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In 1993, the U.S. Supreme Court made two significant rulings in Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993). First, the enactment of the Federal Rules of Evidence had superseded the traditional, Frye general acceptance test for the admission of purportedly scientific testimony. NO EXPLICIT SEA CHANGE — BUT A SIGNIFICANT CHANGE The Court noted that Federal Rule 402 purports to mandate the admission of all logically relevant evidence unless the judge can rationalize the exclusion under the Constitution, a statute, the Federal Rules of Evidence, or court rules adopted pursuant to statutory authority such as the Federal Rules of Civil Procedure. Justice Harry Blackmun approvingly quoted the statement of the late Professor Edward Cleary, the Rules’ Reporter, that “[i]n principle, under the Federal Rules no common law of evidence remains.” Id. at 588. Frye had been the prevailing view at common law. There was no language in the text of the rules, however, that could reasonably be interpreted as codifying the general acceptance test. As a case law rule, Frye did not survive the passage of the Federal Rules. Secondly, Blackmun derived a new standard from the text of Rule 702. The rule states that a witness can qualify as an expert by reason of possessing “scientific … knowledge.” If that was the basis for the witness’s qualification as an expert, the substance of the witness’s testimony had to amount to reliable “scientific … knowledge.” The challenge was defining that expression. Drawing on a number of amicus briefs, the Court adopted a methodological definition. Justice Blackmun explained that “in order to qualify as ‘scientific knowledge,’ an inference or assertion must be derived by the scientific method.” Id. at 590. That method is “‘a process for proposing and refining theoretical explanations about the world that are subject to further testing and refinement.’” Id. The methodology “‘is based on generating hypotheses and testing them.’” Id. at 593. The Daubert Court did not explicitly announce “a sea change.” United States v. 14.38 Acres of Land Situated in Leflore County, Mississippi, 80 F.3d 1074, 1078 (5th Cir. 1996). However, Blackmun appreciated that the Court’s holding represented a significant change and that the lower courts would be eager for guidance. Consequently, the majority added “general observations,” identifying factors that trial judges could consider in assessing the soundness of the methodology underlying scientific testimony. The majority emphasized that it did “not presume to set out a definitive checklist or test.” Id. at 593. Justice Blackmun enumerated six factors: � Whether the hypothesis is testable. If a theory in astrology does not lend itself to empirical testing it cannot qualify as “scientific … knowledge.” � Whether the hypothesis has been tested. In the past, the courts have too often equated the plausible and the proven. However, the scientific method is a two-step process; after formulating a plausible hypothesis, the scientist engages in systematic observation or experimentation to determine whether the hypothesis is empirically valid. Without more, the plausibility of a hypothesis does not establish its status as scientific knowledge. � Whether the hypothesis has been subjected to peer review and publication. Such review is “not a sine qua non of admissibility.” As a general proposition, subjecting research to that type of scrutiny “is a component of ‘good science,’” but sometimes a theory is “too new, or of too limited interest.” That kind of review, though, “increases the likelihood that substantive flaws in methodology will be detected.” Thus, peer review may be relevant circumstantial evidence of sound scientific methodology. � Whether the hypothesis has a known or potential error rate. Id. at 594. If there has been testing of the hypothesis, that testing often establishes an error rate. The identification of that rate better enables the trier of fact to determine how much weight to attach to the evidence. The most common rationale for the Frye test was the fear that jurors would ascribe undue significance to scientific testimony. The availability of data as to the technique’s error rate allays that fear. � Whether there are standards controlling the technique’s operation. When there are such standards, it is easier for other researchers to duplicate prior experiments. If the later experiments replicate the prior results, the courts can have greater confidence in the reliability of the technique. When repeated tests yield the same result, there is greater assurance that the outcome represents scientific fact rather than artifact. � Whether the hypothesis is generally accepted. Blackmun demoted general acceptance from its earlier status as a litmus test to a mere factor in the validation standard. If a hypothesis has circulated for decades and managed to garner general acceptance, that suggests that other scientists have double-checked the earlier research and found it to be satisfactory. Although Daubert may not have “revolutionized” federal