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- ilnd;;1:08-cr-00424_de48 RegisterActionDate "2009-06-23" @default.
- ilnd;;1:08-cr-00424_de48 RegisterActionDescriptionText "MINUTE entry before the Honorable Elaine E. Bucklo:The government's motion to strike the expert testimony of William Thullen is granted as stated in this order. The government objects to his proposed testimony about what the cashed checks were to be used for because it is based on the hearsay statements to him of the defendant. While defendant is partially correct in argument that an expert is allowed to rely on hearsay in forming his opinions, there are two caveats: Fed. R. Evid. 703 requires that those hearsay facts upon which the expert can rely must be "of a type reasonably relied upon by experts in the particular field in forming opinions" and the facts or data that are otherwise inadmissible "shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect." In this case, it is not really clear how much of the opinion would be expert opinion as opposed to reciting "facts" but at any rate the facts as disclosed in the opinion are that the checks were used to pay payroll. That statement comes from the defendant. It is hearsay, and whether or not the statements, explaining checks and certain records, are sufficient to be relied upon by the expert in forming his opinion, it does not meet the second part of the test, that is, it cannot be disclosed to the jury by this witness because the probative value is substantially outweighed by the prejudicial effect on the government, which could not cross examine the defendant about the statement. I am not barring the accountant from all testimony, if a proper foundation is laid and the testimony is relevant. For example, if there is admissible evidence regarding the purpose for which the checks were used, an accountant could testify (assuming the facts support the testimony) that the tax returns matched the amount claimed to have been paid for payroll, which matched the amounts cashed each week, if the purpose was to try to show that the purpose in cashing the checks was not to structure payments but to make payroll. While that still doesn't show why two checks apparently were cashed each week, one just under the reportable amount, with a second smaller one shortly thereafter, a defendant is entitled to present admissible evidence on his theory of defense. Mailed notice (mpj, ) (Entered: 06/23/2009)" @default.
- ilnd;;1:08-cr-00424_de48 AdministrativeID "49" @default.