Spencer et al v. Peters et al, 3:11-cv-05424, No. 131 (W.D.Wash. Jan. 4, 2013) (2024)

`
`Case 3:11-cv-05424-BHS Document 131 Filed 01/04/13 Page 2 of 10
`
`
`
`
`
` On November 16, 2012, Spencer filed a motion to strike Fed. R. Civ. P. 26(a)(2)
`
`reports of Roe and Toth and to bar their testimony. Dkt. 106. On December 3, 2012,
`
`Defendant James Peters (“Peters”), former Clark County Prosecutor, filed a response
`
`brief. Dkt. 118. On December 7, 2012, Spencer filed a reply brief. Dkt. 120.
`
`
`
`The instant motion involves a dispute over the expert testimony of Roe, who was a
`
`supervising Senior Deputy Prosecuting Attorney in the King County Special Assault Unit
`
`during the period when Spencer was investigated and prosecuted. Dkt. 119-1 at 4. Peters
`
`has indicated he does not intend to offer the opinions of Toth, as those would be
`
`duplicative of Roe’s testimony. Dkt. 118 at 1. Therefore, the Court will not address
`
`Spencer’s arguments asking the Court to strike and bar the testimony Toth.
`
`II. DISCUSSION
`
`Spencer argues that the Court should strike the expert report of Roe and bar her
`
`testimony as to (1) whether probable cause existed because it is an ultimate issue of law
`
`and therefore inadmissible, (2) the child interview techniques used during the period
`
`Spencer was under investigation, including Roe’s testimony that criticizes the report of
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`Spencer’s expert, Dr. William Bernet (“Dr. Bernet”). See Dkt. 106.
`
`Peters argues Roe is not precluded from testifying as to the ultimate issue of
`
`whether prosecutor Peters knew or should have known that the information which formed
`
`the basis of Spencer’s prosecution was fabricated. Dkt. 118 at 11. Peters argues that the
`
`fact that Roe’s opinion embraces an ultimate issue does not make her opinion
`
`inadmissible under Fed. R. Evid. 704. Peters observes that Spencer himself has, in
`
`numerous pleadings, including the complaint, characterized Roe as an expert in sex
`
`ORDER - 2
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`
`
`

`
`Case 3:11-cv-05424-BHS Document 131 Filed 01/04/13 Page 3 of 10
`
`
`
`crimes investigations and prosecutions. Dkt. 118 at 3-4 (citing, e.g., Dkt. 1 at 13).
`
`Additionally, Peters argues that based on her years of experience Roe could qualify as an
`
`expert under Fed. R. Evid. 702, and it is permissible for her to testify regarding the
`
`interview techniques at issue. Id. at 9.
`
`A.
`
`Standards for Expert Qualification & Testimony
`
`Under Fed. R. Evid. 702, expert testimony should be admitted only if it “will assist
`
`the trier of fact to understand the evidence or to determine a fact in issue. Fed. R. Evid.
`
`702. To qualify as an expert, a witness must have “knowledge, skill experience, training
`
`or education” pertinent to such evidence or fact in issue. Fed. R. Evid. 702 .
`
`The trial court’s gatekeeping function requires the court to assess whether the evidence is
`
`relevant and reliable. Kennedy v. Collagen Corp., 161 F.3d 1226, 1228 (9th Cir. 1998).
`
`Federal courts typically use the Daubert factors as a part of their gatekeeping function.
`
`Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593-594 (1993). The
`
`Daubert factors are (a) whether the theory or technique can and has been tested; (b)
`
`whether the theory or technique has been subjected to peer review and publication; (c) the
`
`known or potential rate of error for the technique; and (d) the theory or technique's
`
`general degree of acceptance in the relevant scientific community. Daubert, 509 U.S. at
`
`593-594. However, the Fed. R. Evid. 702 inquiry under Daubert is a “flexible one” and
`
`“the factors identified in Daubert may or may not be pertinent in assessing reliability,
`
`depending on the nature of the issue, the particular expertise, and the subject of his
`
`testimony.” White v. Ford Motor Co., 312 F.3d 998, 1007 (9th Cir. 2002). The Daubert
`
`factors were not intended to be exhaustive nor apply in every case. Kumho Tire Co., Ltd.
`
`ORDER - 3
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`
`
`

