Quoting from Judge Learned Hand in: Hand, Historical and Practical Considerations Regarding Expert Testimony, 15 Harv. L.Rev. 40, 54 (1901), the Supreme Court explained in Kumho that experts of all kinds tie observations to conclusions through the use of “general truths derived from … specialized experience.”.[1] To meet the validity and reliability challenge, the Court instructed that the gatekeeper:
- Must have considerable leeway in deciding whether the proposed testimony and the proposed expert is reliable;[2]
- Must determine the validity of the expert’s opinion, qualifications and the reliability of the proposed testimony[3] – and –
- The proffered expert’s opinion, must demonstrate a valid connection to the pertinent facts as a precondition to admissibility.[4]
It is our position at PsychLaw.net that the well prepared cross examiner will never overlook considerations of reliability and validity when dealing with mental health professionals.[5] Issues of reliability may be compromised when mental health professionals are allowed to rely on the opinions of others when giving expert testimony.[6] In some cases the sources upon which an expert relies for their opinions are of such little value that the testimony will not assist the jury in arriving at an intelligent and sound verdict. In such cases, the rule requires the gatekeeper to examine the reliability of an expert’s sources to determine whether they satisfy the threshold established by the rule.[7]
Simply stated, validity involves correct application. We at PsychLaw.net define six kinds of validity in our glossary and explain that validity is the process by which we attempt to accurately communicate. Following Daubert many courts have laid down bright validity lines for admissibility:
- Expert testimony is to be based upon scientific knowledge that will assist the trier of fact, not upon generally acceptable theory. Hopkins v Dow Corning Corp., 33 F. 3d 1116 (9th Cir. 1994);
- Expert testimony lacks sufficient scientific validity to be admissible absent scientific studies on expert’s theories, scientific peer review or general acceptance of theories or methodology. Sorensen v Shaklee Corp., 31 F.3d 638 (8th Cir. 1994);
- Expert testimony must be based upon scientifically valid reasoning. Expert’s belief on probable cause is not admissible in the absence of adequate explanation of how the witness’s expertise enables the expert to testify on the likely cause of injury. Watkins v Schriver, 52 F.3d 769 (8th Cir. 1995);
- The court may consider whether the expert’s theory has been tested, subject to peer review, published, generally accepted and has a known rate of errors. Peitzmeier v Hennessy Industries, 97 F.3d 293 (8th Cir. 1996);
- At a minimum, a recognized group of scientists in the field must accept the expert’s methodology as scientifically reliable.Lust v Merrell Dow, 89 F.3d 594 (9th Cir. 1996); and
- The court must determine that expert’s opinion has scientifically valid methodology which can be applied to the factual dispute. Allen v Pennsylvania Engine Corp. 192 F.3d 194 (5th Cir. 1996)
Shielding the Jury from Prejudicial “Junk Science”
We at PsychLaw.net emphasize that like most other evidence, expert testimony is subject to Rule 403 balancing. The Supreme Court stated that because expert testimony can be both powerful and misleading, trial judges exercise more Rule 403 control over expert testimony than lay witness testimony.[8] Following the Rules 401, 702 and 703 challenges described previously, the well prepared cross examiner can use the Daubert hearing and voir dire to attack proffered expert testimony on prejudicial grounds. In this way, the cross examiner asks the gatekeeper to employ a Rule 403 analysis that balances the probative value of an expert’s opinion, against the dangers of prejudice, confusion, and waste of time. This should also be done when evaluating the reasonableness of the data underlying an expert’s opinion [FRE703]. As a corollary, the argument must be made that the probative value of an expert’s opinion must outweigh its prejudicial effect under Rule 403 for the opinion to be admissible under Rule 703.[9]
Scientific testimony often carries an “aura of infallibility.” Summarizing the literature, one respected commentator writes that:
“[t]here is virtual unanimity among courts and commentators that evidence perceived by jurors to be ‘scientific’ in nature will have particularly, persuasive effect.”[10]
The cross examiner must call upon the gatekeeper to use a Rule 403 analysis of the proposed testimony as it may tend to confuse and often uses prejudicial language.[11] Also, mental health professionals may speak to statistical analysis of their data and the cross examiner must be on guard against unfair prejudice in the language that is used in these situations.[12]
We at PsychLaw.net emphasize the necessity of shielding jurors from “junk science” by using the Rules and decisional law to aid the gatekeeper in making these important evidentiary rulings. Consider a well-known study published in 1973 that found no connection between asbestos and mesothelioma. Mesothelioma is the cruel form of lung cancer that we now know is linked uniquely to asbestos. The study found no connection because, in a review of mortality among retirees from 26 asbestos plants, only one retired worker had died of mesothelioma. The problem was that most of the workers who contracted mesothelioma, and many did, died before reaching retirement age. Consequently, the study included data obtained only from healthy workers. Despite this glaring flaw, this peer-reviewed, published study was not retracted until six years later.[13]
It is true that effective cross-examination may prevent misleading a jury. Nonetheless, we at PsychLaw.net recommend getting the job done before a jury is ever seated.[14]
The Problem of Creeping Hearsay.
