MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before Court on: (i) the United States' Motion to Compel Supplemental Expert Witness Notice and to Exclude Defense Expert From Offering Opinion as to "Unfounded or Speculative Evidence," filed October 22, 2014 (Doc. 57)("Motion to Compel"); and (ii) Mr. Chapman's Response to the Prosecution's Motion to Compel [Doc. 57], Renewal of Motion to Preclude Government's Expert [Doc. 32] and Request to Conduct Voir Dire Examination of Prosecution's Expert Prior to Testimony Before Jury, filed October 27, 2014 (Doc. 67)("Response"). The Court held a hearing on October 28, 2014. The primary issues are: (i) whether the Notice of Intent to Offer Expert Testimony of Elliot J. Rapoport, Ph.D. (Doc. 53)("Rapoport Notice"), sufficiently discloses the opinions that Elliot J. Rapoport, Ph.D., will give at trial; (ii) whether the Court should permit Defendant Leslie Chapman ("L. Chapman") to conduct a voir dire examination of Gail Starr, Plaintiff United States of America's expert, before trial; and (iii) whether the Court should reconsider its ruling on the Motion for Daubert Hearing and to Exclude Testimony Offered to Bolster Testimony from Another Witness, filed September 10, 2014 (Doc. 32)("Motion to Exclude"), and exclude Starr's testimony. The Rapoport Notice is insufficient, so the Court will order L. Chapman to disclose to Plaintiff United States of America the specific psychological conditions about which Dr. Rapoport will testify. At the October 28, 2014, hearing, the United States provided L. Chapman with the articles on which Starr relied, potentially alleviating L. Chapman's need for voir dire. The Court will, thus, deny L. Chapman's requested voir dire without prejudice to renew after he reviews the articles. Finally, L. Chapman has not presented any new arguments, evidence, or law to cause the Court to question its ruling on the Motion to Exclude, and the Court remains persuaded that the ruling is appropriate. Consequently, the Court will not exclude Starr's testimony.

FACTUAL BACKGROUND

The Amended Information alleges that L. Chapman, on or about January 26, 2014, "unlawfully touch[ed] and appl[ied] force to the person of a household member[, his wife — Dana Chapman —] with intent to injure" her at the "Veterans Affairs Medical Center in Bernalillo County, in the District of New Mexico." Amended Information at 1, filed April 4, 2014 (Doc. 12)("Amended Information"). In doing the "unlawful touch[ing]," L. Chapman allegedly caused D. Chapman "temporary disfigurement and temporary loss and impairment of the function of" a "member of [her] body." Amended Information at 1. The Amended Information also alleges that L. Chapman prevented, obstructed, and delayed the "sending, transmitting, conveying and delivering" of a "message, communication and report by and through telephone." Amended Information at 1-2. The Amended Information further alleges that L. Chapman knowingly possessed and carried a firearm "on the property of the Veterans Affairs Medical Center, Albuquerque, with no official purpose." Amended Information at 1.

According to L. Chapman, immediately after the incident, D. Chapman told a Veterans Affairs officer that L. Chapman scratched her neck and chest. See Response ¶ 6, at 3. L. Chapman contends that D. Chapman repeated these accusations in a handwritten statement that she made a few hours after the incident and that she posed for photographs that law enforcement personnel took to document her injuries. See Response ¶ 6, at 3. D. Chapman later conceded that she inflicted the scratches on herself. See Response ¶ 8, at 3-4.

PROCEDURAL BACKGROUND

As of June 30, 2014, trial was set for September 18, 2014. See Order Granting Continuance of Trial Setting and Setting a Definite Date for Trial at 2, filed June 30, 2014 (Doc. 28). Nine days before trial was to begin, the United State filed a notice of its intent to call Starr as an expert witness. See Notice of Intent to Offer Expert Testimony ¶ 1, at 1, filed September 9, 2014 (Doc. 31)("Starr Notice"). In the Starr Notice, the United States asserts that Starr will "discuss the overall reasons why patients present with self-harm injuries." Starr Notice ¶ 2, at 2. The United States contends that Starr's testimony is relevant, because photographs show that D. Chapman received scratches after the alleged assault, and that Starr's testimony "is necessary to explain the prevalence of such self-injurious conduct in traumatic situations . . . and to prevent confusion by the jury over the proper relevance of the abrasions." Starr Notice ¶ 3, at 3.

The next day, L. Chapman moved to exclude Starr's testimony. See Motion to Exclude at 1. Two days later, on September 12, 2014, the Court held a hearing. At the hearing, the Court ruled that it would grant the Motion to Exclude in part and deny it in part. See Transcript of Hearing at 39:11-41:4 (taken Sept. 12, 2014)(Court)("Sept. 12, 2014, Tr.").1 In light of its ruling, and the close proximity to trial, L. Chapman was "[u]nprepared for trial." Sept. 12, 2014, Tr. at 41:6 (Robert). Both parties agreed to a continuance, and the Court reset the trial date. See Sept. 12, 2014, Tr. at 41:7-11 (Mott, Court); id. at 42:10-24 (Robert, Mott, Court).

On October 14, 2014, L. Chapman filed the Rapoport Notice. See Rapoport Notice at 1. In the Notice, L. Chapman states that, at trial, he intends to call Dr. Rapoport as an expert witness. See Rapoport Notice at 1. L. Chapman asserts that Dr. Rapoport is an expert in clinical psychology and that he is expected to testify that any expert opinion that gives a "particular psychological reason for a one-time self-injury under the circumstances in this case would be unfounded and speculative." Rapoport Notice at 1. L. Chapman states that Dr. Rapoport "will also testify to a variety of other possible psychological reasons for the infliction of self-injury as in this case . . . to accurately inform the jury about the range of psychological possibilities that exist" outside the single possibility that victims of traumatic experiences self-injure themselves. Rapoport Notice at 1.

On October 22, 2014, the United States filed the Motion to Compel. See Motion to Compel at 1. The United States contends that, on October 21, 2014, it requested that L. Chapman supplement the Rapoport Notice to set forth Dr. Rapoport's opinions and the basis for his opinions, but that L. Chapman has not provided it with the information. See Motion to Compel at 1-2. The United States asserts that the Rapoport Notice is too vague to satisfy rule 16(a)(1)(G) of the Federal Rules of Criminal Procedure and rule 702 of the Federal Rules of Evidence. See Motion to Compel at 2. The United States argues that, without an adequate summary of Dr. Rapoport's testimony, it cannot effectively cross-examine him or prepare for trial. See Motion to Compel at 2 (citing United States v. Michel-Diaz, 205 F.Supp.2d 1155, 1157 (D. Mont. 2002)). It contends that the Rapoport Notice states that Dr. Rapoport will testify about possible psychological reasons for self-injury without stating what those reasons are or what the basis for his opinions concerning those reasons are. See Motion to Compel at 2.

The United States argues that, without a report outlining Dr. Rapoport's testimony, it will have to conduct an extensive voir dire during trial, which will waste the Court's time and resources. See Motion to Compel at 2-3. The United States asserts that L. Chapman does not state the basis for Dr. Rapoport's opinion that Starr's testimony is unfounded and speculative. See Motion to Compel at 3-4 (citing First Data Corp. v. Konya, No. CIV 04-0856, 2007 WL 2116378, at *10 (D. Colo. July 20, 2007)). The United States contends that, because the Rapoport Notice lacks sufficient information, the Court cannot adequately determine if Dr. Rapoport's testimony is reliable. See Motion to Compel at 4. It, thus, asks the Court to compel L. Chapman to supplement the Rapoport Notice and to exclude Dr. Rapoport's testimony that Starr's testimony is unfounded and speculative, because his own testimony is unfounded and speculative. See Motion to Compel at 4.

L. Chapman responded to the Motion to Compel on October 27, 2014. See Response at 1. He uses the Response for three purposes: (i) to respond to the Motion to Compel; (ii) to renew the Motion to Exclude; and (iii) to request the Court permit him to conduct voir dire of Starr before trial. See Response at 1. L. Chapman contends that he retained Dr. Rapoport to assist him and to possibly testify at trial. See Response ¶ 2, at 2. He asserts that, on October 22, 2014, he received a letter from Dr. Rapoport stating, among other things, that D. Chapman's self-injury could be the result of at least five different psychological problems and that there is not enough information to properly diagnose her. See Response ¶ 3, at 2; Letter from Elliot J. Rapoport, Ph.D., Licensed Clinical Psychologist, to Marc Robert, Esq. at 1-2 (dated Oct. 13, 2014), filed October 27, 2014 (Doc. 67-1)("Rapoport Letter").

