of A Judge's Deskbook on the Basic Philosopies and
Methods of Science,
by Shirley A. Dobbin, Ph.D, and Sophia I. Gatowski, Ph.D
The Judicial Role in Evidentiary Decision-Making
Until recently, the criteria for admissibility of scientific evidence in the U.S. federal system was guided largely by the Frye(1) decision, which emphasized the acceptance of the proffered theory or explanation by the relevant scientific community. Frye had given rise to the 'general acceptance' rule for admission of scientific evidence, which meant that expert evidence should not be admissible unless the methods and principles on which it was based had achieved widespread acceptance in the relevant discipline(s). Frye's much criticized 'general acceptance' rule was overturned by the U.S. Supreme Court in June of 1993 in Daubert v. Merrell Dow Pharmaceuticals, Inc.(2) which outlined several relatively sophisticated guidelines for determining admissibility of scientific evidence.
Under Daubert, scientific evidence must be reviewed in terms of the following general guidelines: (1) whether the theory or technique can be, and has been, tested (i.e., a determination of its 'falsifiability'); (2) whether the evidence has been subjected to peer review and publication; (3) the 'known or potential error rate' associated with applications of a theory; and (4) the general acceptance of the theory or technique in question. It should be noted, however, that the approach to the admissibility of scientific evidence outlined in Daubert is intended to be a "flexible" one, and other cases listing criteria are mentioned favorably, especially U.S. v. Downing (1985).(3) The application and utility of the Daubert guidelines, and the gatekeeping role of the judge, were recently upheld in the U.S. Supreme Court decision in Kumho Tire Co. v. Carmichael (1999).(4)
The Federal Rules of Evidence (FRE) themselves place limits on admissibility of purportedly scientific evidence. Under the Rules the trial judge must ensure, for instance, that any and all scientific testimony or evidence admitted is relevant and reliable, but not overly prejudicial.
FRE 401 and 402: All relevant evidence is admissible, except as otherwise provided ... Evidence which is not relevant is not admissible. Relevant evidence is defined as that which has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
FRE 403: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
FRE 702: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
While the primary shift in the U.S. standard of admissibility of scientific evidence has occurred at the federal court level (i.e., from Frye's 'general acceptance' to Daubert's more sophisticated guidelines), changes are also occurring at the level of individual states, which have their own autonomous court systems.
Although state courts are not required to adopt the FRE, and are therefore not required to consider the Daubert guidelines, states may choose to adopt the FRE and Daubert guidelines, to follow a 'general acceptance' or Frye rule, or to develop and implement some other admissibility rules. Whatever the specific admissibility rule, all trial court judges in the civil, criminal, juvenile and family court systems, and at both federal and state levels are being put in the position of deciding the relevancy, utility, and probative value of proffered scientific evidence -- whether using a Frye standard, a Daubert standard, or some other standard.
Before going any further, stop and reflect ...
How would you describe your decision-making role with respect to the admissibility of scientific evidence?
Has your role changed in recent years?
Do you think the judicial gatekeeping role, as articuiated in Daubert and Kumho, is an appropriate one? Why or why not?
|
|
|||
|
|
used exclusively in cases with difficult expert evidence |
used in cases with various types of expert evidence |
would not use at all |
|
Define scope of expert testimony at a Rule 16 Conference (or state equivalent) |
9% |
39% |
41% |
|
Require or encourage early exchange of reports of prospective trial experts |
9% |
69% |
9% |
|
Require or encourage experts who will testify to specify to their areas of agreement and disagreement |
5% |
24% |
65% |
|
Hold a pre-trial hearing on the admissibility of expert testimony |
12% |
55% |
24% |
|
Ask the parties to provide special education or instruction to the court |
11% |
19% |
65% |
|
Engage in your own research in specific area of expert testimony |
9% |
31% |
52% |
|
Ask clarifying questions from the bench |
6% |
64% |
19% |
|
Designate critical scientific or technical issues for a separate trial |
1% |
5% |
88% |
|
Allow jurors to question experts directly or through the court |
1% |
9% |
83% |
|
Have experts for both sides testify sequentially on an issue before moving on to direct testimony on the next issue |
2% |
7% |
86% |
|
Limit the number of experts who testify on a particular issue |
3% |
39% |
50% |
|
Limit the amount of time devoted to expert testimony on a particular issue |
3% |
19% |
72% |
|
Permit expert testimony on videotape |
3% |
61% |
25% |
|
Appoint an independent expert of the court |
5% |
31% |
58% |
|
|
||||||
|
|
1 "very infreq" |
2 |
3 |
4 |
5 "very freq" |
Mean |
|
Delay in trial schedule caused by unavailability of experts |
16% |
27% |
27% |
20% |
6% |
2.96 |
|
Indigent party unable to retain expert to testify |
29% |
22% |
18% |
19% |
8% |
2.8 |
|
Failure of party(ies) to provide discoverable information concerning retained experts |
25% |
29% |
26% |
13% |
3% |
2.69 |
|
Excessive expense of party-hired experts |
18% |
15% |
26% |
26% |
11% |
3.2 |
|
Attorney(s) unable to adequately cross-examine expert(s) |
21% |
23% |
33% |
14% |
6% |
2.83 |
|
Experts abandon objectivity and become advocates for side that hired them |
11% |
15% |
25% |
30% |
15% |
3.48 |
|
Extensive disagreement among parties |
6% |
14% |
32% |
29% |
15% |
3.58 |
|
Expert testimony appears to be of questionable validity |
20% |
29% |
34% |
9% |
5% |
2.76 |
|
Expert testimony not comprehensible to trier of fact |
26% |
27% |
28% |
12% |
5% |
2.64 |
|
Expert poorly prepared to testify |
32% |
41% |
18% |
4% |
2% |
2.27 |
|
Disparity in level of competence of opposing experts |
18% |
33% |
33% |
13% |
1% |
2.65 |
How
do judges around the country view their decision-making role
with respect to scientific evidence?
