As the Supreme Court instructed in Daubert: “the expert’s opinion must have a reliable basis in the knowledge and experience of his discipline.” 113 S Ct at 2796; 125 L Ed 2d at 482. Compared to lay witnesses, experts purport to offer testimony that is scientific; and the Court offered that the term “scientific” implies a “grounding in the methods and procedures of science.” Id. 113 S Ct at 2795; 125 L Ed 2d at 481. The word “knowledge,” the Court instructed, “connotes more than subjective belief or unsupported speculation.” Id. The Court made it clear that:
“…in order to qualify as ‘scientific knowledge’, an inference or assertion must be derived by the scientific method. Proposed testimony must be supported by appropriate validation – i.e., ‘good grounds,’ based on what is known.” Id.113 S Ct at 2795; 125 L Ed 2d at 481.
The Court’s instruction to the trial courts was that when “expert,” or “scientific” testimony is offered:
“…the trial judge must determine at the outset, pursuant to Rule 104 (a), whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.” Id. 509 U S 579, 113 S Ct at 2796; 125 L Ed 2d at 482 emphasis added
At PsychLaw.net we remind that Rule 104(a) of the Federal Rules of Evidence provides that opposing counsel may voir dire a witness before the witness is permitted to testify as to his or her opinion. Questions relating to qualifications may also be pertinent to a motion to exclude evidence on the basis of Federal Rule of Evidence 702. Such motions would contend that the expert will not assist the trier of fact [FRE 702] and that the expert does not know the datum of his or her discipline [FRE 703]. At PsychLaw.net we feel that in order to aid to the gatekeeper, a good vior dire examines an expert’s qualifications, his/her knowledge of the datum of their discipline, and attempts to answer the questions posed in the previous posts. As the First Circuit informed: “…Voir dire is an extremely helpful device in evaluating proffered expert testimony….”[1], [2]
Concerning the gatekeeper’s ongoing responsibilities, the First Circuit also held that Daubert was intended to liberalize the trial court’s discretion concerning scientific expert testimony. As a result, it laid down a clear expectation that the trial judges will make continuing sub silentio rulings on the validity of proffered scientific evidence.[3] Speaking to the utility of voir dire and Daubert hearings, the Third Circuit has offered:
“[A]fter Daubert, we no longer think that the distinction between a methodology and its application is viable. [I]t is extremely elusive to attempt to ascertain which of an expert’s steps constitute parts of a ‘basic’ methodology and which constitute changes from that methodology.”[4]
With these issues in mind, we at PsychLaw.net have appended a motion to conduct an extended voir dire together with a memorandum of law in support. This motion and memorandum directs the gatekeeper’s attention to the critical issues of evidentiary reliability, validity and “fit.” This is particularly important with mental health professionals because of the profound ethical issues involved. For example, the would-be cross examiner will want to use an extended voir dire, to inquire about:
-
- Education
- Training
- Professional experience
- Knowledge of the datum of the expert’s discipline
- Research activities and Publications – and –
- Professional Ethical Issues:
Credentials.
Through discovery the attorney conducting voir dire will work to describe the expert’s curriculum vitae and personal resume as thoroughly lacking in “fit” for the issues at hand. Occasionally, outright fraud may come to light. Falsehoods in the expert’s curriculum vitae and personal resume, will lead the gatekeeper to a conclusion there are falsehoods in the report as well.
Conflicts of Interest.
Conflicts of interest can provide a legal basis for challenge and court ordered disqualification of an expert witness. In Chapter Two of Cross Examining Experts in the Behavioral Sciences, we describe the conflict between treating therapist and expert witness. Also, a conflict of interest presents a viable area of examination which may go to weight later on by impugning the expert’s integrity.
Employment Beyond Competency.
An expert unfamiliar with the datum of his or her discipline or just out of their depth, will be exposed by careful voir dire. The goal is to show that the employment by the other side, simply beyond the witness’ experience and capability.
Improper Attorney Influence.
Pre hearing discovery is the best way to expose efforts by sponsoring counsel to influence the professional expert opinions. Normally such correspondence is not privileged in any way unless it is pure attorney work-product and was not relied on by the expert in forming a professional opinion. In the event the witness has relied in whole or in part on any of the data exchanged in communication with counsel, this information is proper for production and examination during voir dire.
Contingent Fee.
