Thank you for sharing!

Your article was successfully shared with the contacts you provided.
The general-acceptance test announced in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) long held sway as the standard governing the admissibility of scientific evidence in federal court. Some state courts praised the test for its “conservative nature” because they assumed that the typical lay juror attached undue weight to this type of evidence. People v. Kelly, 549 P.2d 1240 (Cal. 1976). Ironically, in several respects, the Fryetest was lax to the point of being nonexistent. It was confined to “scientific” evidence and did not extend to nonscientific expertise. (Strong, “Language and Logic in Expert Testimony: Limiting Expert Testimony by Restrictions of Function, Reliability, and Form,” 71 Or.L.Rev. 349, 361 (1992).) The courts adopted an essentially laissez-faire attitude toward nonscientific testimony. EXCEPTIONS ARE MADE FOR THE ‘SOFT SCIENCES’ Moreover, even some of the strongest judicial advocates of Fryeexempted “soft” science. People v. McDonald, 690 P.2d 709 (Cal. 1984). These courts reasoned that only instrumental scientific evidence “produced by a machine” presented an acute risk that the evidence would overwhelm the jury. The majority of Fryejurisdictions recognized an exemption for “soft” sciences, such as psychology. (Hanson, James “Alphonzo Frye Is Sixty-Five Years Old; Should He Retire?” 16 West.St.U.L.Rev. 357, 411 (1989).) If the judge classified the expertise as nonscientific or soft science, there was no need for the proponent to show that the underlying theory or technique passed muster under the general-acceptance test. In the words of Judge Alex Kozinski, however, the Supreme Court’s 1993 decision, Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993), thrust us into a brave new world. Under Daubert, the lay of the legal land is very different. In Daubert, the court interpreted the expression “scientific…knowledge” in Federal Rule of Evidence 702. Fryerequired that the proponent establish the general acceptance of the underlying scientific theory and technique, but the linchpin under Daubertis reliability in the sense of sound scientific methodology. If a novel theory has been empirically validated by decent research, the testimony is admissible even though the theory is controversial. The second shoe fell in 1999 when the Supreme Court decided Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137 (1999). In that case, the court announced that the requirement for a showing of reliability is not limited to scientific testimony. Rule 702 refers in the alternative to “scientific, technical or other specialized knowledge.” However, the court refused to limit the reliability requirement to testimony proffered as “scientific…knowledge.” The third shoe is falling in the lower courts. In his lead opinion in Daubert, Justice Harry A. Blackmun stated a broad definition of science and gave no hint that “scientific…knowledge” meant only hard science such as physics. Most lower courts have concluded that the requirement for a showing of reliability extends to soft as well as hard science. (Comment, “Admissibility of Expert Psychological Evidence in the Federal Courts,” 27 Ariz.St.L.J. 1315 (1995).) Post- Daubert, the expert’s ipse dixit no longer suffices. (Grove & Barden, “The Admissibility of Testimony From Mental Health Experts Under Daubert/Kumho Analyses,” 5 Psych., Pub.Pol’y & Law 224 (1999); Klein v. Vanek, 86 F. Supp.2d 812 (N.D.Ill. 2000).) Of course, announcing that Daubertand Kumhoreach nonscientific and soft scientific expertise is easier than figuring out how the reliability requirement applies. There are obvious differences, for example, between hard and soft science. (Showalter, “Distinguishing Science from Pseudo-Science in Psychiatry: Expert Testimony in the Post-Daubert Era,” 2 Va.J. Soc. Pol’y & L. 211 (1995).) If a scientist claims that a new intoxication testing technique is valid, the claim can be evaluated by comparing blood-alcohol concentrations (BACs) measured by the technique against measurements in direct blood alcohol tests. Validating a new syndrome is a different ball game. Soft scientific claims generally do not lend themselves to the same types of validation or the same precision. Sadly, Kumhogives the trial bench little guidance as to how to apply the reliability requirement to nonscientific expertise. THE ANALOGY TO THE AUTHENTICATION DOCTRINE To tackle that problem, trial judges and attorneys might analogize to the authentication doctrine. Although there is a general authentication requirement, the foundation varies with the nature of the proponent’s claim. Assume that an accused assailant claims self-defense. The accused testifies that just before the fight, he received a threatening letter purportedly written by the alleged victim. The defense offers the letter to corroborate the accused’s testimony. It would suffice for the accused to identify the letter as the one he received. The accused would not have to establish that the alleged victim actually wrote the letter. The purpose of the evidence is to show the accused’s state of mind. However, suppose that the defense offers the letter to show that the alleged victim hated the accused and was more likely to have thrown the first punch. Now the defense would have to lay a more extensive foundation because the defense is claiming the alleged victim’s authorship. The prior foundation is adequate relative to the claim about the defendant’s state of mind, but insufficient relative to the claim about the alleged victim’s state of mind and conduct. The foundation varies with the nature of the proponent’s claim. Analogously, in applying Daubertand Kumhothe courts should pause to identify the proponent’s claim about the expertise. In the past, courts and commentators have tended to refer to a ” Daubertfoundation” as though one size predicate fit all. However, the use of the proposed expert testimony at trial determines the proponent’s claim about the expertise. In turn, the claim determines the required validation. Here are some examples. � An historical claim that a practice exists among experts in the field. Every first-year law student studies Frigaliment Importing Co. v. B.N.S. International Sales Corp., 190 F. Supp. 116 (S.D.N.Y. 1960), the famous opinion about the meaning of “chicken” in a contract. Both sides call experts to establish