS. l87 Therefore, construing the
evidence in the light most favorable to the defendant, the court found that the
medical records, combined with the cross-examination testimony of the
government's admittedly hostile expert, created a jury question on whether the
defendant's mental illnesses could have prevented his knowing the
wrongfulness of his conduct. 188 Accordingly, the court reversed and remanded
the case for a new trial. 189
VI. CONCLUSION
The Fifth Circuit's noteworthy decisions during the survey period dealt
with some of the most challenging issues in the law of evidence: whether
expert evidence is admissible under Rule 702 as defined by the United States
Supreme Court's decision in Daubert v. Me"ilI Dow Pharmaceuticals, Inc.,
including the recurring problem of polygraph evidence; what conduct
constitutes waiver of the attorney-client privilege; whether testimony given
after hypnosis is credible; and issues arising from the federal insanity
defense}90 The court's decisions further refined the law in these areas for
those in the Fifth Circuit, offering helpful guidance for lower courts and
parties. The most surprising ofthe decisions was Gibbs v. Gibbs, in which the
court affirmed the use of polygraph results without acknowledging the longstanding legal and factual controversies surrounding the reliability of
polygraph tests. 191 In its other Daubert-related decision, Rushing, the court
sensibly held that the Daubert factors are satisfied when an expert follows
testing techniques mandated by regulation. l92 In Mersch, the court reaffirmed
its earlier holdings that hypnotically-refreshed testimony is to be considered
under Rule 403 rather than Rule 702, and for the first time used the totality of
the circumstances test in a civil case for detennining whether the refreshed
testimony should be admitted. 193 The court, in Dixon, indicated its agreement
with the decisions of other circuits regarding evidentiary issues related to the
federal insanity defense. 194 And finally, in Nguyen, the court avoided choosing
among differing theories as to whether an affirmative defense of good faith
187.
188.
189.
190.
191.
192.
193.
194.
Id.
Id. at 40S-07 (citing United States v. Owens, 8S4 F.2d 432 (11th Cir. 1988».
Id. at 407.
See ""PTa Parts II-V.
See ""PTa Part n.B.
See ""PTa Part II.A.
See ""PTa Part III.
See ""PTa Part V.
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automatically results in a waiver ofthe attorney-client privilege by finding a
waiver from the client's specific conduct. J9S
The issues addressed by the Fifth Circuit in these cases are complex ones
that are certain to be revisited by lower courts and the Fifth Circuit in the
future. These cases will no doubt be the basis for further development of
complex evidentiary rules.
195.
See supra Part IV.
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