At PsychLaw.net, we use current research in the behavioral sciences and law to aid the practitioner. We hope this blog will assist you to educate trial courts concerning “good” vs. “junk” behavioral science. For example, the Federal Judicial Center developed a Reference Manual on Scientific Evidence. This manual aids the gate-keeping responsibility of the courts under Daubert.[1] Professor Margaret Berger wrote the manual’s lead article as a template federal trial judges. Professor Berger offers that she has written so as to:
“concentrate on specific problems that require a considerable investment of judicial time when experts seek to testify about scientific matters”[2]
Professor Berger identifies four broad categories corresponding to the central concerns permeating judicial opinions:
- Is the expert qualified?
- Is the expert’s opinion supported by scientific reasoning or methodology?
- Is the expert’s opinion based on reliable data?
- Is the expert’s opinion so confusing or prejudicial that it should be excluded pursuant to Rule 403?”[3] Id. pg 45
IS DR. X-Y-Z QUALIFIED?
PsychLaw.net utilizes the templates provided by Daubert and Kumho Tire to aid practitioners in developing a voir dire cross examination aimed at exposing a lack of knowledge as to the datum of the discipline.
IS DR. X-Y-Z’S OPINION SUPPORTED BY SCIENTIFIC REASONING?
At PsychLaw.net numerous examples from the federal and state decisional law will be provided to illustrate the necessity for “Rejecting expert testimony because of skewed methodology…..[where]..non-conventional assumptions or irregular techniques were used, or errors have been found”[4].
IS DR. X-Y-Z’S OPINION BASED ON RELIABLE DATA ?
At PsychLaw.net, we integrate scientific research and law. We believe this integration should aid in the development of objections that a witness is basing his or her opinion on evidence not ‘reasonably relied upon’. The Daubert Court required trial judges to make a preliminary assessment “of whether the reasoning or methodology underlying the testimony….can be applied to the facts in issue”[5], the reader will understand how to aid the trial court in this determination by an explication of its methodological underpinnings.
As example, the court in Christophersen v Allied-Signal Corp., 939 F 2d 1106, 1114 (5th Cir. 1991)(en banc), cert. denied, 112 S.Ct. 1280 (1992), cited to Evidentiary Rule 703 and offered:
“Although this rule is primarily directed toward permitting an expert to base his opinion on hearsay or otherwise inadmissible sources, the inquiry into the ‘types’ of ‘facts and data’ underlying an expert’s testimony is not limited to the admissibility of that data. District judges may reject opinions founded on critical facts that are plainly untrustworthy, principally because such an opinion cannot be helpful to the jury.” [6]
Consider, for example, the hearsay findings and opinions of a psychologist in a child custody evaluation. The cross examining attorney established that the psychologist was obligated to comply with Standard 7.04 (b) – addressing “Truthfulness and Candor” – of the 1992 ethical code for psychologists: “Whenever necessary to avoid misleading, psychologists acknowledge the limits of their data or conclusions.”
Attny: Let’s talk about psychologists acknowledging the limits of their data or conclusions, so as to avoid misleading people that read their work, shall we? My next question is this: You describe, on page 22, of your report: “I am concerned about the possibility of [father’s] over involvement with Melissa” [minor child]. Do you see that?
Psych: Yes I do.
Attny: All right. Now, upon what do you base that concern?
Psych: A variety of things. The totality of the evaluation — partially Dr. Michael’s comments, who had been working [as a treating therapist] with the entire family. I think he described him [father] as obsessed with Melissa — partly with your client [the father] telling me about his relationship with Melissa, which seemed to be perhaps the only relationship he had with anybody other than his immediate family; his social history in general; just things told to me by Mrs. Walker [the mother] and Audrey [Melissa’s older sister].
Attny: Now, let’s just take the first thing you mentioned, Dr. Michael’s discussion with you. How much time did Dr. Michael spend observing Mr. Walker [the father] and Melissa?
Psych: I have no idea.
Attny: That’s curious. You say, on page 20 of your report, the middle of the paragraph that starts: “I spoke with Dr. Norman Michael” — you say:
“He believes Mr. Walker is, however, obsessed with Melissa, in part because of power struggle with Mrs. Walker and in part because she is his primary source of social entertainment” Now, remembering APA Standard 7.04, Truthfulness and Candor, you have no idea how much time Dr. Michael spent looking at Mr. Walker’s interaction with Melissa; correct?
Psych: No, I do not.
Attny: Do you know if he [Dr. Michael] spent any time whatsoever seeing Melissa and Mr. Walker interact?
Psych: I have no idea. I wouldn’t imagine, actually, those kinds of observations would not come from being together at all, but rather from his work with Mr. Walker.
Attny: So with respect to the data upon which you base your concern, as you state, about the possibility of over-involvement with Melissa, insofar as it concerns Dr. Michael, you don’t know what he saw between Mr. Walker and his daughter Melissa, and you don’t know how much time he observed them; correct?
Psych: That’s correct.
Attny: Could you look at Standard 7.02 (a) of the ethical code?
Psych: Yes.
Attny: With respect to the issue of substantiation, do you see that it says that psychologists in forensic assessments and so on make reports that are based on information that is sufficient to provide appropriate substantiation for their findings?