L. Chapman repeats the facts and procedural history of the case — that, after the incident, D. Chapman blamed L. Chapman for scratches on her chest, but it later came to light that D. Chapman scratched herself. See Response ¶¶ 6-8, at 3-4. He contends that Starr's testimony is too speculative, which is a problem that the Rapoport Letter, and the lack of any treatment or evaluation of D. Chapman, highlights. See Response ¶ 9, at 4. L. Chapman argues that, because there are a number of psychological reasons why D. Chapman could have scratched herself, there is no reason for concluding that D. Chapman suffers from any one of those reasons, which is why Dr. Rapoport's testimony is necessary to give the jury a complete picture of the psychological reasons for D. Chapman's self-injury. See Response ¶ 10, at 4-5. He contends that merely because Starr — who works with traumatized women — sees a correlation between D. Chapman's actions and her own experiences does not mean her testimony will assist the jury. See Response ¶ 11, at 5. L. Chapman maintains that, because Starr cannot properly diagnose D. Chapman, and because Starr can only testify to her anecdotal experiences with abuse victims, her testimony will confuse the jury. See Response ¶¶ 12-14, at 6. He states that, "[a]s he argued before" — likely referring to the Motion to Exclude — Starr's testimony should also be excluded under rule 403 of the Federal Rules of Evidence. Response ¶ 16, at 7. L. Chapman asserts that, because Starr did not prepare a report or testify at the September 12, 2014, hearing, he should have an opportunity to conduct a voir dire examination of Starr so that the Court can make a final determination on the admissibility of her testimony. See Response ¶ 17, at 7. Later, on the same day that L. Chapman filed the Response, the Court issued the Memorandum Opinion and Order, filed October, 27, 2014 (Doc. 70)("MOO"), explaining its rationale for granting in part and denying in part the Motion to Exclude. See MOO at 1.

The Court held a hearing on October 28, 2014. See Transcript of Hearing (taken Oct. 28, 2014)("Oct. 28, 2014, Tr.").2 The Court asked the United States if the Rapoport Letter was a sufficient disclosure, and the United States said that letter was partially sufficient, but that it is insufficient insofar as it does not say whether Dr. Rapoport will testify. See Oct. 28, 2014, Tr. at 35:16-25 (Mott, Court). L. Chapman stated that he is planning on calling Dr. Rapoport to testify and that he would testify that there are a number of psychological conditions, other than trauma, that could have caused D. Chapman to self-injure. See Oct. 28, 2014, Tr. at 36:2-20. (Robert, Court). The United States contended that it did not know about what other psychological conditions Dr. Rapoport may testify, which is information that it needs to know to properly prepare for cross examination. See Oct. 28, 2014, Tr. at 36:22-6 (Mott). L. Chapman maintained that, because no one examined D. Chapman, neither Starr nor Dr. Rapoport can say can say why D. Chapman injured herself. See Oct. 28, 2014, Tr. at 37:12-38:8. The Court told L. Chapman to list the reasons that Dr. Rapoport will testify may have caused D. Chapman to self-injure, and the United States said that the list should be sufficient. See Oct. 28, 2014, Tr. at 38:9-20 (Mott, Robert, Court).

Turning to the Response, L. Chapman contended that, in the MOO, the Court laid out the concerns it had with Starr's testimony and noted that the United States represented that it would provide literature on self-harm, but had not done so. See Oct. 28, 2014, Tr. at 43:22-44:17 (Converse). The United States noted that it had three articles on self-injury, which it provided to L. Chapman and to the Court, and that, in the MOO, the Court also identified an article that suggested that self-injury can be a one-time event. See Oct. 28, 2014, Tr. at 45:1-46:6 (Mott, Court). See also Self-Harm: Key Facts, Royal College of Psychiatrists; Self-Harm: The NICE Guideline on Longer-Term Management, The National Collaborating Centre for Mental Health (2012); Self-Harm, Suicide and Risk: Helping People Who Self-Harm — Final Report of a Working Group, Royal College of Psychiatrists (June 2010). The Court asked the United States if those three articles were all on which Starr would rely, and the United States replied that she may rely on a few more, but that Starr did not provide it with copies of the other articles. See Oct. 28, 2014, Tr. at 46:5-10 (Mott, Court). The Court asked the United States if it would provide L. Chapman with every article on which Starr would rely, and it said that it would. See Oct. 28, 2014, Tr. at 46:18-21 (Mott, Court).

The Court asked L. Chapman whether, after receiving copies of every article on which Starr would rely, he needed any more information, and he said that he may still need to conduct voir dire of Starr before trial. See Oct. 28, 2014, Tr. at 46:22-25 (Converse, Court). The Court asked why, after receiving the articles, L. Chapman needed to conduct voir dire, and he asserted that he had not yet read the articles to see what they say about the Diagnostic and Statistical Manual of Mental Disorders IV and self-injuries in a situation that is similar to the case. See Oct. 28, 2014, Tr. at 47:14-22 (Converse, Court). The Court said that it would deny L. Chapman's voir dire request at the time, but that, after L. Chapman reviewed the articles, if he still has questions, he can renew his request. See Oct. 28, 2014, Tr. at 49:14-19 (Court).

LAW REGARDING EXPERT TESTIMONY

"Since the Supreme Court of the United States decided Daubert v. Merrell Dow Pharmaceuticals, Inc.[, 509 U.S. 579 (1993)], trial courts have had the responsibility to make certain that proffered experts will assist the jury in understanding the evidence and in determining the factual issues it must decide." United States v. Gutierrez-Castro, 805 F.Supp.2d 1218, 1224 (D.N.M. 2011)(Browning, J.). "The Court now must not only decide whether the expert is qualified to testify, but, under Daubert v. Merrell Dow Pharmaceuticals, Inc., whether the opinion testimony is the product of a reliable methodology." United States v. Gutierrez-Castro, 805 F. Supp. 2d at 1224. "Daubert v. Merrell Dow Pharmaceuticals, Inc. requires a court to scrutinize the proffered expert's reasoning to determine if that reasoning is sound." United States v. Gutierrez-Castro, 805 F. Supp. 2d at 1224.

1. Rule 702.

Rule 702 of the Federal Rules of Evidence governs the admissibility of expert testimony:

Fed. R. Evid. 702. Rule 702 thus requires the trial court to "determine whether the expert is proposing to testify to (1) scientific, technical, or other specialized knowledge that (2) will assist the trier of fact to understand or determine a fact in issue." United States v. Muldrow, 19 F.3d 1332, 1337 (10th Cir. 1994). Rule 702 uses a liberal definition of "expert." Fed. R. Evid. 702 advisory committee's note to 1972 proposed rules ("[W]ithin the scope of this rule are not only experts in the strictest sense of the word, e.g. physicians, physicists, and architects, but also the large group sometimes called `skilled' witnesses, such as bankers or landowners testifying to land values."). An expert is "required to possess such skill, experience or knowledge in that particular field as to make it appear that his opinion would rest on substantial foundation and would tend to aid the trier of fact in his search for truth." LifeWise Master Funding v. Telebank, 374 F.3d 917, 928 (10th Cir. 2004). The proponent of expert testimony has the burden of establishing by a preponderance of the evidence that the pertinent admissibility requirements are met. See Morales v. E.D. Etnyre & Co., 382 F.Supp.2d 1252, 1266 (D.N.M. 2005) (Browning, J.)(citing Bourjaily v. United States, 483 U.S. 171, 175 (1987)). Once the trial court has determined that expert testimony would be helpful to the trier of fact, a witness "may qualify as an expert by knowledge, skill, experience, training, or education and . . . the expert . . . should not be required to satisfy an overly narrow test of his own qualifications." Gardner v. Gen. Motors Corp., 507 F.2d 525, 528 (10th Cir. 1974)(internal quotation marks omitted). Courts should, under the Federal Rules of Evidence, liberally admit expert testimony, see United States v. Gomez, 67 F.3d 1515, 1526 (10th Cir. 1995)(describing rule 702 as a "liberal standard"), and the trial court has broad discretion in deciding whether to admit or exclude expert testimony, see Werth v. Makita Elec. Works, Ltd., 950 F.2d 643, 647 (10th Cir. 1991)(noting the trial court's decision will not be overturned "unless it is manifestly erroneous or an abuse of discretion").

