Whether the Seventh Circuit applied the wrong standard of review and erroneously shifted the burden of proof by failing to review the Daubert error de novo, by considering the error as if it were a simple evidentiary issue and by requiring the Petitioners to show prejudice, thereby denying them a fair trial in violation of due process and in violation of their rights under the Fifth Amendment

QUESTION PRESENTED A government witness who testifies as both an investigative fact witness and as an expert witness, pursuant to Rule 702 of the Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), provides the fact finder with “dual-role” testimony. When dual-role testimony is proffered, a trial court’s gatekeeping function is to police the admission of this inherently confusing testimony. While this Court has not yet established a uniform standard to govern the presentation of dual-role testimony, the district courts in the Seventh Circuit perform their gatekeeping function by utilizing the precautions articulated in United States v Jett, 908 F.3d 252 (7% Cir. 2018). In this case, after acknowledging that the district court failed to require the government to consistently distinguish between those questions calling for the witness’ observations and those calling for his expert opinion and, further, failed to properly instruct the jury as to how to receive and weigh the evidence, the Seventh Circuit found the error to be harmless and affirmed the convictions of each Petitioner. The question presented is whether the Seventh Circuit applied the wrong standard of review and erroneously shifted the burden of proof by failing to review the Daubert error de novo, by considering the error as if it were a simple evidentiary issue and by requiring the Petitioners to show prejudice, thereby denying them a fair trial in violation of due process and in violation of their rights under the Fifth Amendment.