Psych: Yes, I do.
Attny: Okay. Now without any information about how much time Dr. Michael spent observing Mr. Walker, is there any other place in your report where you substantiate your concern about the possibility of over-involvement with Melissa?
Psych: I don’t know.
At PsychLaw.net, we consider, also, the testimony of a psychologist who concluded that a child involved in a custody dispute had been sexually abused by his father.
Attny: You testified that you had seen fifty to one hundred cases of sexual abuse allegations, is that correct?
Psych: That is correct.
Attny: There was never a false allegation, to your knowledge, in that fifty or one hundred cases, correct?
Psych: Not from what I’ve seen. Yes, that’s correct.
Quite clearly, this psychologist’s opinions were fundamentally untrustworthy. If the psychologist has never seen a false allegation of sexual abuse, she is unfamiliar with the characteristics of those allegations. Without sufficient familiarity with false allegations of sexual abuse, the psychologist cannot be expected to recognize such allegations should she encounter them.
The authors intend to make inquiry into what factors are “reasonably relied upon” less daunting than it would seem. This kind of description through voir dire and cross examination, is precisely what the courts are asking for:
“Rule 703 is satisfied once there is a showing that an expert’s testimony is based on the type of data a reasonable expert in the field would use in rendering an opinion on the subject at issue.”[7]
Therefore we at PsychLaw.net recommend the following voir dire procedure regarding scientific methodology to identify what can and cannot be “reasonably relied upon”.
Voir Dire Questions Regarding Scientific Methodology
- Doctor, you understand that as an expert witness, you are allowed to express your opinions – -Correct?
- And, you understand that this proceeding requires that your opinions rely on a reasonable foundation – -Correct?
- And establishing a reasonable foundation for your opinions necessitates that you rely on the scientific method – -Correct?
- Because without relying on the scientific method you could potentially misinform and mislead this proceeding by relying on subjective hunches and intuitions – -Correct?
- The scientific method necessitates relying on data when making statements about people and behavior – -Correct?
- And there are generally recognized and accepted scientific rules defining when we can and cannot rely on that data – -Correct?
- And therefore your opinions in this case must follow the same generally recognized and accepted scientific rules defining when we can and cannot rely on that data – -Correct?
- You know what a confidence interval is – -Correct?
- Assume that we’re talking about a confidence interval of .05 – – Okay?
- That “0 – 5″ level means that the likelihood that our data is unreliable is only five chances out of one hundred – -Correct?
- Assume that we are talking about a confidence interval of .01 – – Okay?
- That “0 – 1″ level means that the likelihood that our data is unreliable is only one chance out of one hundred – -Correct?
- Now assume that we are talking about a confidence interval of .001 – – Okay?
- That “0 – 0 – 1″ level means that the likelihood that our data is unreliable is only one in a thousand – -Correct?
- In fact, the lowest level of confidence tolerated by science, is the .05 level of confidence – -Correct?
- The scientific method also necessitates that you regard your preliminary opinions as hypotheses – -Correct?
- And the scientific method subjects hypotheses to test, determining if they should be accepted or rejected – -Correct?
- And as you’ve testified, the lowest level of confidence tolerated by science, is the .05 level of confidence – -Correct?
- Offering an opinion to a reasonable degree of [ insert: “psychiatric” or “psychological” or “medical” as required] certainty, necessitates that scientists confine themselves to at least the .05 level of confidence – -Correct?
- As a scientist, you would never rely on coin flipping to determine whether or not you accept a hypothesis – -Correct?
- In other words you would not resort to a method: “If it’s heads, I accept the hypothesis” and “If it’s tails, I reject the hypothesis” – – Correct?
- In fact, it would be unethical for you to rely on that kind of coin flipping – – Correct?
- As an expert witness, your testimony must comply with the constraints of the scientific method – – Correct?
- And if you do not comply with the constraints of the scientific method, you create the risk of misinforming and misleading this proceeding – – Correct?
References
[1]. Federal Judicial Center, (1994). Reference Manual on Scientific Evidence.Washington, D.C.
[2]. Berger, M. (1994). Evidentiary Framework . In Reference Manual on Scientific Evidence. Washington, D.C. ( p. 44)
[3]. Berger, M. (1994). Evidentiary Framework . Id. page 45
[4]. Id. at 88 See also: DeLuca v Merrell Dow Pharmaceuticals, Inc., 911 F 2d 941, 944 (3rd Cir 1990) ( district court concluded after an in limine evidentiary hearing that the expert’s methodology was so unreliable as to warrant exclusion.
[5]. Daubert 509 U S 579, 113 S Ct at 2796.
[6]. Christophersen v Allied-Signal Corp., 939 F 2d 1106, 1114 (5th Cir. 1991)(en banc), cert. denied, 112 S.Ct. 1280 (1992).
[7]. DeLuca v Merrell Dow Pharmaaceuticals, Inc., 911 F 2d 941, 953 (3rd Cir. 1990) aff’d without op. 6 F 3d 778 (3rd Cir. 1993) cert denied, 114 S Ct 691 (1994).