Occasionally, an expert will take a “bonus” at the completion of trial when a particular side is successful. This is sometimes found in civil rights litigation, where attorney fees are part of the recovery and padded bills are then affixed. Obviously if an expert’s compensation is driven by a contingency outcome, the objective orientation of the “scientist” is lost.
Creating Conclusions Before Research.
A meticulous file analysis may occasionally demonstrate that an expert opinion or conclusion was reached before any research was done. This is often found where the expert proposes to testify from “clinical experience”. As we illustrate in Chapter Three of Cross Examining Experts in the Behavioral Sciences, clinical experience often amounts to nothing more than speculation. When an expert’s testimony relies on little “more than subjective belief or unsupported speculation”, 113 S Ct at 2795; 125 L Ed 2d at 481 and voir dire exposes this inadequate foundation, the witness should be stricken.
Investigation not done.
Often, a close examination of a mental health professional’s time records, notes, raw test data, and/or file reports, reveals that a purported investigation was simply not accomplished. This is frequently found as an artifact of the anchoring biases we discuss in Chapter Three of Cross Examining Experts in the Behavioral Sciences.
Intentionally Ignoring Data.
Voir dire of experts frequently exposes their anchoring biases, and their overlooking the rule in / rule out problems, discussed in Chapter Three of Cross Examining Experts in the Behavioral Sciences. In particular, experts too often ignore relevant data. This may also occur when counsel or clients do not reveal all requisite data, or by the expert turning a professional blind-eye to relevant alternative hypotheses. This can be seen as an outcome of the PIASH effect.[5]
Use of False Data.
Falsified information in notes, testing, records, reports, or other basic data must be discovered and utilized in voir dire. We recommend meticulous preparation by counsel prior to voir dire, with special attention paid to the claims made by mental health professionals as discussed in Chapter Three of Cross Examining Experts in the Behavioral Sciences. This preparation will occasionally uncover a proffered expert so wedded to antiquated and anecdotal data as to render their opinions entirely unreliable.
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[1]. Cortes-Irizzary v Corporacion Insular, 111 F.3d 184, 188 (1st Cir. 1997).
[2]. See, also: Faigman, D. L; Porter, E. & Saks, M. J. (1994). Check your Crystal Ball at the Courthouse Door, Please: Exploring the Past, Understanding the Present, and Worrying About the Future of Scientific Evidence, 15 Cardozo L. Rev. 1799:
The Court has served notice that experts should trade in their crystal balls for electron microscopes. But the success of this move into the twentieth century largely depends on the law’s proper understanding of the crossroads at which law and science meet. “Becoming scientifically literate should prove to be continuing challenge to the law.” Id. at 1801 “It is . . . vitally important that a rigorous and thorough analysis of scientific data be undertaken before those data are admitted into evidence. This task is made difficult because of the general lack of scientific literacy among Americans, including lawyers and judges.”
There also is empirical data that suggests litigants express greater satisfaction in proceedings that allow their attorneys and not the presiding tribunal, to have direct control over the presentation of relevant evidence. See, e.g., Thibaut, J. & Walker, L. (1978). A Theory of Procedure, 66 Calif. L. Rev. 541. See also Lind, A. E. & Tyler,T. R. (1988). The Social Psychology of Procedural Justice; Thibaut, J. & Walker, L. (1975). Procedural Justice: A. Psychological Analysis.
[3]. See, i.e.: Hoult v Hoult, 57 F.3d 1 (1st Cir. 1995).
[4]. See, i.e.: In re Paoli Railroad Yard Litigation, 35 F.3d 717, 745-750 (3rd Cir. 1994). The Court went on to opine that under Rule 703, the trial judge must make an independent evaluation of the reasonableness of the reliance by experts in the particular field on the particular type of data proffered.
[5] See, e.g., Campbell, T.W.. (2002). The piash effect: Psychotherapy-influenced allegations of sexual harassment. American Journal of Forensic Psychology. 20. 53-68 The post-event information effect influences the recall of ambiguous events open to interpretation. Applying data related to confirmatory bias, mood-congruent memory, source monitoring errors, attribution theory, and stereotyping demonstrates how psychotherapy can taint the memories of plaintiffs in harassment matters. Plaintiffs can be expected to express therapeutically constructed memories with genuine sincerity. As a result, cross-examination attempting to impeach plaintiffs as fabricating is ill-advised in these circumstances.