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By what burden of persuasion does a judge screen scientific and technological evidence? In 1993, the Supreme Court said that for such evidence to be admissible, the trial court must determine that it reflects “scientific knowledge.” But neither that decision, Daubert v. Merrell Dow Pharmaceuticals Inc., nor its 1999 successor, Kumho Tire Co. v. Carmichael, provided any real guidance on how a judge determines what it is that scientists know. And that’s an increasingly difficult determination to make. We’re witnessing a proliferation of new scientific principles, new technologies, new methodologies, and novel applications of all of these. Yet we expect judges, with no special training or experience, to do what the experts cannot — assess whether evidence represents good or bad science today. The one body charged with helping judges sort out when evidence should be admitted — the Federal Judicial Conference’s Advisory Committee on the Federal Rules of Evidence — has abdicated its stewardship responsibilities. Instead, it has left the Evidence Code to float — like foreign currency before intervention by the International Monetary Fund — waiting to see how the courts will resolve the problem. The Supreme Court and the Advisory Committee have failed the legal system in two important ways. First, they have not explained how judges should weigh the admissibility of scientific evidence without Frye-type reliance on practitioners of science. Second, they have not addressed how the very high standard by which truth is assessed in science should be used to help decide a social dispute by the comparatively low standard of preponderance of the evidence. THE ROAD FROM ‘FRYE’ For decades, courts had followed the test promulgated by the U.S. Court of Appeals for the D.C. Circuit in Frye v. United States (1923) for admitting scientific evidence — general acceptance in the relevant scientific community. While this test was nebulous in that it didn’t define “general acceptance” or “relevant scientific community,” it became the universally accepted test because it placed the determination of reliability (and therefore of admissibility) on those who knew the most about the evidence. The use of the general-acceptance standard spread. Courts applied it to novel methodologies that employed accepted scientific principles, and then to novel applications of accepted scientific principles and methodologies. Sometimes, of course, the test was unfair because the issue before the court was so specialized that it was of no interest to any significant scientific community. Consequently, “general acceptance” could not be proven. Some courts therefore began to employ a balancing test, whereby the judge made her own independent assessment of reliability. With the adoption of the Federal Rules of Evidence in 1973, revolutionary changes were enacted with regard to expert testimony. But nowhere in the new Evidence Code or the accompanying notes was there even a suggestion that the standard by which scientific evidence is screened was being reassessed. And virtually every state and federal jurisdiction continued to follow the Frye test. Nevertheless, 20 years later in Daubert, the Supreme Court held that the Evidence Code had staged a silent revolution. Because the standard for the admissibility of expert testimony in Rule 702 is stated simply as “scientific … knowledge that will assist the trier of fact,” the Court held that scientific validity is no longer to be determined exclusively by the scientific community’s acceptance. Validity is now to be determined by the presiding judge. The balancing advocates had prevailed. Thus did the Court in Daubert shift the focus of the screening, or gatekeeping, function from scientists to judges. This change in the standard of admissibility may be more apparent, however, than real. WHOM DO YOU TURN TO? The Daubert decision offers four nonexclusive factors that should be considered by the judge in screening scientific evidence: testing, peer review, potential rate of error, and general acceptance. How the mere delineation of these factors is supposed to help judges move away from reliance on people in the relevant science (the Frye approach) is unclear. Most judges have no independent basis for evaluating tests that have been applied to new scientific methodologies to assess their reliability. They don’t have the expertise to determine an acceptable error rate or to measure the adequacy of the controls to ensure accurate results. If peer reviews report negatively on new science, how can judges ignore those reviews? The reality is that judges are compelled to return to the same relevant scientific communities for answers. Daubert is little more than Frye in drag. Judges simply retool Frye by anointing a single expert and substituting that expert’s opinions for those of the relevant scientific community. The only difference is that the judge lays out the criticisms and concerns of the expert as if they were the judge’s own — in much the same way that some do with opinions drafted by their law clerks. Justice Stephen Breyer, writing in the most recent Issues in Science and Technology, acknowledged the degree to which judges rely on guidance from the scientific community. Some judges manage this gatekeeping function by appointing specially trained law clerks and special masters. Others appoint a single independent expert or an entire panel of neutral experts. All of these case management techniques emphasize the continued importance of the opinions of scientists. SPREADING INFLUENCE The degree to which experts remain crucial to the screening function accentuates the urgency of the second problem