2. The Standard in Daubert v. Merrell Dow Pharmaceuticals, Inc.

In its gatekeeper role, a court must assess the reasoning and methodology underlying an expert's opinion, and determine whether it is both scientifically valid and relevant to the facts of the case, i.e., whether it is helpful to the trier of fact. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. at 594-95; Witherspoon v. Navajo Ref. Co., LP, No. CIV 03-1160 BB/LAM, 2005 WL 5988649, at *2 (D.N.M. July 18, 2005)(Black, J.)(citing Dodge v. Cotter Corp., 328 F.3d 1212, 1221 (10th Cir. 2003)). The Supreme Court articulated a non-exclusive list of factors that weigh into a district court's first-step reliability determination, including: (i) whether the method has been tested; (ii) whether the method has been published and subject to peer review; (iii) the error rate; (iv) the existence of standards and whether the witness applied them in the present case; and (v) whether the witness' method is generally accepted as reliable in the relevant medical and scientific community. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 594-95. The court is also to consider whether the witness' conclusion represents an "unfounded extrapolation" from the data; whether the witness has adequately accounted for alternative explanations for the effect at issue; whether the opinion was reached for the purposes of litigation or as the result of independent studies; or whether it unduly relies on anecdotal evidence. See Witherspoon v. Navajo Ref. Co., LP, 2005 WL 5988649 at *3 (citing Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)). The Tenth Circuit stated the applicable standard in Norris v. Baxter Healthcare Corp.:

397 F.3d 878, 883-84 (10th Cir. 2005)(footnote omitted). "The second inquiry is related to the first. Under the relevance prong of the Daubert analysis, the court must ensure that the proposed expert testimony logically advances a material aspect of the case. . . . The evidence must have a valid scientific connection to the disputed facts in the case." Norris v. Baxter Healthcare Corp., 397 F.3d at 884 n.2 (citing Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1315 (9th Cir. 1995)(on remand from the Supreme Court); Daubert v. Merrell Dow Pharm., Inc., 509 U.S. at 591). If the expert's proffered testimony fails on the first prong, the court does not reach the second prong. See Norris v. Baxter Healthcare Corp., 397 F.3d at 884. In Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), the Supreme Court expanded the rules under Daubert v. Merrell Dow Pharmaceuticals, Inc., to non-scientific expert testimony. See 526 U.S. at 141 ("We conclude that Daubert's general holding — setting forth the trial judge's general `gatekeeping' obligation — applies not only to testimony based on `scientific' knowledge, but also to testimony based on `technical' and `other specialized' knowledge."). The Supreme Court recognized in Kumho Tire Co. v. Carmichael that the factors from Daubert v. Merrell Dow Pharmaceuticals, Inc. will not apply to all cases:

Kumho Tire Co. v. Carmichael, 526 U.S. at 150 (internal quotation marks omitted).

In conducting its review under Daubert v. Merrell Dow Pharmaceuticals, Inc., the Court must focus generally on "principles and methodologies, and not on the conclusions generated." Armeanu v. Bridgestone/Firestone N. Am., Tire, LLC, No. CIV 05-0619 JB/DJS, 2006 WL 4060665, at *11 (D.N.M. Sept. 26, 2006)(Browning, J.)(citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. at 595). "Despite this focus on methodology, an expert's conclusions are not immune from scrutiny and the court may conclude that there is simply too great an analytical gap between the data and the opinion proffered." Armeanu v. Bridgestone/Firestone N. Am., Tire, LLC, 2006 WL 4060665, at *11 (alterations omitted)(internal quotation marks omitted). The proponent of the expert's opinion testimony bears the burden of establishing that the expert is qualified, that the methodology he or she uses to support his or her opinions is reliable, and that his or her opinion fits the facts of the case and thus will be helpful to the jury. See Norris v. Baxter Healthcare Corp., 397 F.3d at 881. The Tenth Circuit noted in Hollander v. Sandoz Pharmaceuticals Corp., 289 F.3d 1193 (10th Cir. 2002):

289 F.3d at 1206 (citation omitted). The United States Court of Appeals for the Ninth Circuit noted in Claar v. Burlington Northern Railroad Co., 29 F.3d 499 (9th Cir. 1994):

29 F.3d at 502-503 (citation omitted).

Ram v. N.M. Dep't of Env't, No. CIV 05-1083 JB/WPL, 2006 WL 4079623, at *10 (Dec. 15, 2006)(Browning, J.)(citing United States v. Rodriguez-Felix, 450 F.3d 1117, 1123 (10th Cir. 2006)).

An untested hypothesis does not provide a scientific basis to support an expert opinion. See Norris v. Baxter Healthcare Corp., 397 F.3d at 887 ("[A]t best, silicone-associated connective tissue disease is an untested hypothesis. At worst, the link has been tested and found to be untenable. Therefore, there is no scientific basis for any expert testimony as to its specific presence in Plaintiff."); In re Breast Implant Litig., 11 F.Supp.2d 1217, 1228 (D. Colo. 1998)(Sparr, J.)("An untested hypothesis cannot be a scientifically reliable basis for an opinion on causation."). A court is not required "to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert. The court may conclude that there is simply too great an analytical gap between the data and the opinion proffered." Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997). See Hollander v. Sandoz Pharm. Corp., 289 F.3d 1193, 1209 (10th Cir. 2002)(noting a lack of similarity between animal studies and human studies); Tyler v. Sterling Drug, Inc., 19 F.Supp.2d 1239, 1244 (N.D. Okla. 1998)("Test results on animals are not necessarily reliable evidence of the same reaction in humans."). Courts have excluded experts' opinions when the experts depart from their own established standards. See Truck Ins. Exch. v. MagneTek, Inc., 360 F.3d 1206, 1213 (10th Cir. 2004)("The district court noted that [the expert]'s opinion did not meet the standards of fire investigation [the expert] himself professed he adhered to."); Magdaleno v. Burlington N. R.R. Co., 5 F.Supp.2d 899, 905 (D. Colo. 1998)("In sum, [the expert]'s methodology is not consistent with the methodologies described by the authors and experts whom [the expert] identifies as key authorities in his field.").

3. Necessity of Evaluating an Issue Under Daubert v. Merrell Dow Pharmaceuticals, Inc.

The restrictions in Daubert v. Merrell Dow Pharmaceuticals, Inc. apply to both "novel" expert testimony and "well-established propositions." 509 U.S. at 593 n.11 ("Although the Frye[3] decision itself focused exclusively on `novel' scientific techniques, we do not read the requirements of Rule 702 to apply specially or exclusively to unconventional evidence."). "Of course, well-established propositions are less likely to be challenged than those that are novel, and they are more handily defended." Daubert v. Merrell Dow Pharm., Inc., 509 U.S. at 593 n.11. "Indeed, theories that are so firmly established as to have attained the status of scientific law, such as the laws of thermodynamics, properly are subject to judicial notice under Federal Rule of Evidence 201." Daubert v. Merrell Dow Pharm., Inc., 509 U.S. at 593 n.11.

"[W]hen experts employ established methods in their usual manner, a district court need not take issue under Daubert. . . ." Attorney Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d 769, 780 (10th Cir. 2009). "[H]owever, where established methods are employed in new ways, a district court may require further indications of reliability." Attorney Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d at 780. Whether courts have accepted theories underlying an expert's opinion is a relevant consideration in determining whether expert testimony is reliable. See Attorney Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d at 780 ("The case law indicates that the courts are not unfamiliar with the [polymerase chain reaction] methodology, and in fact some courts have indicated their acceptance of it.").

4. Expert Testimony Bolstering Other Witnesses' Credibility.

"The credibility of witnesses is generally not an appropriate subject for expert testimony." United States v. Toledo, 985 F.2d 1462, 1470 (10th Cir. 1993). See United States v. Ganadonegro, 805 F.Supp.2d 1188, 1213 (D.N.M. 2011)(Browning, J.)(excluding expert testimony on whether defendant's confession was credible).