As Federal Rule of Evidence 703 does not require the facts or data the expert relies upon to be admitted into evidence,[15] the cross examiner must work diligently to accomplish a Rule 703 “reasonable reliance,” and Rule 403 “more prejudicial than probative,” showing before trial. Certainly, mental health professional rely on much that may not be admissible. The problem for the cross examiner is that these same professionals, when called to testify, believe that this portion of the evidence rule creates a via regia for hearsay.[16]
While the Rule does not require personal knowledge and allows experts to form opinions on the basis of data that may otherwise be inadmissible, the cross examiner must guard against the use of 703 as akin to a hearsay exception. We at PsychLaw.net teach that the best way to manage this difficult task is with a demand for full disclosure. Next, careful scrutiny of the data relied upon for reliability, validity and trustworthiness, must be accomplished.[17] In this way, prejudicial hearsay, which may otherwise creep into the record, may be bared at the door.
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[1]. Kumho Tire Company, Ltd. v Carmichael, ___ U. S. ___, 119 S.Ct. 1167,at 1174; 143 L.Ed.2d 238 (1999).
[2]. Id. at 119 S.Ct. 1167 at 1176.
[3]. Id. at 119 S.Ct. 1167 at 1176 – 1177.
[4]. Id. at 119 S.Ct. 1167 at 1174.
[5]. For example, see: Baumholser v Amax Coal Co., 630 F.2d 550, 553 (7th Cir. 1980) Where the reviewing court found no prejudicial error when trial judge improperly admitted geology survey relied on by expert because the trial judge allowed extensive cross-examination on reliability and the opponents produced their own experts to testify on issue. See, also: TK-7 Corp. v. Estate of Barbouti, 993. F. 2d 722, 732- 733 (10th Cir. 1993) Where an expert was not allowed to rely on opinions of other experts because his unfamiliarity with methods and reasons underlying other expert’s conclusions precluded effective cross-examination concerning reliability.
[6]. Kibert v Peyton, 383 F.2d 566 (4th Cir. 1967) An expert witness is permitted to take into account the testimony of others as to what they observed; United States v. 1,014.16 Acres of Land, 558 F. Supp. 1238, 1242 (W.D. Mo. 1983), aff”d, 739 F.2d 1371 (8th Cir.1984) An expert is allowed to rely on, among other things, opinions of other experts.
[7]. See, i.e.: Slaughter v Southern Talc Co., 919 F.2d 304 (5th Cir. 1990).
[8]. See, i.e.: Daubert v Merrell Dow Pharmaceuticals, Inc, 509 U.S. 579; 113 S.Ct. 2786, 2798 (1993) quoting J. Weinstein, Rule 702 of the Federal Rules of Evidence is Sound; It Should Not Be Amended, 138 F.R.D. 631, 632 (1991).
[9]. For examples of expert testimony being subject to Rule 403 analysis. See, i.e.: Emigh v. Consolidated Rail Corp., 710 F. Supp. 608, 612 (W.D. Pa. 1989) Where the court held that Fed. R. Evid. 703 may not be used as “backdoor” to get evidence before jury. For more examples of unfair prejudice, see. i.e.:
1st Circuit – See, e.g., Lynch v. Merrell-Nat’l Labs. Div. of Richardson-Merrell. Inc., 646 F. Supp. 856, 866-867 (D. Mass. 1986). aff’d, 830 F.2d 1190 (1st Cir. 1987) The court ruled that studies of analogous chemical structures relied on by plaintiffs’ experts could not be used to show causation. because of their highly speculative nature; citing Fed. R. Evid. 401-403. 703.