evidence law, Daubert represented an important change. On remand in Daubert, Judge Alex Kozinski remarked that the application of the new test was a “daunting task.” Daubert v. Merrell Dow Pharmaceuticals Inc., 43 F.3d 1311, 1316 (9th Cir.), cert. denied, 516 U.S. 869 (1995). As the judge colorfully observed, Daubert thrust trial judges into a Brave New World. One of the reasons that the traditional test had been so popular was that trial judges could apply that test without learning anything about the relevant science; all the judge had to do was to determine the degree of popularity of the theory. Daubert rejected general acceptance as a surrogate for scientific merit and forced judges to analyze the direct determinants of scientific merit, the extent and quality of the underlying empirical data. Black, Ayala & Saffran-Brinks, “Science and the Law in the Wake of Daubert: A New Search for Scientific Knowledge,” 72 Texas Law Review 715 (1994). Initially trial judges were somewhat uncomfortable in their new role. Understandably, they turned to Blackmun’s list of factors as a security blanket. At first, there was little consensus among judges as to how to either assess or weight the factors. Gatowski, Dobbin, Richardson, Ginsburg, Merlino & Dahir, “Asking the Gatekeepers: A National Survey of Judges on Judging Expert Evidence in a Post-Daubert World,” 25 Law and Human Behavior 433, 448 (2001). While Justice Blackmun’s opinion stated that trial judges were not to treat his enumeration of factors as a “definitive checklist,” the early tendency of many trial judges was to do precisely that. Between 1993 and 1997, lower court judges tended to focus on the listed factors. Shoop, “Judges Are Gaining Confidence in Assessing Expert Evidence,” 38 TRIAL 92 (Feb. 2002) (discussing the findings of research conducted for the RAND Institute for Civil Justice). A checklist mindset set in. Judges felt obliged to mechanically evaluate each of the listed factors. Dixon and Gill, “Changes in the Standards for Admitting Expert Evidence in Federal Civil Cases Since the Daubert Decision,” 8 Psychology, Public Policy and Law 251, 299 (2002). Since some judges initially felt ill at ease determining the relative weight of the Daubert factors, they inclined to weight them equally. Further, at least subconsciously, the temptation was to receive proffered testimony only if the number of factors favoring of admissibility exceeded the number cutting against. Make the call by tallying the factors pro and con. THE BENCH TAKES A SHORT COURSE IN THE SCIENTIFIC METHOD Gradually, though, the courts’ approach has evolved. The evolution is attributable to several factors. As the years have passed, the courts have accumulated experience working with Daubert. More importantly, in the intervening years, the judiciary has gained a more sophisticated understanding of the scientific process. The typical substantial modern trial involves expert testimony. Every time a judge presides at a trial with scientific evidence, he or she takes a short course in scientific method. In addition, there has been a growing number of continuing judicial education programs on science for judges. Furthermore, organizations such as the Federal Judicial Center have developed useful texts such as the Reference Manual on Scientific Evidence, now in a second, 2000 edition. Consequently, today many judges have moved beyond a mechanistic checklist approach. Rather, they address the broader, bottomline question of the reliability of the evidence. Dixon and Gill, supra. They sift through the foundational testimony to determine whether there is an “empirically supported rational explanation” for the expert’s opinion. Black, “Learn the Science in Your Cases,” 39 Trial 18, 19-20, 25 (Sep. 2003). Increasingly, judges feel comfortable addressing such considerations as the size of the researchers’ database, its composition, the test conditions, and the rates for false positives and negatives. These judges no longer mechanistically tally up the number of Daubert factors favoring or opposing admission. Instead, they quite correctly address the bottom line: Does the proponent’s empirical data establish that this expert can accurately draw the inference that he or she is prepared to testify to? American evidence law has witnessed similar evolutions in the past. In the early cases involving motion pictures and audiotapes, the courts embraced a checklist approach. 1 Imwinkelried, Giannelli, Gilligan & Lederer, “Courtroom Criminal Evidence,” 408, 413 (3rd ed. 1998). However, as the courts became more familiar with those types of evidence, they moved beyond the checklist mentality and focused on the fundamental question of whether the proponent’s foundational testimony demonstrated the authenticity of the evidence. Id. Fortunately, history is repeating itself in the law of expert testimony. Edward J. Imwinkelried is the Edward L. Barrett Jr. Professor of Law at the University of California, Davis. He is co-author of “Scientific Evidence” (Lexis Law Pub. 3rd ed. 1999).

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