a trade usage or custom as to the meaning of “chicken.” How should the trial judge determine the admissibility of such testimony? Under Kumho, even if the proponent offers the testimony as nonscientific expertise, the proponent must show its reliability. The starting point is asking what the proponent claims. Here, the only claim is that the usage exists. If the witness testifies that she has participated or heard of many similar transactions in which “chicken” was used in a particular sense, that testimony is an adequate predicate. � A substantive claim that the consistency of a person’s symptoms with a syndrome or set of diagnostic criteria justifies an inference about the person’s objective conduct. In other cases, the proponent is not content to claim that a practice or custom exists within a specialty. Assume that in a premises liability action, the plaintiff guest alleges that she was raped due in part to the defendant hotel’s lax security. If the hotel denies the rape, the plaintiff might proffer rape trauma syndrome (RTS) testimony. In this situation, the contemplated use of the syndrome differs fundamentally from the use in the prior example. The plaintiff claims that if the alleged victim’s case history matches the syndrome, the match is substantive evidence that a rape occurred. The plaintiff is using the syndrome as a fact-finding tool. Would it suffice if the expert testified that he had counseled rape victims for years and that the vast majority of them displayed symptoms similar to the plaintiff’s? Even if the expert had a large database of rape reports, the foundation might be inadequate. The witness included alleged victims in his database solely on the basis of their self-reports. HOW COURTS CAN TAKE DAUBERTSERIOUSLY If the courts are going to take Daubertseriously, before allowing an expert to draw a substantive inference from a database they should insist that the expert make some meaningful effort to corroborate the reports. (Bigelow, “On the Assessment of Children in Suspected Child Sexual Abuse in Light of Daubertand Frye: Limitations on Profiles and Interviews as Scientifically Grounded Evidence,” 45 J.Forensic Sci. 573 (2000).) Again, propositions in soft science cannot be validated in the same manner as hypotheses in hard science. However, before including a person in the database, the researcher could check with emergency rooms the victim visited and police departments the victim contacted. Did the victim display physical signs of trauma? Did the alleged attacker confess, or was he convicted? As a scientist, the researcher should do more than accept self-reports at face value. � A credibility claim that the consistency of a person’s conduct with a syndrome or set of diagnostic criteria is some evidence of the person’s truthfulness. Many Fryejurisdictions exempted soft science from virtually all scrutiny. However, in the minority of cases applying the test to such testimony, the courts sometimes recognized a useful distinction — the difference between using a soft science technique substantively as a fact-finding tool and employing it as a basis for drawing inferences as to a person’s state of mind. A VAST DIFFERENCE IN VALIDATING A SYNDROME There is a vast difference between validating a syndrome as “a therapeutic tool useful in counseling” and proving its substantive validity as “a fact-finding tool.” State v. Saldana, 324 N.W.2d 227, 230 (Minn. 1982). “Psychiatrists and psychologists” typically counsel patients on the basis of the patients’ beliefs “even though [the patient's] beliefs about his or her illness are entirely erroneous.” (Levitt, “The Use of Hypnosis to ‘Freshen’ the Memory of Witnesses or Victims,” 17 Trial 56, 58 (April 1981).) Suppose that in the premises liability case, the plaintiff concedes that she delayed reporting the rape to the police for 72 hours — conduct which might strike the jury as impeaching. The plaintiff again calls an RTS expert. However, the plaintiff now calls the witness for a different purpose. The plaintiff is not proffering the testimony as substantive proof of a rape, but rather is attempting to rehabilitate her credibility; the expert will testify that in his experience and that of other rape counselors, many self-described rape victims delay reporting the offense due to a sense of embarrassment. Furthermore, when these women were treated as rape victims, in most instances their mental health improved. Would this foundation be adequate to permit the use of the syndrome for rehabilitative purposes? The foundation does not validate the syndrome for the substantive purpose of proving that a rape occurred because the expert accepted the reports at face value. However, that is not the purpose for which the proponent tenders the evidence. The foundation arguably validates the expert’s credibility in claiming that a woman could consistently believe that she had been raped and yet would delay reporting the rape. Some of the self-described victims may be lying. However, if there are numerous reports and an evident improvement in the reporter’s mental health in many cases, there is a plausible inference that most reporters were subjectively truthful. In the authentication areas, we have the right mindset. If the proponent offers an exhibit, we ask not only what evidence the proponent is offering, but also why the proponent is offering it. To intelligently analyze the admissibility of the exhibit, we need to know why the proponent is eliciting the testimony. We need to transfer the same mindset to expert testimony. We sometimes generalize about the requirements of “a Daubertfoundation”– in the singular. There are many different types of foundations that will satisfy Daubertand Kumho. The starting point is asking what opinion the proponent is offering. The next step should be determining why the proponent is offering the testimony — what is the purpose for introducing the evidence? The purpose determines the expert’s underlying claim, and the required validation foundation varies with the terms of the claim. Until we move beyond the “one size foundation fits all” mentality, we will make little headway in Daubert’s Brave New World. Mr. Imwinkelried is a professor of law and director of trial advocacy at the University of California at Davis. He is co-author of Giannelli & Imwinkelried, Scientific Evidence (3d ed. 1999).

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.