with the admission of scientific evidence — the unstated burden of persuasion, or the level of reliability that must be demonstrated. In the hard sciences, where truth is sought through research and experimentation, the accepted standard of reliability is something like 98 percent accuracy. In judicial proceedings where liability is being determined by a preponderance of the evidence, the standard of reliability is more than 50 percent. By turning to scientific experts to determine admissibility of evidence, judges are importing a higher burden of proof than is required by the legal system itself. The Washington College of Law Evidence Project (of which I’m the director) has a proposal to provide more guidance to judges by incorporating an explicit level of reliability into the Rules of Evidence on expert opinions. But the Advisory Committee has refused to consider it. Committee members expressed the belief that Rule 104 establishes a preponderance-of-the-evidence standard for admissibility that is applicable to all other rules. The committee’s decision is unfortunate for several reasons. First, there is no guarantee that the Supreme Court will agree that Rule 104 establishes the standard of reliability for scientific evidence. Since the sciences employ a standard more akin to “beyond a reasonable doubt,” a Court decision recognizing that may someday blindside the Advisory Committee, which will then have to scramble to coordinate that standard with its own preponderance standard. A decade ago, a similar problem arose with regard to the relationship of Rules 403 and 609. Rule 403 generally regulates the standard for the exclusion of relevant evidence because of potentially unfair prejudice. Rule 609 controls the admissibility of prior convictions for impeachment purposes. The Advisory Committee withdrew proposed revisions to Rule 609 that explicitly referred to Rule 403 on the belief that the obvious relationship would be confirmed by the Supreme Court in the pending case of Green v. Bock Laundry Machine Co. (1989). To the committee’s surprise, the Court did not find it so obvious. A specific reference to Rule 403 was later incorporated into Rule 609. Second, scientific testimony likely has a disproportionate impact on jurors. Consequently, many judges may believe that a higher standard than preponderance must be used when determining the reliability of such evidence. This, of course, can’t be proven because no surveys have been conducted by the Advisory Committee. Such information is generally not volunteered in written opinions. Judges understand that the less they say about subjects about which they’re uncertain, the less likely it is that they’ll be reversed on appeal. In silence, appellate courts assume that trial courts applied appropriate standards. Third, even if preponderance were generally acknowledged as the standard, constant reliance upon experts who employ a much higher standard must influence admissibility decisions. This elevated scientific standard is inevitably finding its way into admissibility decisions. Relevant testimony that otherwise should have been heard is being excluded. This cannot be avoided if the standard of reliability is not explicitly delineated and judges clearly instructed on how to integrate the lesser standard with the higher standard employed by those advising them. LEADERSHIP VACUUM In predictable fashion, the Advisory Committee, although it has proposed other changes scheduled to take effect Dec. 1, has done nothing to alleviate the confusion created by Daubert. Recently, it has rubber-stamped the Supreme Court’s interpretation of Rule 702. Rather than promulgating an improved rule — which it has the power to do since the Daubert Court was only interpreting a rule — the committee has simply codified the inadequate directives of Daubert to ensure that scientific testimony is “the product of reliable facts,” i.e., “the product of reliable principles and methods” that are “reliably” applied to the facts. Contrary to the claims of the Chemical Manufacturers Association and the Defense Research Institute, in an article in the August ABA Journal entitled “No Escape From Science,” these revisions neither clarify the gatekeeping function of trial judges nor set “meaningful standards for determining the reliability and the admissibility of testimony.” They leave the test as nebulous as it was under Frye. Once, the question of reliability, and therefore admissibility, of scientific evidence was delegated to the sciences. Each scientific discipline had a different standard of reliability, which was accepted by the courts on its face. Now that judges have to make this determination, they must be given their own standard by which to measure reliability. Until then, the secret password will remain “general acceptance,” and too many admissibility decisions will be as unpredictable and unfair as they were under Frye. What is required is a public debate, which can happen only if those with the power to change the Federal Rules of Evidence take the lead. If Chief Justice William Rehnquist and the Advisory Committee are not willing to assume this responsibility, Congress should reassert its authority over the rules and refine the Evidence Code that it had the wisdom to promulgate more than a quarter-century ago. Paul R. Rice is a professor of law at the American University Washington College of Law. He is the author of “Evidence: Common Law and Federal Rules of Evidence” (Lexis, 4th ed., 2000) and “Attorney-Client Privilege in the United States” (West Group, 2nd ed., 1999). He would like to acknowledge the editorial assistance of his colleague Professor Walter Effross.

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