United States v. Hill, 749 F.3d 1250, 1258 (10th Cir. 2014)(quoting United States v. Toledo, 985 F.2d at 1470). The bar on credibility-bolstering expert testimony is grounded in a number of evidentiary rules. See United States v. Charley, 189 F.3d 1251, 1267 n.21 (10th Cir. 1999)(en banc). Expert testimony that vouches for the credibility of other witnesses lacks "relevance [under rule 401] and would not `assist the trier of fact as required by Rule 702.'" United States v. Adams, 271 F.3d 1236, 1246 (10th Cir. 2001)(quoting United States v. Charley, 189 F.3d at 1267). See United States v. Harry, No. CR 10-1915 JB, 2014 WL 1949993, at *38 (D.N.M. May 5, 2014)(Browning, J.)(concluding that expert's testimony was not relevant if expert testified that witness' demeanor suggested that the witness was not subjected to a sexual assault, because the testimony impermissibly went to the witness' credibility).

United States v. Charley, 189 F.3d at 1267 n.21. See United States v. Benally, 541 F.3d 990, 995 (10th Cir. 2008)(affirming district court's exclusion of vouching testimony under rule 403's balancing test). The bar on bolstering a witness' testimony only extends to expert testimony concerning the witness' credibility and not to expert testimony that is consistent with another witness' testimony. See United States v. Charley, 189 F.3d at 1264. In United States v. Charley, the Tenth Circuit held, en banc, that the district court did not err in permitting an expert witness to testify that the actions and symptoms of two girls were consistent with those of a sexual assault victim. See 189 F.3d at 1264. The expert's testimony was consistent with the two girls' testimony that they had been sexually assaulted. See 189 F.3d at 1258. The Tenth Circuit held, however, that the district court erred in permitting a psychiatrist to testify that he believed the girls were sexually assaulted, based on statements the girls made to the psychiatrist, because the testimony "was essentially vouching for [the girls'] truthfulness." 189 F.3d at 1267.

In United States v. Chaco, 801 F.Supp.2d 1200 (D.N.M. 2011)(Browning, J.), the Court permitted a doctor to testify that an examination of a sexual assault victim did not show any signs of sexual assault but that the majority of physical examinations on sexually assaulted prepubescent girls result in normal findings. See 801 F. Supp. 2d at 1216. The Court permitted the doctor to testify that the examination, which resulted in no evidence of sexual abuse, was still consistent with the victim being sexually abused. See 801 F. Supp. 2d at 1216. The Court excluded, however, testimony from the doctor that the victim had been sexually assaulted, because the doctor only knew that the victim was sexually assaulted based on statements that the victim made to the doctor. See 801 F. Supp. 2d at 1216. The Court reasoned that permitting the doctor to testify that the victim had been sexually assaulted would serve to impermissibly vouch for the witness' credibility. See 801 F. Supp. 2d at 1216 (citing United States v. Velarde, 214 F.3d 1204, 1211 n.6 (10th Cir. 2000)). The Court concluded, however, that the doctor's testimony that the examination results were consistent with that of a sexual assault victim was based on the doctor's knowledge and experience, and was, thus, permissible expert testimony. See United States v. Chaco, 801 F. Supp. 2d at 1216.

LAW REGARDING EXPERT TESTIMONY BY LAW ENFORCEMENT OFFICERS

"[P]olice officers can testify as experts based on their experience `[b]ecause the average juror is often innocent of the ways of the criminal underworld,'" United States v. Kamahele, 748 F.3d 984, 998 (10th Cir. 2014)(alteration in United States v. Kamahele but not in quoted source) (citation omitted), and "because it is likely to assist the trier of fact to understand an otherwise unfamiliar enterprise," United States v. Wilson, 276 F. App'x 859, 861 (10th Cir. 2008) (unpublished).4 See United States v. Quintana, 70 F.3d 1167, 1171 (10th Cir. 1995)("This Court has repeatedly held that in narcotics cases, expert testimony can assist the jury in understanding transactions and terminology." (citing United States v. Garcia, 994 F.2d 1499 (10th Cir. 1993); United States v. Sturmoski, 971 F.2d 452, 459 (10th Cir. 1992); United States v. McDonald, 933 F.2d 1519, 1522-23 (10th Cir. 1991); Specht v. Jensen, 853 F.2d 805, 809 (10th Cir. 1988))). The Tenth Circuit "has repeatedly held that in narcotics cases, expert testimony [by a law enforcement officer] can assist the jury in understanding transactions and terminology." United States v. Walker, 179 F. App'x 503, 507 (10th Cir. 2006)(unpublished)(quoting United States v. Quintana, 70 F.3d 1167, 1171 (10th Cir. 1995)). "This rule is based on the Tenth Circuit's recognition that the modus operandi of drug organizations, the value of drug quantities, the language of narcotics dealers, and the tools of the narcotics trade `are not subjects with which most jurors are familiar.'" United States v. Hernandez-Mejia, No. CR 05-0469 JB, 2007 WL 2219411, at *4 (D.N.M. Apr. 30, 2007)(Browning, J.)(quoting United States v. McDonald, 933 F.2d 1519, 1522 (10th Cir. 1991)). Other Circuits are in accord. See United States v. Martinez, 476 F.3d 961, 967 (D.C. Cir. 2007)("Expert testimony about the methods of drug organizations is common in drug cases."); United States v. Robles-Rosas, 27 F. App'x 897, 899 (9th Cir. 2001) (unpublished)(holding that the district court did not abuse its discretion in permitting testimony regarding the modus operandi of drug organizations); United States v. Gastiaburo, 16 F.3d 582, 589 (4th Cir. 1994)("[T]estimony on the modus operandi of criminals `is commonly admitted,' particularly regarding the methods of drug dealers."). For example, in cases involving possession with intent to distribute, the Tenth Circuit has held that "testimony with regard to the significance of a quantity of drugs possessed is specialized knowledge that assists the jury in understanding a fact at issue." United States v. Mundy, 97 F. App'x 844, 846 (10th Cir. 2004) (unpublished). The Tenth Circuit has also recognized that, when a defendant denies awareness, the value of drugs found is relevant to the issue of a defendant's knowledge of the presence of the drugs within the vehicle. See United States v. Rodriguez, 192 F.3d 946, 949 (10th Cir. 1999)(citing United States v. Hooks, 780 F.2d 1526, 1532 (10th Cir. 1986)).

Although early cases dealing with this genre of expert testimony articulated the standard of admissibility as being whether the expert testimony is "necessary" to achieve jury understanding, United States v. Robinson, 978 F.2d 1554, 1563 (10th Cir. 1992)("[G]ang-related items may necessitate the appearance of an expert witness if the jury could not understand the significance of possession of these items." (emphasis added)(citation omitted)); id. at 1564-65 ("[T]he expertise of this particular witness was necessary. . . . The average juror would fail to recognize the `significance of this evidence without the particular background knowledge' of gangs and the philosophy of gang membership. `Without [the expert testimony], the basic evidence would leave a juror puzzled.'" (emphases added)(quoting United States v. McDonald, 933 F.2d at 1522)), more recent cases — perhaps as a result of the broader liberalization of expert testimony that accompanying the replacement of the Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), standard with the Daubert, standard5 — articulate the standard as being whether the expert testimony "will assist the trier of fact," United States v. Rodriguez-Felix, 450 F.3d 1117, 1122 (10th Cir. 2006)(emphasis added), or whether it will be "helpful to the jury," United States v. Kamahele, 748 F.3d at 997.

There are special concerns attendant to law enforcement expert testimony. The Court will first describe United States v. Medina-Copete, 757 F.3d 1092 (10th Cir. 2014)("Medina-Copete"), which appears to be the sole case from the Tenth Circuit — which has generally broadly approved expert testimony by law enforcement officers — reversing a district court for allowing such testimony. Second, the Court will describe the special dangers of expert testimony by law enforcement officers as other Circuits, particularly the United States Court of Appeals for the Second Circuit, have outlined them.