All of the judges interviewed (N=400) were asked how active a role they tend to take in determining the scientific merits of the proffered evidence. An overwhelming 91% of the judges believed that the role of gatekeeper was an appropriate one for a judge, irrespective of the admissibility standard followed in their state.
However, only 22% of all the judges described themselves as taking a "very active" role when deciding the admissibility of proffered scientific evidence. Most of the judges described themselves as taking either a "somewhat active" role (41%) or a "minimally active role" (30%). A few judges (8%) were unsure how to characterize their role in this way.
When comparing the responses of judges in states that follow the FRE or Daubert with those of judges in states that follow the Frye standard, there appears to be little difference in how they describe their role (68 judges were from states following some hybrid of Frye or some other standard).
Looking just at the responses of judges from FRE/Daubert states (n=205). Those judges who indicated that their state followed the FRE or Daubert guidelines were asked if they thought the role of the judge with respect to admissibility decision-making had changed as a consequence of Daubert: 52% believed their role had changed; 38% believed their role had not changed; and10% were unsure.
- 44% of the 54 judges who described themselves as taking a "minimally active role, believed that passage of the Daubert decision had changed their role, making it a more active one;
- 61% of the 78 judges who described themselves as taking a "somewhat active role in admissibility decision-making, believed that the passage of Daubert had increased their involvement in the admissibility decision-making process; and
- 59% of the 39 judges who described themselves as "very active," also believed that their role had become more active since the passage of Daubert.
Thus, for the majority of judges in FRE/Daubert states, the judicial role was seen to have become more active as a consequence of the passage of Daubert. Reasons given by the judges in states adopting Daubert for why they believed their judicial role had changed included:
"Daubert made it clear that the judge was to be more of an active gatekeeper than before ""[Under Daubert] the judge becomes more of a determiner of the reliability of the evidence."
"The role of the judge is greater because of the added procedures that may occur under Daubert, such as pre-trial admissibility hearings."
Judges who reported that Daubert had not changed the role of the judge, believed that under Daubert judges were still doing what they had always been doing. As one judge commented:
"Daubert put the judge back in the courtroom. Thing is, I've been there all along."
Endnotes:
1. Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).
2. Daubert v. Merrell Dow Pharmaceuticals, Inc. 113 S. Ct. 2786 (1993).
3. U.S. v. Downing 753 F. 2d 1224 (3rd. Cir. 1985).
4. Kumho Tire Co. v. Carmichael (97-1709) 131 F. 3d, 1433. http://supct.law.cornell.edu/supct/html/97-1709.ZS.html
5. Data presented in these tables were collected in a replication and extension of a study conducted by the Federal Judicial Center with respect to the management of scientific evidence among federal judges.
SUGGESTED READINGS
Black, B., Ayala, F.J., and Saffran-Brinks, C. (1994). "Science and Law in the Wake of Daubert: A New Search for Scientific Knowledge." Texas Law Review, Vol. 72, pgs. 715-803.
Daubert v. Merrell Dow Pharmaceuticals 509 U.S. 579 (U.S. Supreme Court, June 29, 1993). http://supct.law.cornell.edu/supct/html/92-102.cpanel.html
Faigman, D.L. (1995). "The Evidentiary Status of Social Science under Daubert: Is it 'Scientific,' 'Technical,' or 'Other' Knowledge." Psychology, Public Policy, and Law, Vol. 1(4), pgs. 960-979.
Faigman, D.L., Kaye, D.H., Saks, M.J., and Sanders, J. (1997). Modern Scientific Evidence: The Law and Science of Expert Testimony, Vols. I and II. Minnesota: West.
Faigman, D.L., Porter, E., and Saks, M. (1994). "Check Your Crystal Ball at the Courthouse Door Please: Exploring the Past, Understanding the Present, and Worrying About the Future of Scientific Evidence." Cardozo Law Review, Vol. 15, pgs. 1799-1835.
Federal Judicial Center. (1994). Reference Manual on Scientific Evidence. Washington: Government Printing Office. http://www.fjc.gov/EVIDENCE/science/sc_ev_sec.html
Fenner, G.M. (1996). "The Daubert Handbook: The Case, Its Essential Dilemma, and Its Progeny." Creighton Law Review, Vol. 29, pg. 939.
General Electric Co. et al. v. Joiner 78 F. 3d 524 (11th Cir. 1996), 118 S. Ct. 512 (1997). http://supct.law.cornell.edu/supct/html/96-188.zx.html
Gianelli, P.C., and Imwinkelried, E.J. (1993). Scientific Evidence, Vols. I and II. Michie.
Jasanoff, S. (1995). Science at the Bar: Law, Science and Technology in America. A Twentieth Century Fund Book.
Mealey's Daubert Report: Reviewing the Law and Admissibility of Expert Witness Testimony. http://www.mealeys.com/daubert.html
Walker, L. and Monahan, J. (1996). "Daubert and the Reference Manual: An Essay on the Future of Science in Law." Virginia Law Review, Vol. 82, pg. 837.