`
`Case 3:11-cv-05424-BHS Document 131 Filed 01/04/13 Page 4 of 10
`
`
`
`v. Carmichael, 526 U.S. 137, 147-48 (1999). In this case, the Court does not find these
`
`factors particularly helpful in determining the relevance and reliability of Roe’s opinions.
`
`Expert opinion testimony is deemed sufficiently reliable if the expert has “good
`
`grounds” for the testimony, that is, if the expert’s conclusions are based on the
`
`knowledge and experience of his or her discipline rather than on “subjective belief or
`
`unsupported speculation.” Kumho Tire Co., Ltd., 526 U.S. at 147-48. Fed. R. Evid. 702
`
`permits expert testimony comparing conduct of parties to the industry standard. Vucinich
`
`v. Paine, Webber, Jackson & Curtis, Inc., 803 F.2d 454, 461 (9th Cir.1986).
`
`Under Fed. R. Evid. 704(a), an expert opinion “is not objectionable just because it
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`embraces an ultimate issue.” See also Larez v. City of Los Angeles, 946 F.2d 630, 635
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`(9th Cir. 1991) (as amended) (finding that testimony of “an expert on proper police
`
`procedures and policies” was relevant and admissible); Davis v. Mason County, 927 F.2d
`
`1473, 1484–85 (9th Cir.1991) (as amended) (testimony of plaintiffs' police practices
`
`expert that officers violated law enforcement standards properly received). The Ninth
`
`Circuit has held that “[a]n ultimate issue opinion by a properly qualified expert should
`
`not be excluded except in the extreme case where the expert's opinion is inherently
`
`17
`
`misleading or unfairly prejudicial.” Kinsey, 843 F.2d at 389.
`
`18
`
`B.
`
`Interview Techniques
`
`Spencer argues that Roe has not established the requisite level of expertise
`
`to challenge the opinions offered by their expert Dr. Bernet regarding interview
`
`techniques used on possible child abuse victims. Dr. Bernet is board certified in
`
`psychiatry, child psychiatry and forensic psychiatry and has researched and authored
`
`ORDER - 4
`
`19
`
`20
`
`21
`
`22
`
`
`
`

`
`Case 3:11-cv-05424-BHS Document 131 Filed 01/04/13 Page 5 of 10
`
`
`
`publications related to interview techniques of possible child abuse victims. Dkt. 106 at 5.
`
`Spencer contends that under Fed. R. Evid. 702, Roe is not qualified to provide opinions
`
`which bear on the interviewing techniques used in Spencer’s criminal case. Id. at 6-7.
`
`He argues in large part that Roe did not specialize in forensic interviews; she did not
`
`conduct any independent research regarding proper interview protocols or techniques; nor
`
`does she have any special training or education that she received regarding proper
`
`interviewing techniques; and her experience prosecuting allegations of sexual abuse is
`
`not enough. Id. at 6-8.
`
`Peters argues that based on her experience and knowledge, Roe qualifies as an
`
`expert who can evaluate statements from witnesses to make charging decisions or to
`
`prepare the testimony of the witness. Dkt. 118 at 8-9. Under Fed. R. Evid. 702, Peters
`
`contends that Roe is qualified for the following reasons: for 17 years she served as a
`
`prosecutor, most of that time was spent heading a unit that prosecuted all sex crimes in
`
`the largest county in the state; she reviewed of hundreds of police reports in order to
`
`make charging decisions; she has personally interviewed hundreds of child victims as
`
`well as personally prosecuted hundreds of sex abuse cases; she has participated as a
`
`speaker in trainings for deputy prosecutors and law enforcement officers concerning
`
`sexual abuse cases; she has been a contributing author to several publications related to
`
`the investigation and prosecution of child sexual abuse cases; she has co-authored a
`
`lengthy chapter on techniques for interviewing child victims; and she was a member of
`
`national advisory boards for the prosecution of child sex abuse cases as well as other
`
`similar organizations. Id. at 9 -10 (citing 119-1-5). Given her experience, Peters argues
`
`ORDER - 5
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`
`
`