1. Medina-Copete and Tools of the Trade.

It is noteworthy that the Tenth Circuit routinely identifies so-called tools of the drug trade — such as razor blades, pagers and beepers, pistols, and food stamps — as being particularly appropriate subjects of law enforcement expert testimony, see, e.g., United States v. Becker, 230 F.3d 1224, 1231 (10th Cir. 2000); United States v. McDonald, 933 F.2d at 1522, but law enforcement expert testimony is by no means limited to tools of the trade. The Tenth Circuit has upheld law enforcement expert testimony describing drug-dilution practices and street names for drug weights, see United States v. Quintana, 70 F.3d at 1171, stating that the defendant fits the "profile" of someone who commits the crime with which the defendant is charged, United States v. Becker, 230 F.3d at 1231, and explaining general procedures followed at drug transactions, such as that "outsiders [are] not . . . allowed to count and handle money," United States v. Wilson, 276 F. App'x at 861. "Tools of the trade may necessitate the appearance of an expert witness if the jury could not understand the significance of the possession of those items." United States v. Becker, 230 F.3d 1224, 1231 (10th Cir. 2000). The Tenth Circuit has held that it was appropriate for the government to present evidence regarding "typical indicia of drug trafficking activity" in a case where the government sought "to identify for the jury common red flags suggestive of an illicit pharmaceutical operation." United States v. Lovern, 590 F.3d 1095, 1102 (10th Cir. 2009). The Tenth Circuit has "upheld the admission of expert testimony detailing the significance of `a drug dealer's tools of trade: a single-edge razor blade, a pager or beeper, and a loaded pistol.'" United States v. Becker, 230 F.3d at 1231 (alteration in original). The Tenth Circuit has also upheld "the admission of expert testimony to `explain[] the meaning of the physical evidence' officers `found at the arrest scene . . . where the narcotics were confiscated." United States v. Becker, 230 F.3d at 1231. The Tenth Circuit found it permissible for an officer to testify "about the common features of drug transactions to assist the jury in understanding the nature of the drug business," including "that most drug organizations are closed and secretive and that it would be unusual for a person who was not otherwise involved in the operation to be present during the transaction." United States v. Wilson, 276 F. App'x at 860-61. The United States Court of Appeals for the Fourth Circuit has recognized that a person may properly be qualified as an expert "in the field of investigative drug trafficking" in a given geographical area. United States v. Wilson, 484 F.3d 267, 273 (4th Cir. 2007) (Williams, J., joined by Niemeyer & Gregory, JJ.).

In most of the Tenth Circuit's cases, there appears to be no analytical distinction between "tools of the trade" testimony and other law enforcement expert testimony — the former is simply a prominent genus of the latter. That said, the Court can find only one case in which the Tenth Circuit held that a district court abused its discretion by permitting law enforcement expert testimony — Medina-Copete — and that case reversed the Court at least in part on the basis that the subject about which the law enforcement expert witness testified was not a tool of the trade. Medina-Copete appears to be not only the sole Tenth Circuit case reversing a district court for allowing law enforcement expert testimony, but the only case even holding that a district court abused its discretion in admitting such testimony.6 In that case, the Tenth Circuit reversed the Court's decision to allow an expert witness — the United States Marshal for the Western District of Texas — to testify that a prayer card recovered from the defendants suggested their involvement in the drug trade. See Medina-Copete, 757 F.3d at 1099. The prayer card venerated Santa Muerte, a figure whom the Roman Catholic Church does not recognize as a Saint and who is widely referred to — by the Marshal and in popular culture7 — as a "narco saint." 757 F.3d at 1101. The case is an unusual one, in which the Tenth Circuit, for the first time, appeared to suggest that tools-of-the-trade testimony is analytically distinct from other expert testimony. See Medina-Copete, 757 F.3d at 1102-03. Alternatively, the Tenth Circuit may have simply been saying that a prayer card is not a tool of the trade, while implicitly conceding that tools of the trade often support expert testimony. Either way, while the Court had ruled that Santa Muerte's association with the drug trade — the pseudo-saint is widely popular among the drug cartels, but plays virtually no role in law-abiding citizens' lives8 — was a worthy topic of expert testimony, the Tenth Circuit wanted something more:

Medina-Copete, 757 F.3d at 1102-03 (footnote omitted)(citations omitted). This passage appears to graft a functionality requirement onto rule 702, i.e., it appears to say that a physical object must "do" something related to the crime for the United States to be allowed to present expert testimony about the object. If so, Medina-Copete represents a departure from the prior cases, in which function was incidental to association, i.e., when some object or practice was a recognizable hallmark of a criminal organization, it was often because that object or practice aided the organization in the pursuit of its criminal goals, but what made the object or practice useful as evidence was the association — the fact that organization members use it and non-members do not — and not the function. After all, if a criminal organization used tools of the trade that had extremely high functionality in all aspects of the organization's criminal activity, but very little statistical association with the organization — e.g., cars, credit cards, or cellular telephones — such "tools" would provide weak evidence that the person on whom the tool was found is, in fact, a member of the organization.

If that reading is correct, and Medina-Copete grafts a functionality prerequisite onto law enforcement expert testimony, then the case effectively creates a separate and new tools-of-the-trade "doctrine." How the Tenth Circuit distinguished a Santa Muerte prayer card from the non-tool "gang-related items" referenced in the second block-quoted paragraph is unclear.9

Medina-Copete might not be about functionality or tools of the trade at all, however. After discussing tools of the trade, the Tenth Circuit went on to talk about how the Marshal that the United States had named as its expert witness was unreliable under Daubert, because his

Medina-Copete, 757 F.3d at 1103-04 (emphasis in both Medina-Copete and quoted source) (citations omitted)(quoting United States v. Holmes, 751 F.3d 846, 854 (8th Cir. 2014)(Kelly, J., concurring)).11 Whatever it stands for, Medina-Copete is an outlier in an otherwise consistent line of cases liberally permitting law enforcement expert testimony.12

The Tenth Circuit has spoken on the subject of law enforcement expert testimony since Medina-Copete, and the Tenth Circuit's most recent word on law enforcement expert testimony leaves little doubt as to the liberality of the standard to be applied. The new case, United States v. Vann, 776 F.3d 746 (10th Cir. 2015)(Tymkovich, J.), explicitly walks back the Tenth Circuit's earlier holding in Medina-Copete:

United States v. Vann, 776 F.3d at 759 (citations omitted).

United States v. Vann also provides a useful characterization of another recent Tenth Circuit case on the topic of law enforcement expert testimony, United States v. Kamahele, ascribing great importance to that case:

United States v. Vann, 776 F.3d at 758 (alteration in original)(citations omitted). It seems unlikely that these three requirements are sufficient, in every case, to render law enforcement expert testimony appropriate. United States v. Vann couples its characterization of United States v. Kamahele with the adages — applicable in all expert-witness context, and not just with law enforcement experts — that "the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination," United States v. Vann, 776 F.3d at 758 (alteration omitted)(emphasis in both United States v. Vann and quoted source)(quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 142 (1999)), and that "district courts [need not] extensively explain their reliability determinations," United States v. Vann, 776 F.3d at 758 (quoting United States v. Avitia-Guillen, 680 F.3d 1253, 1260 (10th Cir. 2012)).

2. The Special Dangers of Expert Testimony by Law Enforcement Officers.

Although the Tenth Circuit has been generally enthusiastic about law enforcement expert testimony, there are a number of ways in which it can run afoul of the rules of evidence. The leading case and most comprehensive case in outlining these dangers is United States v. Mejia, 545 F.3d 179, 188-93 (2d Cir. 2008)(Hall, J.)("Mejia"). In that case, the United States

Mejia, 545 F.3d at 186-88 (hearing transcript omissions in original)(footnote omitted). The Second Circuit had numerous qualms with this testimony:

Mejia, 545 F.3d at 190-94, 197 (citations omitted).

There are, thus, many different angles from which defendants can attack law enforcement officers' expert testimony, and equally many pitfalls into which district courts can fall in admitting such testimony. The Court can identify at least six such dangers.

