The Volokh Conspiracy

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Volokh Conspiracy

Taylor Swift, butt-touching, a gender studies professor and evidence law—all in one court decision


Taylor Swift performs on Oct. 22, 2016, in Austin. (Darron Cummings/Associated Press)

An interesting federal district court opinion handed down last week in Mueller v. Swift:

Plaintiff [David Mueller] worked as an on-air radio personality for a Denver area radio station, KYGO. On June 2, 2013, he attended a backstage "meet and greet" preceding a concert performed at Denver's Pepsi Center by [Taylor] Swift. Ms. Swift alleges that during a staged photo opportunity at that event, Plaintiff purposefully and inappropriately touched her buttocks, while Plaintiff denies having done so. After KYGO was informed of Ms. Swift's accusation, Plaintiff was terminated from his job, and this lawsuit followed.

(From an earlier opinion: The plaintiff is suing for tortious interference with an employment contract, which is connected to a defamation theory; Swift is countersuing for assault and battery.)

In the course of litigation, Swift and her co-defendants have disclosed Dr. Lorraine Bayard de Volo to testify as an expert witness … Plaintiff's present Motion seeks to exclude portions of her proposed testimony pursuant to [Federal Rules of Evidence] Rule 702 and other evidentiary authorities.

As set out in her written disclosure, Dr. Bayard de Volo is the Chair and Associate Professor of Women and Gender Studies at the University of Colorado-Boulder. She has a Ph.D. in political science and a graduate certificate in women's studies, and has had 20 years of teaching and research experience in the field of gender and violence. Her Report discloses the following … summary opinion[] related to this case [a separate opinion was not at issue, so I omit it -EV]:

Sexual harassment and assault are fundamentally motivated by the perpetrator's perceived need to assert power and to protect the perpetrator's status. Throughout David Mueller's pleadings in this lawsuit and his deposition testimony, he indicated that even before he met Ms. Swift, he felt his job security was threatened, his identity as a radio personality was threatened, and his masculinity was threatened. This perfect storm of threats to Mr. Mueller's perceived status is consistent with the well-settled, academically-accepted, perceived threats to status that motivate a man to commit sexual harassment or assault. …

Dr. Bayard de Volo's Report … explains, in part, that in her view there is a professional or research consensus "that sexual harassment and sexual assault (including inappropriate physical contact) are fundamentally motivated by power and protection or enhancement of the aggressor's status. In cases of men targeting women, it is an assertion of men's gender-based social power and most typically targets women who challenge men's status in some manner."

Dr. Bayard de Volo's Report … concludes that on June 2, 2013, Plaintiff "faced an accumulation of perceived threats to his status" that were consistent with the kinds of "threats to status that … motivat[e] sexual harassment and sexual assault." Describing this "accumulation of threats" in greater detail, her Report describes, for example:

  • "Threats to job status," describing evidence that, in Dr. Bayard de Volo's opinion, shows that Plaintiff "perceived significant tensions with his [boss] at KYGO, Eddie Haskell";
  • "Threats to status as a radio personality," describing Dr. Bayard de Volo's opinion that Plaintiff "perceived that he did not receive from Ms. Swift and the Swift tour personnel the professional respect he thought he deserved," because he "was not recognized as a radio personality during the meet-and-greet event" and "expected a certain level of treatment from Ms. Swift … that he did not receive";
  • "Threats to masculine status," offering Dr. Bayard de Volo's opinion that "dynamics with [Plaintiff's] girlfriend … exacerbated his annoyance and perception of emasculation," in part based on Plaintiff's testimony suggesting that when they met at the "meet and greet," Ms. Swift "was really excited about [his girlfriend]," while Plaintiff "felt like [he] was invisible."

In sum, Dr. Bayard de Volo opines that Plaintiff's "testimony reveals that he was frustrated … as neither his boss, the Swift team, or in the end, Ms. Swift herself, would acknowledge him in a way that would confirm his perceived elevated status as a radio show host," and that "his stated perception of events and his view of his own status is consistent with the circumstances under which sexual aggressors would commit unwanted sexual contact, such as grabbing a woman's bottom." She also opines that Plaintiff's "testimony and pleadings … indicate his belief that unwanted sexual contact is something that men in radio can get away with," for several reasons, including that improper touching might be viewed as "his prerogative as a radio host who regularly met with famous women."