2d Circuit – See, e.g., Shatkin v. McDonnel-Douglas Corp., 727 F.2d 202. 208 (2nd Cir. 1984) The trial court excluded opinion based on assumptions so unrealistic and contradictory as to suggest bad faith; citing Fed. R. Evid. 403, 703; Mathie v. Fries, 935 F. Supp. 1284, 1295 1296 (E.D.N.Y. 1996). aff’d and modified on other grounds, 121 F.3d 808 (2nd Cir. 1997) Where evidence of rape-trauma syndrome, although generally accepted in relevant scientific community, was seen to be inadmissible when offered merely to prove that sexual assault took place or to bolster witness’s credibility. because potential value of evidence was outweighed by undue prejudice to defendant.
7th Circuit – See, e.g., Nachtsheim v. Beech Aircraft Corp., 847 F.2d 1261, 1270-1271 (7th Cir. 1988) Where the court used Fed. R. Evid. 403 analysis to exclude expert opinion under Fed. R. Evid. 703.
[10]. McCormick, et al., (1995) Evidence § 203, at 876. See, also: Strong, J. W. (1992). Language and Logic in Expert Testimony Limiting Expert Testimony by Restrictions of Function, Reliability, and Form, 71 OR. L. Rev. 349, 361; and see: Vidmar, N.J. & Schuller, R.A. (1989). Juries and Expert Evidence: Social Framework Testimony, LAW & CONTEMP. PROBS., Autumn 1989, at 133, 166 (footnote omitted); also see e.g., Commonwealth v. Garcia, 588 A.2d 951, 955 (Pa. Super. Ct. 1991), appeal denied, 604 A.2d 248 (Pa. 1992) Instructing that “Jurors are human and may be unduly impressed by an expert, his credentials, and ultimately his opinion, ‘even though, upon reflection, they would realize that in the particular field under discussion they are as much at home as the expert.’”.
[11]. Courts rely on Rule 403 to exclude opinions which are couched in terms that may be clearly prejudicial even though the gist of the opinion is admissible. A judge might, for instance, find the terms “voiceprint” or “DNA print” objectionable as suggesting an analogy to fingerprints that might cause a juror to overvalue the worth of the expert’s opinion. In cases involving allegations of child sexual abuse, experts are fond of describing a child’s story as a “disclosure” so as to lend credibility to the expert’s sense that abuse really happened.
[12]. Courts have relied on Rule 403 when they fear that statements of statistical probability might be over persuasive and thus prejudice the jury. In United States v. Massey, 594 F.2d 676, 680 (8th Cir. 1979) for example, the court reversed on the basis of plain error. The prosecution’s expert witness who identified a hair sample as identical to one taken from the defendant testified to some statistical probabilities as to which no foundation had been established.
[13]. See Sharon Begley, The Meaning of Junk Science, NEWSWEEK, Mar. 22, 1993, at 64. See, also: Faigman,D. L. (1989). To Have and Have Not: Assessing theValue of Social Science to the Law as Science and Policy, 38 Emory L.J. 1005.
[14]. One of the real problems with waiting until trial is illustrated in these holdings:
United States v. L.E. Cooke Co., 991 F.2d 336, 342 (6th Cir. 1993) The reviewing court ruled that the exclusion of testimony due to the danger of misleading the jury was not a ground for reversal because the opposing party had an opportunity to refute testimony during cross-examination; and see: Singer Co. v. E.I. du Pont de Nemours & Co., 579 F.2d 433, 443 (8th Cir. 1978) Where the trial court refused to strike expert testimony as unsupported speculation on the ground that it was for the jury to value the worth of the opinion with the assistance of vigorous cross-examination.
[15]. Underlying facts or data need not be admissible. See, i.e.:
3d Circuit – See, e.g., United States v. Theodoropoulos, 866 F.2d 587, 590 (3rd Cir. 1989) Expert testimony decoding intercepted telephone conversations, some in foreign language, was admissible even though some of expert’s conclusions drawn from material not in evidence.
5th Circuit – See, e.g., Marcel v. Placid Oil Co., 11 F.3d 563, 567-568 (5th Cir. 1994) Experts may rely on hearsay if data is reliable and otherwise qualifies under Fed. R. Evid. 703.