First, as the officer's expertise narrows in scope from broad generalities about certain criminal practices — which are fixed in a meaning that transcends the case at hand, and about which the expert knew before his involvement in the case being tried — to practices of which the expert has learned only through his or her investigation of the instant case, there is the danger that the expert is cloaking percipient testimony in the garb of expert opinion. See Mejia, 545 F.3d at 190 ("As the officer's purported expertise narrows from `organized crime' to `this particular gang,' from the meaning of `capo' to the criminality of the defendant, the officer's testimony becomes more central to the case, more corroborative of the fact witnesses, and thus more like a summary of the facts than an aide in understanding them."). At the grand-jury stage, it is common for the United States to put on only a single witness — a case agent, who succinctly summarizes the case, relaying facts to the grand jury that are outside of the agent's personal knowledge but were transferred to the agent through hearsay. See United States v. Brito, 907 F.2d 392, 394 (2d Cir. 1990)("The government admits to a policy of using a single witness before the grand jury in narcotics cases where the defendant is already under arrest."). This practice may be acceptable at the charging stage; the judiciary long ago ceased guarding the grand jury's function as a shield against unjust prosecution, and the institution has largely been rendered a paper tiger in modern times. See United States v. Basurto, No. CR 13-0969 JB, 2015 WL 4635715, at *13 n.5 (D.N.M. July 29, 2015)(Browning, J.)("[T]he institution of the grand jury has decayed from its standing at the Founding as a meaningful shield from unjust prosecution to its modern status as an investigatory sword for prosecutors."). The expert-testimony rules are not an invitation to the United States to turn the jury trial into the same type of proceeding, wherein a single expert — whose expertise is really just in the case at hand — can serve as proof of the prosecution's entire case. To prevent this danger, the district court must limit the officer's testimony in three important ways. First, expert testimony is only proper if a typical juror would be unable to fully understand without expert assistance. See Fed. R. Evid. 702 advisory committee's notes to the 1972 proposed rule ("Whether the situation is a proper one for the use of expert testimony is to be determined on the basis of assisting the trier. . . . [The test is] `whether the untrained layman would be qualified to determine intelligently and to the best possible degree the particular issue without [the expert testimony].'" (citation omitted)); United States v. Amuso, 21 F.3d 1251, 1263 (2d Cir. 1994)("A district court may commit manifest error by admitting expert testimony where the evidence impermissibly mirrors the testimony offered by fact witnesses, or the subject matter of the expert's testimony is not beyond the ken of the average juror."); United States v. Montas, 41 F.3d 775, 784 (1st Cir. 1994) (disapproving of an expert's answer to the question of why smugglers would use false names — "`[w]ell that's obvious . . . to avoid being caught'" — because it was "well within the bounds of a jury's ordinary experience"); United States v. Rahm, 993 F.2d 1405, 1413 (9th Cir. 1993) (precluding expert testimony on "areas believed to be within the jurors' common understanding"). Second, the expert must be able to point to a foundation for his or her expertise that rests principally outside of the facts of the case being tried. See Fed. R. Evid. 702(d) (requiring that "the expert has reliably applied the principles and methods to the facts of the case" (emphasis added)); Mejia, 545 F.3d at 193 (holding that it is improper for an expert to "`interpret[] ambiguous slang terms' based on knowledge gained through involvement in the case, rather than by reference to the `fixed meaning' of those terms" (alteration in original) (quoting United States v. Dukagjini, 326 F.3d 45, 55 (2d Cir. 2002))). The officer cannot develop "expertise" from investigating a case — e.g., that when members of an organization refer to "haircuts" on the telephone, they are talking about drug deals — only to "apply" that supposed expertise at trial to prove the very same purported facts — that the organization's members were referring to drug deals when they used the term "haircuts" in wiretapped conversations — from which the officer derived the expertise. Using expert testimony in this circular fashion is misleading to the jury; the district court is, in effect, vouching for a fact witness' conclusions — and counsel's arguments — about what the term "haircut" means, by branding the witness an expert and thus suggesting that the witness' process for determining the term's meaning transcends the case at hand. Third, if a witness testifies as both an expert witness and a percipient witness, the district court should demarcate for the jury what portions of the testimony are expert opinion13 and what portions are fact testimony. See United States v. Lopez-Medina, 461 F.3d 724, 745 (6th Cir. 2006)("Because there was no cautionary jury instruction regarding the agents' dual witness roles nor a clear demarcation between their fact testimony and expert opinion testimony, we conclude that the district court committed an error that was plain or obvious in permitting the dual-role testimony.").

A second danger inherent in expert testimony by law enforcement officers is common to all situations where a witness' expertise is based on experience, rather than on scientific or technical principles. It is easy for an experience-based expert witness to pass off suspicion, speculation, and intuition as real expertise. See Joelle Anne Moreno, What Happens When Dirty Harry Becomes an (Expert) Witness for the Prosecution?, 79 Tul. L. Rev. 1, 30 (2004)("When an expert opinion is based on personal experience, opinions and conclusions derived from this experience are often personal, idiosyncratic, and subjective. . . . `[T]he practical result is that the [experience-based expert] witness is immunized against effective cross-examination.'" (footnote omitted)). To prevent this danger, the district court must vigilantly apply the rule 702 reliability standard to each opinion or assertion to which the defendant objects and, again, ensure that facts outside of the case at hand back the witness' expertise. See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (applying the rule 702 reliability standard to nonscientific expert testimony). Although expert witnesses generally need not disclose the bases of their assertions or opinions as they give them, See Fed. R. Evid. 705 ("Unless the court orders otherwise, an expert may state an opinion — and give the reasons for it — without first testifying to the underlying facts or data."), an expert's obligation to show his or her work by establishing legitimate bases for the testimony may be higher when the expertise is of an experiential nature, See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)(stating that district courts should not "admit opinion evidence that is connected to existing data only by the ipse dixit of the expert"); Erickson v. Baxter Healthcare, Inc., 131 F.Supp.2d 995, (N.D. Ill. 2001)(Bucklo, J.)("More than bald assertions of opinion without any support are required; this is no more than any rational person would require. . . . It would be unacceptable to cite no sources for statistical evidence in a scholarly work, and it is likewise unacceptable in an expert disclosure." (footnote omitted)). Cf. Olander v. Bucyrus-Erie Co., 187 F.3d 599, 608 (7th Cir. 1999)("[O]ne bald assertion is as good as another. . . .").

A third danger is that stray facts and background information are often more damaging in the context of law enforcement testimony than with other expert testimony. See Fed. R. Evid. 403. A forensic accountant off-handedly mentioning that an organization's practice of maintaining a bank account in the Cayman Islands is per se suspicious may be somewhat damaging, but a law enforcement officer testifying about how the defendant rose to his position within an organization by supporting the murder of the organization's former leader is likely to be damning. This observation is not so much a separate danger as it is a recognition that minor errors in admitting expert testimony that should have been excluded — errors that can happen in a matter of seconds in the courtroom — can render an entire trial unfair.

A fourth danger is that law enforcement experts who were also involved in the investigation of the case — the most dangerous kind — will often attempt to use profile evidence to bolster their conclusions about the defendant. "[A] profile is simply an investigative technique. It is nothing more than a listing of characteristics that in the opinion of law enforcement officers are typical of a person engaged in a specific illegal activity." United States v. Robinson, 978 F.2d at 1563. "A more tailored definition was offered in Florida v. Royer, 460 U.S. 491, 493 (1983), where drug courier profile was described as an abstract of characteristics found to be typical of persons transporting illegal drugs." United States v. Robinson, 978 F.2d at 1563 (internal quotation marks omitted). Although most "[c]ourts have condemned the use of profiles as substantive evidence of guilt," the Tenth Circuit has been consistently more permissive than most other Circuits in allowing such evidence. United States v. Robinson, 978 F.2d at 1563. In the first of its two major profile-evidence cases, the Tenth Circuit wrote:

United States v. McDonald, 933 F.2d 1519, 1563 (10th Cir. 1991). The Tenth Circuit continued this approach — effectively telling district courts not to worry about whether a given piece of evidence is profile evidence — through its second major profile-evidence case, and it remains unclear today whether and when "profile evidence" — if a given piece of evidence is agreed to be just that — is admissible in the Tenth Circuit. "In McDonald, we `reserv[ed] the question of whether expert testimony regarding profiles is — by itself — substantive proof of crime. . . .' We again decline to decide that matter, both because this was not evidence of a profile under the McDonald definition and because the expertise of this particular witness was necessary." United States v. Robinson, 978 F.2d at 1564 (omission in original). Although the Court does not allow the United States to use the term "profile" in front of the jury, nor has it ever excluded evidence or curbed testimony on the ground that it would constitute impermissible profile evidence. United States v. Goxcon-Chagal, 886 F.Supp.2d 1222, 1251 (D.N.M. 2012)(Browning, J.)("The United States should instruct [its witness], however, not to use the word profile to avoid the issue of profile evidence such that the jury would think about that issue."). See United States v. Mirabal, No. CR 09-3207 JB, 2010 WL 3894137, at *6-7 (D.N.M. July 31, 2010)(Browning, J.).