A district court must act as a "gatekeeper" in admitting or excluding expert testimony. Admission of expert testimony is governed by Rule 702, which provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

The proponent of the expert testimony bears the burden of proving the foundational requirements of Rule 702 by a preponderance of the evidence.

While an expert witness's testimony must assist the jury to be deemed admissible, it may not usurp the jury's fact-finding function. The line between what is helpful to the jury and what intrudes on the jury's role as the finder of fact is not always clear, but it is well-settled that "[a]n opinion is not objectionable just because it embraces an ultimate issue."

Ultimately, "the rejection of expert testimony is the exception rather than the rule." "[T]he trial court's role as gatekeeper is not intended to serve as a replacement for the adversary system … . Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence."

However, in addition to analysis under Rule 702, an expert's proposed testimony still must be relevant and otherwise admissible. To be relevant, expert testimony must "logically advance[ ] a material aspect of the case" and be "sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute."

Furthermore, "[e]xpert testimony, like any other evidence, is subject to exclusion if it fails the Fed. R. Evid. 403 balancing test," that is, if the probative value of the expert's testimony would be "substantially outweighed by a danger of … unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence."


… B. Rule 702(a) Analysis

… Dr. Bayard de Volo's … opinions do not explain evidence which will be before the jury that it otherwise could not understand, such as drug paraphernalia, gang practices, or some technical matter. The jury will have ample direct and readily comprehensible evidence from which to resolve the central factual question of whether Plaintiff did or did not improperly touch Ms. Swift. The jury will have a much better opportunity than Dr. Bayard de Volo herself has had to draw their own conclusions of whether Plaintiff actually perceived the kinds of threats to his masculinity that her Report describes and, if so, how he responded in the event.

Thus, applying the common sense inquiry required under Rule 702(a), … the Court concludes that Dr. Bayard de Volo's opinion would do little, if anything, to assist the jury in understanding the case and the evidence material to the central factual dispute in these proceedings. Whether the jury finds, based on the testimony and other evidence, that Plaintiff did improperly touch Ms. Swift, or finds that he did not, the questions of what motivated him to do so, including any perceived threats to his purported status as a powerful male, will be beside the point.

If anything, this testimony would be unhelpful to the jury because it would tend to complicate the otherwise straightforward question of "what happened" with issues of why it happened, and whether what occurred in this case was or was not consistent with alleged broader societal patterns of men reacting in physically threatening ways to powerful women who threaten their masculinity. Thus the Court finds that Dr. Bayard de Volo's opinion would do little to assist the jury in resolving the disputed issues in this case.

C. Rule 403 Analysis

Even more conclusively, however, the Court finds that the probative value of Dr. Bayard de Volo's opinion would be substantially outweighed by the significant risks of prejudice, confusion of the issues, and misleading the jury. As a consequence, the professor's [opinion] must be excluded under Federal Rule of Evidence 403, irrespective of whether or not it would otherwise be admissible under Rule 702.

The explanation of the unduly prejudicial nature and the limited probative value of the expert testimony at issue in Robbie, [a California precedent,] is persuasive on this point. In Robbie, the defendant was charged with acts of sexual assault and contested, essentially, whether the sexual contact had been consensualThe prosecution called an expert witness to testify, in effect, that the "defendant's conduct was consistent with being a rapist." The expert "was never directly asked to opine whether defendant was a sex offender," but did opine that specific aspects of his alleged conduct were common in instances of rape, and that the combined circumstances of the case reflected "the most common type of behavior pattern" in sex offenses.

