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Any experienced litigator knows that procedural framework often proves to be just as important as the substantive legal doctrine that operates within the framework. The current state of the law applying Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993), demonstrates that the procedural framework can also be just as controversial. JUSTICE BLACKMUN’S SIGNIFICANT STATEMENT In Daubert, the Supreme Court announced a new substantive standard for determining the admissibility of scientific testimony. The court abandoned the traditional, general acceptance standard and substituted a new validation test. In the same opinion, the court prescribed procedures for applying the new test. Writing for the majority, Justice Harry Blackmun specifically stated that the trial judge is to use Federal Rule of Evidence 104(a) procedures. That statement is significant. Rules 104(a)-(b) set out the procedures for determining preliminary or foundational facts. Rule 104(b) governs such foundational questions as: Does a lay witness have personal knowledge of the fact he or she contemplates testifying about? In Huddleston v. United States, 485 U.S. 681 (1988), the court explained that under 104(b), the trial judge considers only the proponent’s foundational evidence, accepts that evidence at face value, and limits his or her inquiry to one question: If the jury decides to believe the foundational testimony, is there a permissive inference of the existence of the predicate fact such as whether the witness observed the accident? In contrast, 104(a) controls when the predicate fact is a question such as whether an attorney-client conversation was confidential. In Bourjaily v. United States, 483 U.S. 171 (1987), the court elaborated on 104(a) procedures. In that setting, the judge considers the foundational testimony on both sides, weighs the credibility of the testimony, and makes a true finding of fact as to whether the fact exists. A clear signal has been sent to trial judges In that light, the Daubert court’s assignment of the new foundational fact to Rule 104(a) sends trial judges a clear signal that they can pass on the credibility of both parties’ foundational testimony on the question of whether the expert’s opinion rests on sound scientific-validation methodology. If the opponent’s evidence contradicts the proponent’s, the trial judge, as gatekeeper, does not have to accept uncritically the proponent’s testimony. There is little case law and commentary on the question of the extent to which the trial judge may factor the credibility of foundational testimony into a decision under 104(a). Even the evidence treatises are largely silent on the question. For that reason, it should come as no surprise that on the three recent occasions when the issue arose, the courts reached differing results. In one 1999 case, Hall v. Baxter Healthcare, 947 F.Supp. 1387, 1396 n. 24 (D. Ore. 1996), a federal district court ruled that at the Daubert hearing the opponent could not cross-examine the proponent’s witness to expose a bias relevant to the witness’s credibility. However, in a subsequent 1999 decision, In re UNISYS Sav. Plan Litig., 173 F.3d 145 (3d Cir. 1999), the 3rd U.S. Circuit Court of Appeals held that a federal district court properly excluded proffered scientific testimony as incredible because the proponent’s expert had been impeached by prior deposition testimony inconsistent with his foundational testimony. In the appellate court’s view, the inconsistency justified the trial judge in finding that the witness’s foundational testimony was “untruthful.” The appellate court majority, however, reached this conclusion over a vigorous dissent by Chief Judge Edward R. Becker, one of the leading judicial authorities on evidence. Judge Becker protested that the judge had “confuse[d] the reliability of an expert witness — a matter for the jury — with the reliability of his or her methodology — a matter initially for the trial judge.” He argued that the evidence of the witness’s prior inconsistent statements was “irrelevant” to the judge’s 104(a) decision. THE 3RD CIRCUIT REVISITS THE PROBLEM IN ‘ELCOCK’ In 2000, the 3rd Circuit revisited the problem in Elcock v. Kmart Corp., 233 F.3d 734 (3d Cir. 2000). There, Judge Becker wrote for a unanimous panel. Elcock held that during a Daubert hearing, a trial judge had erred by considering evidence that the expert witness had engaged in criminal acts involving dishonesty and false statement. However, Judge Becker added: “We do not hold…that a district court can never consider an expert witness’s credibility in assessing the reliability of that expert’s methodology under Rule 702. Such a general prohibition would be foreclosed by the language of Rule 104(a)…[C]onsider a case in which an expert witness, during a Daubert hearing, claims to have looked at…key data, while the opponent offers testimony that the expert had not in fact conducted such an examination. Under such a scenario, a district would necessarily have to address and resolve the credibility issue raised by the conflicting testimony.” Judge Becker cautioned that the proper resolution of the issue in a specific case “does not readily admit to the drawing of bright lines.” As Judge Becker suggested, rather than attempt to regulate the scope of 104(a) voir dire by an inflexible rule, it makes more sense to announce a general norm, giving the trial judge flexibility. During the Daubert hearing before allowing the opponent to introduce testimony impeaching the proponent’s foundational testimony, the judge should exercise discretion in determining (1) that there is a lively dispute over credibility, and (2) that the impeaching testimony has relatively direct relevance to credibility. GENUINE CREDIBILITY DISPUTE In some cases, even though there is a pitched battle over the admissibility of the proponent’s scientific evidence, the battle does not pose any credibility questions for the judge. Suppose that without questioning