Fed. R. Civ. P. 703. "The expert may not, however, simply transmit . . . hearsay [or other inadmissible evidence] to the jury." Mejia, 545 F.3d at 197. This danger always exists with regard to expert witnesses, but it is especially great with law enforcement expert testimony, because — as the Court has already mentioned — the inadmissible facts on which law enforcement experts rely are often far more prejudicial to the defendant than those on which scientific and technical experts rely.

Sixth, and finally, there is something qualitatively different about law enforcement expertise from other forms of expertise that makes the Court uncomfortable. When an expert testifies about DNA left at a crime scene or an organization's bookkeeping, he or she does so in recognition of the fact that most jurors are inexpert in matters of molecular biochemistry or forensic accounting, and to aid them in understanding such evidence and making determinations well shy of the final determination of the defendant's guilt or innocence. Law enforcement officers, on the other hand, are experts in whodunit, and there is a danger that a jury will perceive their area of expertise as solving crimes and determining guilt or innocence. Juries — or at least individual jurors — are inexpert in making these determinations just as surely as they are in biochemistry and forensic accounting, but the Constitution nonetheless consciously vests the power to make these findings in the jury. See U.S. Const. art. III, § 2; id. amend. VI. Expert testimony by law enforcement officers can encroach not only on the jury's role, but on the role of counsel, as well. When the expert opines on the basis of "expertise" rooted in the facts of the case being tried, it is effectively arguing the case as a mouthpiece for counsel. It is inappropriate for an expert witness to bolster the credibility of another witness, and the Court finds this use of law enforcement expert testimony — which effectively serves to bolster counsel's arguments about how the jury should interpret the case's facts — reminiscent of, and analogous to, credibility bolstering.

Even if these dangers do not render a given opinion or piece of testimony per se inadmissible under rule 702, they contribute to its unfair prejudicial value, which the district court may determine substantially outweighs any probative value it might have. See United States v. Fosher, 590 F.2d 381, 383 (1st Cir. 1979)("Quite apart from questions of limited relevance and reliability, . . . the proffered expert testimony would create a substantial danger of undue prejudice and confusion because of its aura of special reliability and trustworthiness.").

LAW REGARDING RULE 16(b)(1)(A) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE

Rule 16(b)(1)(A) provides a "reciprocal discovery requirement" between the United States and a criminal defendant. United States v. Hardy, 586 F.3d 1040, 1043 (6th Cir. 2009). Rule 16(a)(1)(E) provides criminal defendants with a right to inspect and to copy documents and objects that are within the United States' possession, custody or control. See Fed. R. Crim. P. 16(a)(1)(E). Rule 16(a)(1)(E) provides:

Fed. R. Crim. P. 16(a)(1)(E). Once a defendant makes a request under rule 16(a)(1)(E), and the United States has complied with the request, rule 16(b)(1)(A) provides the United States with a right to inspect and to copy certain documents in the defendant's "possession, custody, or control," and that the defendant intends to use at trial during his or her case-in-chief. Fed. R. Crim. P. 16(b)(1)(A). Rule 16(b)(1)(a) specifically provides:

Fed. R. Crim. P. 16(b)(1)(A). Certain information, however, is not subject to disclosure under rule 16(b)(1)(A).

Fed. R. Crim. P. 16(b)(2). Rule 16(b)(2) is considered to be the "work product exception[] to the general discovery requirements." Fed. R. Crim. P. 16 advisory committee's notes (1975 enactment). See United States v. Fort, 472 F.3d 1106, 1123 (9th Cir. 2007)("Rule 16 of the Federal Rules of Criminal Procedure recognizes the work product privilege." (alterations omitted)(quoting United States v. Fernandez, 231 F.3d 1240, 1247 (9th Cir. 2000)).

A defendant's duty to disclose under rule 16(b) does not arise until the United States first complies with the defendant's request under rule 16(a). See United States v. McVeigh, 954 F.Supp. 1141, 1149 (D. Colo. 1997)("Compliance with such a request [under rule 16(a)] triggers the defense obligation to provide reciprocal discovery under Rule 16(b)"). Once a party has a duty to disclose under rule 16(a) or rule 16(b), that duty continues throughout the case as additional evidence is discovered. See United States v. McVeigh, 954 F. Supp. at 1149 (citing Fed. R. Crim. P. 16(c)). Rule 16(c) provides:

Fed. R. Crim. P. 16(c). A defendant's obligations under Rule 16(b)(1)(A) apply only to evidence that he or she "intends to use . . . in the defendant's case-in-chief at trial." Fed. R. Crim. P. 16(b)(1)(A). In United States v. Harry, No. CR 10-1915, 2014 WL 6065705 (D.N.M. Oct. 14, 2014)(Browning, J.), the Court defined the term "case-in-chief" to mean the part of a trial during which a party presents evidence to support a claim or defense, and after which it rests. 2014 WL 6065705, at *6 ("The Court concludes that rule 16(b)(1)(A)'s drafters intended for the word `case-in-chief' to have a more restrictive meaning — the more traditional `part of a trial in which a party presents evidence to support the claim or defense.'" (quoting Black's Law Dictionary 224 (9th ed. 2009))). The Court, thus, concluded that evidence used in a party's case-in-chief "refers to evidence that a party presents between the time that the party calls its first witness and the time the party rests," and not to evidence that a party introduces while cross-examining the other party's witness. 2014 WL 6065705, at *10.

If a defendant refuses to disclose evidence required under rule 16(b)(1)(A), the trial court may order the defendant to disclose the evidence or prohibit the defendant from introducing the undisclosed evidence at trial. See Fed. R. Crim. P. 16(d)(2). See also United States v. Rodriguez Cortez, 949 F.2d 532, 546 (1st Cir. 1991)("It is within the trial court's discretion to exclude evidence for non-compliance with 16(b)(1)(A).").

ANALYSIS

The Court will grant in part and deny in part the United States' requests in the Motion to Compel, and will deny L. Chapman's requests in the Response. The Rapoport Notice gives the United States insufficient notice to prepare for trial. The Court will, thus, order L. Chapman to disclose every diagnosis about which Dr. Rapoport will testify. Because the United States may have alleviated L. Chapman's need to conduct a voir dire, the Court will deny L. Chapman's request without prejudice to renew after he reviews the articles on which Starr relied. Finally, L. Chapman does not present any new arguments, law, or evidence to make the Court question its ruling in the MOO, and the Court remains confident that its ruling is correct. It will, accordingly, deny L. Chapman's request to exclude Starr's testimony.

I. THE COURT WILL REQUIRE L. CHAPMAN TO PROVIDE THE UNITED STATES WITH A LIST OF DIAGNOSES ABOUT WHICH RAPOPORT WILL TESTIFY.

The Court will require L. Chapman to provide the United States with a list of diagnoses about which Rapoport will testify. Rule 16(a)(1)(G) states:

Fed. R. Crim. P. 16(a)(1)(G). Once a defendant makes a request under rule 16(a)(1)(G), rule 16(b)(1)(C) places an obligation on the defendant to provide the United States with similar information concerning his or her experts.

Fed. R. Crim. P. 16(b)(1)(C).

Here, the Order, filed January 28, 2014 (Doc. 9)("Discovery Order"), states that, unless Chapman filed a waiver within seven days, he is deemed to have requested all discovery listed in rule 16, triggering rule 16's reciprocal discovery obligations. Discovery Order at 1. In conformance with rule 16(c), See Fed. R. Crim. P. 16(c) (discussing the continuing discovery duty), the Discovery Order places on the parties a continuing duty to disclose, see Discovery Order at 4. L. Chapman did not file a waiver to any discovery obligations. Consequently, under the Discovery Order, he and the United States are under rule 16's reciprocal discovery obligations, which include expert reports.

In the Motion to Compel, the United States asks the Court to compel L. Chapman to provide it with a report or a summary of Rapoport's testimony. See Motion to Compel at 4. L. Chapman provided the United States and the Court with the Rapoport Letter, in which Dr. Rapoport states that there is not enough information to diagnose D. Chapman and that six different diagnoses could possibly explain her behavior. See Rapoport Letter at 1-2. At the October 28, 2014, hearing, L. Chapman stated that Dr. Rapoport would testify that a number of conditions, other than reacting to a traumatic experience, could explain why D. Chapman injured herself. See Oct. 28, 2014, Tr. at 36:16-20 (Robert). The United States said that this information was still insufficient without knowing what disorders Dr. Rapoport will say may be responsible for D. Chapman's conduct. See Oct. 28, 2014, Tr. at 36:22-6 (Mott). The Court agrees with the United States.

