United States District Court, E.D. Washington
ORDER ON MOTIONS MOTION GRANTED IN PART (ECF NO. 49),
MOTION GRANTED (ECF NO. 42)
T. RODGERS, UNITED STATES MAGISTRATE JUDGE
matter comes before the Court on Defendant's motion to
Strike the Government's Rule 16 Expert Notice and Compel
Disclosure of Actual Expert Opinions. ECF No. 49. In a
separable aspect of this motion, Defendant specifically
requests that this Court strike proposed expert Nguyen's
testimony relating to the retrograde extrapolation and the
general effects of alcohol.
pending is the United States' motion to reconsider the
Court's previous ruling excluding evidence of the
horizontal gaze nystagmus test. ECF No. 42.
expert opinion testimony of the government's witnesses,
this Court has considered Defendant's motion, ECF No. 49,
the United States' response, ECF No. 50, and the argument
argues that the United States' notice of experts is
procedurally and substantively insufficient under Fed. R.
Crim. P. 16, and requests that this Court strike the expert
testimony noticed therein. The United States responds that
its notice, in context with the discovery provided, is
sufficient under Rule 16 and that if the Court does find the
notice infirm, that the United States should be given an
opportunity to cure the defect.
16(a)(1)(G) requires the government, on Defendant's
request, to provide a written summary of any testimony the
government intends to use under Evidence Rules 702, 703 or
705. The government has identified four such witnesses, and
provided a written statement with respect to
information provided by the government implies the area of
each witness's expertise, and specifies the issues to
which the witness will apply that expertise, but it does not
indicate what opinion or conclusions will be offered
regarding this defendant, in this case. In this
Court's judgment, the disclosures do not comply with Rule
RETROGRADE EXTRAPOLATION AND GENERAL EFFECTS OF ALCOHOL
time of the hearing, Defendant specifically requested that
this Court strike proposed expert Nguyen's testimony
relating to the retrograde extrapolation and the general
effects of alcohol. The United States' responds that it
does not intend to offer evidence of the retrograde
extrapolation in its case-in-chief, but that it still plans
to introduce evidence of the general effects of alcohol
through its proposed expert Nguyen, as previously referenced.
Defendant is out of custody, and the United States has not
established prejudice, this Court finds it is an appropriate
remedy to require the United States to disclose to the
defendant in writing within fourteen days of August 14, 2017
the relevant opinions of its four identified expert
witnesses. This will necessitate a rescheduling of the trial
as set forth below.
MOTION TO RECONSIDER
reasons adduced in the government's motion for
reconsideration ECF No. 42, the court will permit, with
proper foundation, evidence of the Horizontal Gaze Nastagmus
“field sobriety test.” This trial is to the
Court, and at the close of the ...