`
`Case 3:11-cv-05424-BHS Document 131 Filed 01/04/13 Page 6 of 10
`
`
`
`that Roe is qualified to opine as to whether or not Clark County prosecutors, Peters in
`
`particular, maliciously pursued criminal charges based upon information that they knew
`
`or should have known was fabricated, particularly the information gathered by Detective
`
`Krause from the alleged child victims. Id. at 9-10. That Roe is not an academic, Peters
`
`contends, does not disqualify her as an expert on matters related to the prosecution of
`
`cases which involve child sexual abuse. Id. at 9.
`
`In Roe’s expert report, she provides her opinion on the standard of practice during
`
`child interviews in December 1984. Dkt. 106 at 7. She opines, in part, that in the Peters
`
`interview with Katherine nothing was “so coercive or abuse that it would lead a
`
`reasonable prosecutor to know that the techniques used would yield false information,”
`
`“given the standard of practice in December 1984.” Dkt. 107 at 14. Upon review of
`
`Roe’s qualifications, namely of her experience and knowledge as discussed by Peters in
`
`his opposition brief (see supra.), this Court is likely to deem Roe’s opinions regarding the
`
`standard of practice for interview techniques during 1984 and 1985 reliable and relevant.
`
`There are other opinions in Roe’s report about which Spencer contends that she is
`
`either not qualified to testify to or her opinions are simply based on “subjective belief or
`
`unsupported speculation.” Dkt. 106 at 6. Roe’s opinions involve whether a reasonable
`
`prosecutor would have a basis to believe that information set forth in the reports of law
`
`enforcement at that time were fabricated. Id. These reports include those provided by
`
`Detective Krause and involve the investigatory interviews of Kathryn and Matthew
`
`Hansen. Id. As a 17-year prosecutor, whose experience and knowledge of the
`
`prosecution of sexual abuse cases is well-established by her credentials (see Dkt. 119 -1-
`
`ORDER - 6
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`
`
`

`
`Case 3:11-cv-05424-BHS Document 131 Filed 01/04/13 Page 7 of 10
`
`
`
`5), which include, but are not limited to, years spent evaluating written police reports
`
`containing child witness interviews and making charging decisions based on that
`
`information, the Court finds Roe’s opinions are not simply based on subjective belief or
`
`unsupported speculation, as Spencer asserts. Rather, Roe’s opinions appear to be
`
`grounded in her knowledge and experience. The Court is, therefore, likely to qualify her
`
`as an expert who can testify to these matters. Further, that Roe is not a psychologist or
`
`psychiatrist, as is Spencer’s expert, Dr. Bernet, goes to the weight given to Roe’s
`
`opinions, not to their admissibility. If Roe is qualified as an expert, Spencer is free to
`
`rigorously cross-examine her as to her opinions characterizing or criticizing Dr. Bernet’s
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`report, or any other matters, as well as the bases thereof.
`
`11
`
`C.
`
`Probable Cause
`
`Spencer argues that probable cause is an ultimate legal conclusion, and Roe is
`
`prohibited from opining on that. Spencer contends that although expert testimony is not
`
`objectionable simply because it embraces an ultimate issue, “an expert witness cannot
`
`give an opinion as to her legal conclusion, i.e. an opinion on an ultimate issue of law.”
`
`Dkt. 106 at 3-4 (citing Mukhtar v. California State University, Hayward, 299 F.3d 1053,
`
`n. 10 (9th Cir. 2002)). According to Spencer, such an opinion would not aid the jury, but
`
`would attempt to substitute the expert’s judgment for that of the jury’s. Id. (citing
`
`United States v. Duncan, 42 F.3d 97, 101 (2nd Cir. 1994)). Additionally, in Spencer’s
`
`reply brief, he indicates that any arguments essentially based on what the standard of
`
`practice is for prosecutors should be rejected in part because Peters is being sued for his
`
`role in the investigation, not the prosecution. Dkt. 120 at 2.
`
`ORDER - 7
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`
`
`

