United States v. Heinrich, 971 F.3d 160 (3d Cir. 2020). In this appeal, defendant entered a conditional guilty plea to the production of child pornography. He preserved the right, however, to appeal the exclusion of expert testimony that he sought to present. Chief Judge Smith’s opinion for the Third Circuit today addressed that issue.
A single paragraph of the opinion contained the entire relevant procedural history. “After a pretrial hearing on the applicability of [Evidence] Rule 704(b), the District Judge’s law clerk conducted a telephonic status conference, ‘advis[ing counsel] that the court was intending to grant the government’s motions to exclude defendant’s expert testimony.’ The law clerk explained that the basis for the exclusion was Rules 403 and 704(b) and that a written opinion would be forthcoming. No opinion or order was ever docketed. Notably, the District Judge did not participate in the telephone status conference. The call went unrecorded and has not been transcribed.” Elsewhere, Chief Judge Smith observed that the call lasted 75 minutes.
Chief Judge Smith noted that the abuse of discretion standard applied to the exclusion of expert evidence. Excluding evidence under Rule 403 requires a balancing of the evidence’s probative value against its unfairly prejudicial effect. The Third Circuit, Chief Judge Smith said, has a “strong preference” that a District Judge “explicitly engage in some 403 balancing on the record.” When that does not occur, the Third Circuit can choose to decide that the balancing was done implicitly, or do the balancing itself, or decline to do the missing balancing.
The panel declined to assume that the District Court had done the balancing or to do the balancing itself. Though Chief Judge Smith gave several reasons for that, the most important one was that “there simply could not have been a [reviewable] exercise of discretion here because the District Judge failed to issue any ruling excluding either the proposed expert report or any testimony.”
Some judicial powers are delegable to a law clerk, a “judicial adjunct.” But “[p]roblems arise when a law clerk engages– whether through his own initiative or at the behest of his or her judge– in judicial tasks that are non-delegable.” Since the District Judge did not participate in the telephone conference, and no formal ruling was ever docketed, the panel was ‘left in the unenviable position– indeed, impossible position– of attempting to review an adjunct-presented non-ruling [on Rule 403] that caused the Defendant to plead guilty rather than proceed to trial.”
For similar reasons, the Third Circuit declined to try to perform “a de novo Rule 704(b) analysis.” Instead, the guilty plea was vacated and the matter was remanded for the District Court to make “an explicit ruling … accompanied by a detailed memorandum opinion … setting forth the Court’s findings and conclusions” on the motion to exclude evidence.