On appeal, the conviction was reversed because admission of this expert testimony was held to constitute reversible error, given the degree of prejudice it created. The Court explained the problems with this testimony, in part, as follows:

[P]rofile evidence is inherently prejudicial because it requires the jury to accept an erroneous starting point in its consideration of the evidence. We illustrate the problem by examining the syllogism underlying profile evidence: criminals act in a certain way; the defendant acted that way; therefore, the defendant is a criminal. Guilt flows ineluctably from the major premise through the minor one to the conclusion. The problem is the major premise is faulty. It implies that criminals, and only criminals, act in a given way. In fact, certain behavior may be consistent with both innocent and illegal behavior, as the People's expert conceded here…. The jury was invited to conclude that if defendant engaged in the conduct described, he was indeed a sex offender.

The Robbie court also later reiterated that such evidence should be excluded when it "improperly invite[s the jury] to conclude that, because the defendant manifested some characteristics, he committed a crime," and is "offered to establish a stereotype then condemn the defendant for fitting it." …

Dr. Bayard de Volo's opinion—in effect that she believes Plaintiff felt threatened and that committing an act of assault because of that perception would be consistent with broader patterns of assault—creates a very substantial risk of prejudice against Plaintiff and of confusing the issues at trial. Her opinion would be tantamount to characterizing Plaintiff as someone who had the motives and characteristics typical of a perpetrator of sexual assault. Her testimony on this topic would also risk creating tangential and prejudicial disputes at trial, such as whether Plaintiff did or did not feel "threats to his masculinity," and raising inflammatory and emotional issues regarding the extent and patterns of sexual assault and violence against women as a whole.

All of this would lead the trial astray from its central purpose, that is, resolving an individual dispute between individual parties, based on the facts and evidence of that dispute. Cf. Fed. R. Evid. 404, Advisory Committee Notes to 1972 Proposed Rule ("Character evidence is of slight probative value and may be very prejudicial. It tends to distract the trier of fact from the main question of what actually happened on the particular occasion. It subtly permits the trier of fact to reward the good man and to punish the bad … despite what the evidence in the case shows actually happened.").

On the other hand, in part for the reasons explained in Robbie, the potential probative value of Dr. Bayard de Volo's opinion as to matters actually in dispute (i.e., "what actually happened") is slight. Coming from an expert with no personal knowledge of whether Plaintiff did or did not improperly touch Ms. Swift, it would add very little to the other evidence which the jury will hear. Ultimately, the existence of broader social patterns has little to do with how the parties actually acted, or failed to act, on the date in question. Cf. Robbie (expert's testimony "implie[d] that criminals, and only criminals, act in a given way. In fact, certain behavior may be consistent with both innocent and illegal behavior.").

In sum, the Court holds that Ms. Bayard de Volo's "[opinion]" (including with the analysis underlying it, is also inadmissible under Rule 403, because its limited probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, and/or misleading the jury.

[Footnote moved: The Court has some doubts that Dr. Bayard de Volo had sufficient basis and qualifications to reach the conclusions she did regarding what threats Plaintiff perceived. She is not trained in psychology and has not interviewed Plaintiff. She relied on assorted excerpts from his deposition testimony but also very substantially on a pleading written by Plaintiff's lawyer and crafted to advance his legal claims in this litigation. Plaintiff's pleadings of course are not evidence and do not establish any facts, and it is doubtful what conclusions regarding Plaintiff's perceived threats can be fairly drawn from materials prepared in litigation by his lawyer years after the events in question. Since Plaintiff does not argue this issue, the Court does not further address it.]

When evidence should be excluded from the jury often raises interesting and difficult questions, partly because many inferences are potentially rational but might be seen as too tenuous. Thus, for instance, though the court argued that "the otherwise straightforward question of 'what happened' " should not be complicated "with issues of why it happened," whether a person has a motive to do something is often relevant to deciding whether he indeed did it. (Motive alone, of course, isn't sufficient evidence to prove what someone did, but it may still be a relevant part of the evidence that the jury should consider.) On the other hand, the rules of evidence provide that not all relevant evidence is admissible, but some may be excluded because it's unduly confusing or prejudicial. So I thought I'd pass along the opinion, and leave it to you to evaluate it for yourselves.