Without knowing what other disorders about which Dr. Rapoport will testify, the United States cannot properly respond to his testimony and cannot properly cross-examine him. As rule 16's advisory committee notes show, the reciprocal expert discovery rules are intended to allow the other side to adequately prepare for trial. See Fed. R. Crim. P. 16, Advisory Committee Notes to 1993 Amendments ("This provision is intended to permit more complete pretrial preparation by the requesting party. For example, this should inform the requesting party whether the expert will be providing only background information on a particular issue or whether the witness will actually offer an opinion."). The United States cannot fully prepare for Dr. Rapoport's testimony if it only knows that he will testify about five possible conditions without knowing what those conditions are. At the October 28, 2014, hearing, the United States said that, if L. Chapman provides it with a list of every condition about which Dr. Rapoport will testify, it will have sufficient information to prepare for trial and to cross-examine Dr. Rapoport. See Oct. 28, 2014, Tr. at 38:9-17 (Mott, Robert, Court). Consequently, the Court will order L. Chapman to provide the United States with a list of the conditions about which Dr. Rapoport will testify rather than excluding Dr. Rapoport's testimony under rule 16(d)(2).

II. THE COURT WILL DENY L. CHAPMAN'S REQUEST FOR VOIR DIRE WITHOUT PREJUDICE TO RENEW THE REQUEST AFTER HE REVIEWS THE ARTICLES THAT STARR PROVIDED.

The Court will deny L. Chapman's request for voir dire without prejudice to renew the request after he reviews the articles that Starr provided. At the October 28, 2014, hearing, after the United States said that it would provide L. Chapman with every article on which Starr relied, the Court asked L. Chapman whether he had sufficient information or whether he still believed that voir dire was necessary. See Oct. 28, 2014, Tr. at 46:18-23 (Mott, Court). L. Chapman said that he thought that he would still need to conduct voir dire of Starr, but that he could not be sure, because he had not yet read the articles that the United States provided him. See Oct. 28, 2014, Tr. at 46:24-47:21 (Converse, Court). Because the articles may have alleviated L. Chapman's need to conduct a voir dire examination of Starr, the Court will, at this time, deny L. Chapman's request without prejudice to renew the request after he reviews the articles that Starr has listed. If, however, L. Chapman reviews the articles and decides that he still needs to conduct a voir dire examination, the Court will permit him to renew his request, and the Court will consider it at that time.

III. THE COURT STANDS BY ITS RULING IN THE MOO.

In the Response — which L. Chapman filed before the Court issued the MOO, but after the Court ruled on the Motion to Exclude at the September 12, 2014, hearing — L. Chapman asks the Court to reconsider its ruling on the Motion to Exclude. See Response at 1. In the Response, L. Chapman's main argument for exclusion is that, because D. Chapman has not been examined or diagnosed, Starr's testimony is speculation. See Response ¶¶ 9-15, at 4-7. He also argues that the Court should exclude Starr's testimony as too unfairly prejudicial under rule 403. See Response ¶ 16, at 7. L. Chapman does not, however, elaborate on his rule 403 argument, other than stating: "As argued before." Response ¶ 16, at 7. In supporting the Motion to Exclude, L. Chapman raised both of these arguments. At the September 12, 2014, hearing, he argued that Starr's testimony is too speculative, because she will merely testify why D. Chapman may have injured herself without being able actually diagnose her. See Sept. 12, 2014, Tr. at 14:19-15:7 (Robert); id. at 16:2-10 (Robert); id. at 29:9-32:6 (Robert, Court). In the Motion to Exclude, L. Chapman argued that rule 403 requires the Court to exclude Starr's testimony. See Motion to Exclude ¶ 8, at 4. The Court addressed both of these issues in the MOO.

In the MOO, the Court reasoned that Starr's testimony that D. Chapman's conduct was consistent with the conduct of a victim of a traumatic event was appropriate, even though Starr could not conclude that D. Chapman was the victim of a traumatic event. The Court explained:

MOO at 40-44 (footnote omitted).

While L. Chapman calls his request a request to renew his prior motion, it is more like a motion to reconsider. He is renewing the motion to ask the Court to reconsider its original ruling. In a recent opinion, the Court listed three factors that it should use in considering the standard to use in addressing a motion to reconsider:

Anderson Living Trust v. WPX Energy Prod., LLC, No. CIV 12-0040 JB/KBM, 2015 WL 4040616, at *21-22 (D.N.M. June 24, 2015)(Browning, J.). Under this framework, the Court will decline L. Chapman's invitation to give a full, in-depth new look into its prior ruling.

The first factor — how thoroughly the Court considered the challenged issue — weighs heavily against giving L. Chapman's request. The Court thoroughly considered the issue whether Starr could properly testify about self-harm — without diagnosing D. Chapman — and the Court concluded that, under Tenth Circuit precedent, she could. Indeed, it is better that she not testify why D. Chapman cut herself — the only reason an individual diagnosis would be aggression — because she likely could not get by Daubert v. Merrell Dow Pharmaceuticals, Inc. with such an opinion; it is better that she simply inform the jury that a person can self-mutilate only once, something most people do not know or would not guess. The Court also considered the prejudicial effect of the testimony and its probative value. Moreover, unlike a motion to renew or reconsider that merely asks the Court to alter a portion of an opinion, L. Chapman asks the Court to change its entire conclusion that is the subject of a forty-eight page opinion. The Court thoroughly considered the issue and concluded that Starr's testimony is admissible.

The second factor — the cases' overall progress and posture — weighs slightly in favor of the Court not altering its prior decision. The case is on the eve of trial. L. Chapman filed the Response two days before trial, and the Court held the October 28, 2014, hearing on the day before trial. While the United States may be able to try this case without Starr's testimony, it would likely need to craft a new trial strategy on the night before trial.

The third factor — whether there is new law or evidence, and whether there is a clear indication that the Court erred — also weighs heavily in favor of the Court giving a less intense review of its prior decision. L. Chapman does not direct the Court to a case or statute that was decided or passed in between the time the Court ruled on the Motion to Exclude and the time L. Chapman filed the Response. Similarly, while L. Chapman filed the Rapoport Notice after the Court ruled on the Motion to Exclude, the disclaimer is not new evidence. In the MOO, the Court said that, if Starr testifies, she must make clear to the jury that a traumatic event is just one of several possibilities that can account for her self-injuries.

MOO at 44. Furthermore, because L. Chapman filed the Rapoport Notice before the Court issued the MOO, the Court considered it in its ruling and concluded that Rapoport's proposed testimony is consistent with the Court's holding that Starr's proposed testimony had an established scientific basis.

MOO at 46-47 (footnote omitted). Finally, L. Chapman does not present any evidence, law, or argument to show that the Court clearly erred in its decision.

L. Chapman does not present any new evidence, law, or arguments to make the Court question an issue that it thoroughly analyzed, and, after reviewing the MOO, the Court believes that its ruling on the Motion to Exclude is correct. Starr's testimony is not too speculative, and she does not need to definitively diagnose D. Chapman before her testimony is helpful to the jury. Furthermore, because of the probative value that her testimony has in assisting the jury to understand the reasons behind D. Chapman's conduct, the danger of unfair prejudice does not substantially outweigh its probative value. Accordingly, the Court will not alter its ruling on the Motion to Exclude.

IT IS ORDERED that: (i) the requests in the United States' Motion to Compel Supplemental Expert Witness Notice and to Exclude Defense Expert From Offering Opinion as to "Unfounded or Speculative Evidence," filed October 22, 2014 (Doc. 57), are granted in part and denied in part; and (ii) the requests in Mr. Chapman's Response to the Prosecution's Motion to Compel [Doc. 57], Renewal of Motion to Preclude Government's Expert [Doc. 32] and Request to Conduct Voir Dire Examination of Prosecution's Expert Prior to Testimony Before Jury, filed October 27, 2014 (Doc. 67), are denied. The Court will order Defendant Leslie Chapman to provide Plaintiff United States of America with a list of the psychological conditions about which Elliot J. Rapoport, Ph.D., will testify. For L. Chapman's request to conduct a voir dire examination of Gail Starr before trial, the Court will deny the request without prejudice to renew after L. Chapman has reviewed the articles that Starr provided. Finally, the Court will not alter its ruling in the Memorandum Opinion and Order, filed October, 27, 2014 (Doc. 70).