At PsychLaw.net we know it is a matter of common knowledge that scientific expert testimony is offered in a very high percentage of American trials.[1] The testimony of mental health professionals was first reviewed by the United States Supreme Court in 1908 in Muller v. Oregon, 208 U.S. 412 (1908). Muller was a landmark case dealing with social welfare legislation designed to limit the work day of women. These women typically labored in a factory or laundry up to ten hours. In this case, attorney Louis Brandeis accumulated a substantial body of medical and social science research demonstrating the debilitating effect on women and girls of working long hours. Brandeis presented this material to the United States Supreme Court in a brief defending Oregon’s limits on the number of hours females could be employed. As the Supreme Court upheld the constitutionality of the legislation, it discussed Brandeis’ social science material. The Court declared that although they “may not be, technically speaking, ‘authorities’, the studies would nonetheless receive judicial cognizance.” Since that time, motions and briefs designed to bring the weight of social science research to the attention of the court have been termed “Brandeis briefs”.
In Muller v Oregon the Court made it clear that it wanted good quality scientific data bearing directly on the issues. Today, when any court is asked to admit expert testimony as valid science under Daubert, opposing parties may attack the proof as scientifically invalid or questionable by offering counter proofs.[2] Because of the Federal Rules’ emphasis on liberalizing expert testimony, and the specific requirements of Daubert and Kumho, it is the job of the advocate to lay out the scientific issues for the court’s consideration. At PsychLaw.net we feel this is best accomplished in motion practice.
Nevertheless there’s a problem. As Mr. Chief Justice Rehnquist wrote in Daubert:
“I defer to no one in my confidence in federal judges, but I am at a loss to know what is meant when it is said that the scientific status of a theory depends on its ‘falsifiability,’ and I suspect some of them will be, too.” Daubert 509 U S 579, 113 S Ct at 2800; 125 L Ed 2d at 485.
The Chief Justice continued by explaining that trial court judges are expected to become “amateur scientists,”[3] and warned that science is an “unusual subject matter” for the judiciary. He advocated that the courts should “proceed with great caution . . . because our reach can so easily exceed our grasp”.[4] In any trial where scientific evidence is needed, the “great caution” that the Chief Justice recommends creates a duty and an opportunity for both the advocate of scientific testimony and the would be cross examiner. The duties and responsibilities created by Daubert and Kumho, to keep “junk science” out, and admit only scientifically reliable and valid expert testimony, are described previously in this chapter. The opportunity for the attorney advocating the evidence and the would-be cross examiner, is motion practice.
Rules 26(b)(4) and 26(c)(1) of the Federal Rules of Civil Procedure provide for the discovery of facts known and opinions held by experts. At PsychLaw.net we feel that discovery practice provides the cross examiner with an opportunity to understand the qualifications, grounding and foundational basis of proffered expert testimony. Similarly, Federal Rule Criminal Procedure 16(a)(1)(E) provides that a summary of proposed expert testimony may be obtained prior to trial and the “summary must describe the witnesses’ opinions, the bases and the reasons therefor, and the witnesses’ qualifications.” And Fed. R. Civ. P. 26(a)(Z)(B) requires the report to contain:
“A complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.”
Today, the cross examiner is faced with a new evidentiary world, where the intent of Federal Rule of Evidence 702 is toward “liberal admission” of proposed expert testimony.[5] These rule governed reports, and the additional material gained through discovery, must be used by the would-be cross examiner in motion practice. Doing so avoids the unhappy possibility of a trier of fact hearing some damaging “junk science” that forces the cross examiner to play catch up. For these reasons, we at PsychLaw.net are providing numerous sample motions each accompanied by a memorandum of law. We have designed these sample motions and memoranda to demonstrate an integration of the material in the text. They will also aid the cross examiner in directing the gatekeepers attention to important issues of scientific reliability and validity before a jury is seated.
As unprepared for an analysis of scientific issues as gatekeepers too often are, they are given broad discretion in evidentiary rulings[6]. As a result, it is particularly important to rely heavily upon pre-trial motion practice and the hearings which should be granted under Daubert and Kumho. The would-be cross examiner of suspected “junk science” must bear in mind that trial judges are rarely overruled in these decisions.[7] For these reasons, it is essential to ask for a Daubert hearing.
[1]. See, i.e.: Gross, S. R. (1991). Expert Evidence, Wis. L. Rev. 1113, 1118-19 Presenting the findings of a survey of 529 civil jury trials conducted in California Superior Courts in 1985 and 1986.
[2]. For example, see: U.S. v. Velasquez, 64 F.3d 844, 849-852, 42 Fed. R. Evid. Serv. (LCP) 1175 (3d Cir. 1995) [A drug trial wherein the Third Circuit concluded that it was error to exclude defense evidence on lack of standards in field of handwriting analysis simply because trial court determined that the proof was sufficiently reliable to be admitted under FRE 702. The Third Circuit appellate panel concluded that expert testimony on handwriting analysis is clearly admissible and decided to apply Daubert in order to be cautious. As this was a pre Kumho Tire Company, Ltd. v Carmichael, ___ U. S. ___, 119 S.Ct. 1167; 143 L.Ed.2d 238 (1999) case. Under the Daubert standard, the defense counter proof should have been admitted since “the same considerations that inform the court’s legal decision to admit evidence under Rule 702 may also influence the factfinder’s determination as to what weight such evidence … should receive”.
