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- Title
Rigor or Reach? Strictness or Scope?: The Continuing Battle Over the Parameters of The Supreme Court's Daubert/Kumho Reliability/Validation Test for the Admissibility of Expert Testimony.
- Authors
Imwinkelried, Edward J.
- Abstract
Expert testimony is offered at the overwhelming majority of trials conducted in the United States. In many of these cases, it is absolutely essential for the plaintiff or prosecutor to introduce such testimony. The plaintiff may need expert testimony to prove general causation in a toxic Tort case, and similarly the prosecutor may need to resort to expert testimony to establish the accused's identity as the perpetrator of the charged crime. For decades, the proponents of expert testimony have mounted campaigns to lower the evidentiary barriers to expert testimony. For most of the 20th century, the governing American test for the admissibility of expert testimony was the Frye general acceptance standard. The courts espousing the standard characterized it as a conservative test that was needed to compensate for lay jurors' tendency to ascribe excessive weight to new scientific theories and techniques. However, the proponents of expert testimony were astute enough to realize that the reach or scope of a test can be every bit as important as its rigor or strictness. Given Frye's rationale, the proponents of expert testimony persuaded most Frye jurisdictions to narrow the substantive scope of the test to novel, instrumental, purportedly scientific testimony. Consequently, many courts exempted traditional forensic techniques, soft science, and nonscientific expert testimony from scrutiny. In its celebrated 1993 Daubert decision, the Supreme Court announced that the enactment Federal Rules of Evidence in 1975 had impliedly overturned the Frye test. Instead, the Court derived a new reliability/validation test from the expression, "scientific ... knowledge," in the text of Federal Rule 702. In addition, the Court listed a number of factors such as error rate that judges could consider in deciding whether the methodology the expert proposed relying on was sufficiently reliable. As in the case of the Frye test, the proponents of expert testimony endeavored to limit the substantive scope of the new test. The proponents pointed out that Rule 702 refers in the alternative to "scientific, technical, or other specialized knowledge." They seized on that language as the basis for contending that the reliability test applied only to scientific testimony. In its 1999 Kumho decision, the Supreme Court rejected that contention. On the one hand, the Court reached the sensible conclusion that trial judges might have to apply the reliability differently to various types of expertise. The factors listed in Daubert might be inappropriate for assessing the reliability of non-scientific expertise; and in assessing non-scientific expertise, a judge might have to apply "reasonable measures of reliability" that were not listed in Daubert. However, the Court ruled that the basic requirement for a showing of reliability derives from the term "knowledge" in Rule 702 and that the requirement applies across the board to all types of expert testimony. After failing to persuade the Court to narrow the substantive scope of Daubert, the proponents of expert testimony have shifted to the procedural front. This front, especially the pretrial phase, is critical because the vast majority of civil and criminal cases-over 95% in both arenas-are disposed of short of trial. Some lower courts have used broad language to the effect that Daubert is largely inapplicable to bench trials and pretrial proceedings such as class certification and summary judgment hearings. However, an analysis of the Federal Rules of Evidence and Civil Procedure demonstrates that with the solitary exception of the permissibility of using hearsay affidavits and declarations at summary judgment hearings, there are no exemptions from the Evidence Rules for bench trials or these pretrial proceedings. The article then analogizes to Kumho and argues that with one exception, when the judge is the decisionmaker at these proceedings, the judge may apply Daubert flexibly in a relaxed fashion. To be sure, a belief in the judiciary's epistemic exceptionalism can be carried too far. However, as a repeat player at trials where expert testimony is almost always presented, the typical trial judge is likely to have a much better sense of the potential weaknesses of expert testimony than the average juror possesses. The article advances the policy argument for such differential treatment and illustrates how a judge might apply several of the Daubert factors more liberally at such proceedings than he or she would at a jury trial. However, recurring to the text of Federal Civil Rule 53 governing summary judgment motions, the article concludes that when any trial after a summary judgment hearing would be a jury trial, at the summary judgment hearing the judge must enforce the Daubert standard every bit as rigorously as he or she would at a jury trial. Civil Rule 53, Evidence Rule 702, and Daubert/Kumho demand nothing less.
- Subjects
EXPERT evidence; JUDICIAL discretion; JUDICIAL restraint; JUDICIAL review; CIVIL procedure
- Publication
Missouri Law Review, 2024, Vol 89, Issue 2, p615
- ISSN
0026-6604
- Publication type
Article