7th Circuit – See, e.g., Finchum v. Ford Motor Co., 57 F.3d 526, 531-532 (7th Cir. 1995) A Plaintiff’s expert was entitled to rely on published article about occupant safety during rear impact collision although article itself was inadmissible hearsay; and Baumholser v. Amax Coal Co., 630 F.2d 550, 553 (7th Cir. 1980) Where an expert was entitled to rely on hearsay evidence to support his opinion. But the evidence itself should not have been admitted; see also United States v. Madoch, 935 F. Supp. 965, 972-974 (N.D. 111. 1996) Where a psychiatrist evaluating the defendant on court order was entitled to rely on defendant’s self-report of physical and emotional abuse in reaching her diagnosis although the statements were hearsay. The court went on to rule that the statements the psychiatrist “reasonably relied upon in reaching [ her] opinion may be disclosed to the jury to help the jury understand and evaluate” its basis because Seventh Circuit admits all statements made for purpose of medical diagnosis. To either treating or nontreating physicians, to same extent whether applying Fed. R. Evid. 703 or Fed. R. Evid. 803(4).
8th Circuit – See. e.g., South Cent. Petroleum, Inc. v. Long Bros. Oil Co., 974 F.2d 1015, 1018-1019 (8th Cir. 1992) The district court properly allowed an expert to rely on information obtained from a commercial production service that received its information from the state, which in turn received its information from a well operator, even though the underlying data was inadmissible.
9th Circuit – See, e.g., Doe v. Cutter Biological, Inc., 971 F.2d 375, 385-386 (9th Cir.1992) The district court abused its discretion in excluding affidavits of plaintiffs’ three experts on ground that their opinions were not based on “any facts within affiant’s personal knowledge.”
10th Circuit – See, e.g., United States v. Davis, 40 F.3d 1069. 1075 (10th Cir. 1994).cert. denied, 514 U.S. 1088 (1995) It was proper for an expert to rely on technicians and their notes.
11th Circuit – See, e.g., First Nat’l Bank of Luisvilie v. Lustig,. 96 F.3d 1554, 1576 (11th Cir. 1996) Experts may rely on hearsay evidence in forming their opinions; United States v. Chandler, 950 F. Supp. 1545, 1565-1566 (N.D. Ala. 1996) An expert in drug trade was entitled to form and testify to opinions based on inadmissible facts, including hearsay.
[16]. Here are some recent examples of hearsay as the basis for testimony:
2d Circuit – See. e.g., New York State Ass’n for Retarded Children v. Carey, 706 F.2d 956. 961 (2nd Cir.). cert. denied, 454 U.S. 1150 (1983) An expert’s opinion based on out-of-court statements obtained for purpose of enabling expert to express opinion was admissible.
3d Circuit – See, e.g., United States v. Scarfo, 711 F. Supp. 1315, 1344-1345 (E.D. Pa. 1989). aff’d, 910 F.2d 1084 (3rd Cir. 1990) The trial court allowed the prosecution expert in racketeering trial, to express an opinion on cause and time of murder victim’s death.,where the expert relied on findings of medical examiner.
5th Circuit – See, e.g., Marcel v. Placid Oil Co., 11 F.3d 563, 567-568 (5th Cir. 1994) Experts generally may rely on hearsay, such as study, if data is reliable and qualifies under Fed. R. Evid. 703.
7th Circuit – See. e.g., United States v. Brown, 7 F.3d 648, 653 (7th Cir. 1993) A witness properly based his opinion on types of evidence relied on by experts in narcotics, specifically, his examination of physical evidence and police reports.
8th Circuit – See. e.g., South Cent. Petroleum, Inc. v. LongBros. Oil Co., 974 F.2d 1015, 1018-1019 (8th Cir. 1992) An expert was permitted to rely on information obtained from commercial production service.
9th Circuit – See, e.g., Doe v. Cutter Biological, Inc., 971 F.2d 375, 385-386 (9th Cir. 1992) The trial court erred in excluding affidavits of plaintiffs’ three experts based on their knowledge of the medical literature.
10th Circuit – See. e.g., United States v. Davis, 40 F.3d 1069. 1075 (10th Cir. 1994) It was proper for expert to rely on technicians and their notes.
[17]. See, i.e.: In re Japanese Elec. Prod. Antitrust Litig., 723 F.2d 238, 285 (3rd Cir. 1983), rev’d on other grounds sub nom. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) Full disclosure of the hearsay source underlying an expert opinion creates a foundation for an analysis of its trustworthiness and reliability.