must have had a pre-existing intent that was independent of the Church's coercive persuasion. Exactly when the defendant joined the Church of Scientology is disputed by the parties. Because this is an issue of fact for the jury to consider, the government's argument fails.
Independent of the government's last argument, as already indicated the Court holds that evidence of defendant's diminished capacity is inadmissible in this case. Defendant's proffered testimony negating the element of specific intent relates exclusively to alleged influence techniques brought to bear upon him by the Church of Scientology, which is an aspect of thought reform theory that the Court has deemed inadmissible under the Frye standard. To the extent that the decisions in this Circuit in United States v. Frisbee and United States v. Twine permit the jury to hear evidence of diminished capacity, they do not apply to the facts of this case. These cases do not alter the admissibility standards set forth in Rule 702 of the Federal Rules of Evidence. Even if the proffered testimony on diminished capacity in this case was admissible under Rule 702, the Court would heed the admonishment in Frisbee that "expert testimony that is unduly confusing, misleading, or repetitive or that will not be of assistance to the jury in determining the issue of specific intent will be excluded." 623 F. Supp. at 1224. For all the foregoing reasons, the Court excludes the proffered testimony relating to defendant's diminished capacity.
V. EXPERT QUALIFICATIONS
The Ninth Circuit has interpreted Frye to require psychiatric testimony to come from a qualified expert. United States v. Amaral, 488 F.2d 1148, 1153 (9th Cir. 1973). The government does not challenge the qualifications of Dr. Singer. The Court therefore only addresses the issue of whether or not Dr. Ofshe is qualified to testify regarding how external influences from the Church of Scientology affected defendant's mental state at the time of the alleged offenses.
Federal Rule of Evidence 702 states that only witnesses with the requisite "knowledge, skill, experience, training, or education" may testify as an expert. Dr. Ofshe is a university sociology professor who teaches graduate and undergraduate level courses on the subject of thought reform. He has no expertise in forensic psychiatry or psychology. Because Dr. Ofshe is not a mental health professional, under Rule 702 he cannot testify as to whether or not defendant suffered from a severe mental disorder.
Defendant seeks to avoid this evidentiary bar by offering Dr. Ofshe as an expert in the process of thought reform. Defendant contends that because thought reform represents a hybrid area, the Court should permit testimony by a social psychologist to complement and provide foundational support for Dr. Singer's ultimate opinion. The Court disagrees. Even if collateral evidence may be admissible in some cases where an expert bases an opinion upon assumptions of fact provided by such evidence, it is clearly not admissible here, where the ultimate expert opinion itself is inadmissible.
In addition, Dr. Ofshe would not be permitted to testify even if Dr. Singer was allowed to base her opinion on thought reform theories. Dr. Ofshe's proffered testimony provides his conclusions as to (1) how the Church of Scientology uses influence techniques, and (2) the impact that these techniques have on church members, including the defendant. A general discussion of the former topic is not relevant to this case. As to the latter topic, Dr. Ofshe is no more qualified to diagnose the state of mind of church members en masse than he is to diagnose the defendant's mental state.
As a final matter, Dr. Ofshe's general description of the Church's practices has a probative value which is substantially outweighed by its danger of unfair prejudice and would mislead and confuse the jury. Accordingly, this aspect of his proffered testimony must be excluded under Federal Rule of Evidence 403.
The Court finds that Dr. Ofshe is not qualified to testify as an expert witness on defendant's mental state, nor is his proposed testimony regarding the conduct of the Church of Scientology relevant or admissible on the issues of specific intent and insanity in this case. The Court makes these findings independent of its ruling that Dr. Ofshe's theories on thought reform are not generally accepted within the meaning of the Frye test. On all of these grounds, Dr. Ofshe's proposed testimony is excluded in its entirety.
For all the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART the government's motion to exclude the proffered psychiatric testimony of Dr. Singer and Dr. Ofshe on the subject of thought reform. The Court's rulings are summarized as follows:
1. The government's motion to exclude the expert testimony of Dr. Richard Ofshe is GRANTED, on the grounds that Dr. Ofshe is not a mental health professional, his testimony is not relevant to the issues, his theories regarding thought reform are not generally accepted within the scientific community, and his testimony is inadmissible under Federal Rule of Evidence 403.
2. The government's motion to exclude the expert testimony of Dr. Margaret Singer is GRANTED IN PART and DENIED IN PART. As a qualified mental health professional, Dr. Singer may testify and give her opinion as to whether or not the defendant was suffering from a mental defect at the time of the events charged. Dr. Singer's testimony, however, is limited by the Insanity Defense Reform Act of 1984. Pursuant to this Act, Dr. Singer cannot support her opinion regarding defendant's sanity with testimony that involves volitional defects, as opposed to cognitive defects. In addition, Dr. Singer cannot support her opinion with testimony that involves thought reform, because the Court finds that her views on thought reform, like Dr. Ofshe's, are not generally accepted within the scientific community.
IT IS SO ORDERED.
DATED: April 13, 1990.
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