`
`Case 3:11-cv-05424-BHS Document 131 Filed 01/04/13 Page 8 of 10
`
`
`
`Peters argues that in order to prevail on a malicious prosecution claim, a
`
`plaintiff must prove that he acted with malice in conspiracy with other defendants by
`
`initiating or continuing a prosecution based on evidence he knew or had reason to believe
`
`was fabricated. Dkt. 118 at 11 (citing McCarty v. Barrett, 804 F. Supp. 2d 1126, 1147
`
`(W.D. Wa. 2011)). Peters argues that “this turns on whether reviewing the reports of
`
`Detective Krause [sic] [and] other law enforcement officers defendant Peters knew or
`
`should have known the allegations contained in those reports were fabricated but
`
`nonetheless proceeded with the prosecution of the plaintiff.” Id. Peters contends Roe is
`
`uniquely qualified to provide expert testimony regarding the conduct of Spencer’s
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`prosecution, as she has reviewed hundreds of police reports in order to make charging
`
`11
`
`decisions. Id. According to Peters, that her opinions go to ultimate issues in the case
`
`12
`
`13
`
`14
`
`does not make Roe’s opinions inadmissible under Fed. R. Evid. 704, which permits the
`
`admission of testimony on ultimate issues in the case. Id. at 11-12 (citing United States
`
`v. Kinsey, 843 F.2d 383, 389 (9th Cir. 1988), reversed on other grounds, United States v.
`
`15
`
`Norby, 225 F.3d 1053 (9th Cir. 2000)).
`
`16
`
`
`
`The Court finds that it will likely qualify Roe as an expert under Fed. R. Evid. 702
`
`and permit her to testify to her December 1984 evaluation of Spencer’s case because it
`
`appears that she has the knowledge and background to do so. Similar to the reasons
`
`articulated above with respect to Roe’s expertise related to interview techniques, the
`
`Court finds that Roe’s experience reviewing hundreds of child abuse reports generated by
`
`law enforcement officers each year, making charging decisions in those cases, and her
`
`personal prosecution of child sex abuse cases as well as the knowledge gained therefrom
`
`ORDER - 8
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`
`
`

`
`Case 3:11-cv-05424-BHS Document 131 Filed 01/04/13 Page 9 of 10
`
`
`
`will likely qualify Roe to testify about her recommendations regarding the filing of
`
`charges against Spencer. Those recommendations involve the opinion she provided to
`
`the Clark County Prosecutor’s Office in 1984 based on her review of the evidence against
`
`Spencer before he was initially charged.
`
`While Spencer disputes that the foregoing is “expert” testimony (Dkt. 120 at 2-3),
`
`Roe’s 1984 recommendations and her opinions about those recommendations ultimately
`
`go to her expertise in the area of child sex abuse cases. Spencer may attempt to call Roe
`
`to testify as to her opinion regarding whether or not to file charges; he may utilize her
`
`1984 recommendation or current expert report; or he may call his own expert to testify
`
`about such issues. If he does, assuming a proper foundation is laid with regard to Roe’s
`
`qualifications, which is consistent with that submitted in connection with the present
`
`motion, Peters will be allowed to fully explore what Roe’s opinion would be were the
`
`later discovered evidence against Spencer known to her.
`
`While the Court will not allow Roe to testify to an ultimate legal conclusion, the
`
`Court realizes her opinions may “embrace” “ultimate issues” in this case, such as the
`
`considerations made by law enforcement officers in determining the existence of
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`probable cause. See Fed. R. Evid. 704(a) (an expert opinion is not objectionable just
`
`because it embraces an ultimate issue). As discussed above, assuming Roe is qualified to
`
`testify as an expert, the Court will likely find that such testimony will not mislead the
`
`jury or be unfairly prejudicial to Spencer. Again, assuming Roe is qualified as an expert,
`
`the Court will likely not prohibit her from explaining the role of the prosecutor in a
`
`ORDER - 9
`
`18
`
`19
`
`20
`
`21
`
`22
`
`
`
`

`
`Case 3:11-cv-05424-BHS Document 131 Filed 01/04/13 Page 10 of 10
`
`
`
`criminal case such as Spencer’s, so long as that testimony otherwise meets within the
`
`requirements of the Federal Rules of Evidence.
`
`The Court denies Spencer’s motion to strike Roe’s report and bar her testimony on
`
`the aforementioned issues. However, before Roe will be allowed to testify, the Court
`
`may hold a hearing, outside the presence of the jury, in order to perform its gatekeeping
`
`function under Daubert.
`
`III. ORDER
`
`Therefore, it is hereby ORDERED that Spencer’s motion to strike the report and
`
`bar testimony of Roe (Dkt. 106) is DENIED.
`
`Dated this 4th day of January, 2013.
`
`A
`
` BENJAMIN H. SETTLE
`
` United States District Judge
`
`
`
`ORDER - 10
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22