[3]. Id. 113 S Ct. 2786, at 2800.
[4]. Id. 113 S Ct. 2786, at 2797.
[5]. See, i.e.:Habecker v Cooperloy Corp, 893 F2d 49, 29 Fed Rules Evid. Serv 452 (1990) It is the intent of FRE 702 to endorse the “liberal admission” of expert testimony, and “liberal qualification” of experts.
[6]. Trial judge has broad discretion. United States v. Shay, 57 F.3d 126, 134 (1st Cir. 1995) Trial court’s decision entitled to great deference).
1st Circuit United States v. Shay, 57 F.3d 126, 134 (1st Cir. 1995) Trial court’s decision entitled to great deference.
2d Circuit See, e.g., United States v. Aminy, 15 F.3d 258, 261 (2d Cir. 1994) In an expert witness / testimony review, the appellate court ruled that it was not error to admit expert evidence that foil wrapping of heroin was similar to that used by known drug dealers.
4th Circuit See, e.g., Maryland Cas. Co. v. Therm-O-Disc, Inc., 137 F.3d 780, 783 (4th Cir. 1998) Daubert requires only that trial judge make a “preliminary assessment” of whether proffered expert testimony is both reliable and helpful; plaintiffs do not have to prove that assessments of their experts are correct, they only have to demonstrate that their opinions are reliable.
5th Circuit Snap-Drape, Inc. v. Commissioner, 98 F.3d 194, 197 (5th Cit. 1997). cert. denied, – U.S. -, 118 S. Ct. 77 (1997) “The decision whether to admit expert testimony is entrusted to the sound discretion of the trial court and is reversible on review only for abuse of discretion.”
6th Circuit See, e.g., United States v. August, 745 F.2d 400, 407 (6th Cir. 1984) It was not an abuse of discretion to allow a statistician to testify in a case alleging manipulation of blind draw system, that the system assigned cases to judges in intended random fashion.
7th Circuit See, e.g., United States v. Stevenson, 6 F.3d 1262, 1266 (7th Cir. 1993) It was not error to allow a drug enforcement agent to testify as an expert on distribution amounts in narcotics case.
8th Circuit See Johnson Group, Inc. v. Beecham, Inc., 952 F.2d 1005, 1007 (8th Cir. 1991) It was not an abuse of discretion to allow expert testimony despite the possibility that the expert’s testimony included legal conclusions.
10th Circuit See, e.g., State Office Sys. v. Olivetti Corp., 762 F.2d 843, 845-846 (10th Cir. 1985) It was not an abuse of discretion to allow the testimony of a company president on financial records given the witness’s knowledge and experience.
11th Circuit See, e.g.,United States v. Burchfield, 719 F.2d 356, 357-358 (11th Cir.1983) It was not an abuse of discretion to permit expert testimony on commonly used counterfeit-bill-passing techniques.
D.C. Circuit United States v. Gatling, 96 F.3d 1511, 1523 (D.C. Cir. 1996) The trial court has broad discretion in determining whether to admit or exclude expert testimony.
[7]. For some recent examples of cases wherein a request has been to overrule an admissibility decision on scientific evidence, see, i.e.:
1st Circuit See, e.g., United States v. Sepulveda, 15 F.3d 1161, 1183 (1st Cir. 1993) cert. denied, 512 U.S. 1223 (1994) Affirming trial court, both in its denial of motion in limine to exclude expert testimony and in its subsequent decision to strike testimony when cross-examination revealed it to have been based on inadequate foundation.
2d Circuit See, e.g., Andrews v. Metro North Commuter R.R. Co., 882 F.2d 705,707-708 (2d Cir. 1989) A forensic engineer’s testimony was improper when matters were not “beyond the jury’s ken”.
3d Circuit See, e.g., Paoli R.R. Yard PCB Litig. v. Monsanto Co., 916 F.2d 819, 855-856 (3d Cir. 1990). cert. denied, 499 U.S. 961 (1991) (Paoli) The trial court’s insistence on certain credentials to qualify witness was abuse of discretion.
4th Circuit See. e.g., Scott v. Sears, Roebuck & Co., 789 F.2d 10512, 1055-1056 (4th Cir. 1986) An expert’s statistical evidence should have been excluded as unhelpful because it merely repeated common knowledge.
5th Circuit See, e.g., In re Air Crash Disaster at New Orleans, La., 795 F.2d 1230,1233-1235 (5th Cir. 1986) It was an abuse of discretion to admit testimony where expert’s assumptions had no reasonable basis.
6th Circuit See, e.g., CMI-Trading, Inc. v. Quantum Air. Inc., 98 F.3d 997, 990 (6th Cir. 1996) The district court “is accorded wide discretion in determining the admissibility of evidence challenged as irrelevant”.