the data relied on by the proponent’s expert, the opponent calls other experts who used a different scientific method to yield contrary results. For instance, while the proponent’s expert based his opinion on animal studies, the opponent’s expert might have relied on an epidemiological analysis to arrive at a different conclusion. Here, the judge must decide the degree to which the opponent’s foundational testimony undermines the inference that the proponent’s expert used sound scientific methodology. Given the nature of the opponent’s attack, however, there is little need for the judge to consider testimony relevant to the expert’s sincerity or perceptual ability. Formally, the expert’s credibility comes into issue as soon as the witness gives any testimony. But in a practical sense, the witness’s credibility is not a genuine issue here. Suppose, however, that the opponent calls another member of the research team that generated the data the proponent’s expert is relying on. The opponent’s expert testifies to different underlying data. Now the opponent’s submission creates a genuine credibility dispute. The testimony of the proponent’s expert is at loggerheads with the testimony of the opponent’s expert. One of the witnesses is either lying or mistaken. If the judge is to avoid ruling on an essentially arbitrary basis, he or she must go beyond the face of the testimony describing the research data. Credibility evidence would serve as a rational basis for resolving this dispute. Faced with a true credibility dispute, the judge has an acute need for evidence speaking directly to credibility. When should a judge permit credibility evidence? EVIDENCE RELEVENT TO CREDIBILITY Given the tension between judicial economy and protection of the jury’s fact-finding role, the judge should not permit the opponent to introduce any and all evidence relevant to credibility even when there is a lively credibility dispute. The judge ought to accept credibility evidence at the Daubert hearing only when the evidence has great probative value on the dispute. What types of evidence should the judge consider? To begin with, the judge ought to be able to consider some prior inconsistent statements by the witness. Under common law and under the Federal Rules, the standard for inconsistency is relaxed. The prior statement need not be diametrically opposed to the witness’s trial testimony. United States v. Cody, 114 F.3d 772, 776-77 (8th Cir. 1997). The earlier statement need merely “bend in a different direction.” McNaught & Flannery, Massachusetts Evidence: A Courtroom Reference 13-5 (1988). That lax standard, though, is inappropriate as the test for introducing an inconsistent statement during the 104(a) hearing. It is sounder to insist that the prior statement flatly contradicts the witness’s foundational testimony. What about a witness’s bias? Bias can vary greatly in the degree of its probative worth. Like the traditional standard for inconsistency at common law and under the Federal Rules, the courts “have been hospitable to the point of liberality in admitting evidence relevant to a witness’ bias.” United States v. Akitoye, 923 F.2d 221, 223 (1st Cir. 1995). The same liberality should not obtain under 104(a). At the trial on the merits in many jurisdictions, the opponent would be entitled to establish that the witness had been employed by other similarly situated attorneys such as other plaintiffs’ lawyers. There is an inference of bias, but the inference is weak. Contrast the extreme situation in which the attorney has hired the expert to conduct the original research needed to validate the technique to satisfy Daubert. Now the nexus between the bias and the foundational testimony is stronger. On remand in Daubert, Judge Kozinski stated that it was relevant that the witnesses “have developed their opinions expressly for purposes of testifying.” Daubert v. Merrell Dow Pharmaceuticals Inc., 43 F.3d 1311, 1317-18 (9th Cir.), cert. denied, 516 U.S. 869 (1995). In this situation, the direct relevance of the bias to the Daubert foundation warrants its receipt during the voir dire. The Advisory Committee Note to the Dec. 1, 2000, amendment to Rule 702 endorses the position that the trial judge may consider this species of bias evidence. CONSIDER EVIDENCE OF UNTRUTHFUL CONDUCT Finally, consider evidence of the witness’s untruthful conduct. Under Federal Rule 608(b), a cross-examiner may inquire about such behavior even if it has not yet resulted in a conviction. However, as in the case of both inconsistent statements and bias evidence, there are gradations. Rule 608(b) permits the cross-examiner to ask about an untruthful act such as a fraudulent workers’ compensation claim. But the claim has nothing to do with the subject matter of the witness’s Daubert testimony. It would be an abuse of the judge’s discretion to allow that inquiry at the Daubert hearing. It is a radically different matter, however, if the witness had perpetrated fraud in an earlier phase of the research project that the witness described in the foundational testimony. Here there is a direct enough connection between the untruthful conduct and the foundation that the judge should permit the opponent to cross-examine the proponent’s witness about the conduct. The Daubert court’s decision to rely on Rule 104(a) is proving to be both important and controversial. The decision is forcing the courts to grapple with a long-neglected issue: the extent to which the judge may consider credibility evidence during a 104(a) hearing. Given backlogged trial court calendars, the courts cannot afford to try a case twice. Yet, when a credibility dispute emerges during a Daubert hearing, the judge needs the evidence so as to be able to resolve the dispute in an intelligent fashion. Edward J. Imwinkelried is a law professor at the University of California at Davis and the co-author of Scientific Evidence (3d ed. 1999). His e-mail address is [email protected]

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