With the conclusion of the Daubert trilogy,[1] our courts face the daunting task of applying criteria of validity[2] and reliability[3] to all proposed expert testimony.[4] This comes at a time when testimony from the behavioral sciences[5] is growing at an exponential rate.[6] Unfortunately, research demonstrates that our courts are not prepared for this important task.[7] Certainly, our courts are not in a position to become amateur scientists,[8] and the costs involved in hiring neutral “expert” experts [9] is clearly prohibitive in most cases.
Fortunately, at PsychLaw.net we find that the relevant research demonstrates that with access to the tools of scientific reasoning, judgments concerning validity and reliability dramatically improve.[10] But where the courts’ have sought to educate themselves for their gatekeeping responsibilities, a difficult tension has developed because of the strictures against the acquisition of knowledge ex parte.[11]
The intersection of the behavioral sciences and law is not new. Behavioral scientists have been informing legal proceedings for hundreds of years. Indeed, since the twelfth century the law has recognized mental incapacity as a defense to criminal conduct.[12] Then, 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). Since then, behavioral science expertise has been applied to a wide variety of situations where litigant characteristics may be in issue.
For as long as mental status has been legally relevant in criminal prosecutions, behavioral scientists have been asked to address a defendant’s mental state both at the time of the crime, and at the time of the trial.[13] Behavioral scientists have been asked to provide expert testimony concerning whether an individual’s behavior and characteristics fit within a particular profile (e.g., as a drug courier);[14] or whether the individual experienced delayed memories of childhood sexual abuse;[15] or whether a child sexual abuse survivor was experiencing a syndrome.[16]
For example, at PsychLaw.net we look to a recent text Psychological Evaluations for the Courts which describes nine types of competency examinations, six mental state defenses, five sentencing evaluations, eight civil commitment exams and eighteen additional psychological evaluations courts routinely ask for.[17] Assessments of dangerousness serve as additional examples of the legal system seeking guidance from the behavioral sciences. Assessing dangerousness typically addresses whether the individual is presently dangerous, or likely to be dangerous in the future.[18] Decisions involving a finding of dangerousness include:
- Decisions to grant bail, and the level at which bail is set;
- Decisions concerning the waiver of juveniles charged with serious crimes in adult courts;
- Sentencing decisions following criminal convictions, including release on probation;
- Decisions regarding work-release and furlough programs for incarcerated offenders;
- Parole and other conditional-release determinations for offenders;
- Decisions regarding whether to remove a child from the home in child abuse or battery cases;
- Decisions to commit or release persons committed under quasi-criminal statutes for sex offenses;
- Resolutions to civilly commit criminal defendants after having been found incompetent to stand trial or when found not guilty by reason of insanity and release procedures for these individuals;
- Decisions regarding the special handling of disruptive prisoners;
- Decisions regarding the transfer of civilly committed patients to hospitals with security;
- Commitment of drug addicts;
- Findings concerning the emergency and long-term involuntary commitment of the mentally ill;
- Decisions concerning conditional and unconditional release of involuntary committed mentally ill patients;
- Decisions concerning the continuing hospitalization of criminal defendants found not guilty by reason of insanity;
- Decisions to employ special legal provisions or sentencing proceedings for habitual offenders; and
- Decisions to impose the death penalty.[19]
The value of behavioral science information is not limited to understanding mentally ill persons, dangerous persons, or other populations of concern to the law. Expertise from the behavioral sciences can be used to address the characteristics of litigants in numerous situations. Indeed, the US Supreme Court has dealt with behavioral science evidence many times. For instance, in Lockhart v McCree, 476 US 162, 106 S Ct 1758 (1986), the Court was asked to consider the constitutional significance of the behavioral science research that described capital juries as biased in favor of the prosecution. Jurors who could not impose the death penalty were being systematically removed from capital panels.[20] The relevant research demonstrated that this later group of jurors were less inclined to convict defendants in capital cases.
Today, judges are required to work hard to understand behavioral science data. In Daubert v Merrell Dow Pharmaceuticals Inc., 509 U S 579, 113 S Ct 2786, (1993), the United States Supreme Court held that:
“…the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” 113 S Ct at 2795.
Compared to lay witnesses, experts purport to offer testimony that is scientific. Justice Blackmun indicated that by using the term “scientific”, the witness implies a “grounding in the methods and procedures of science”. Id. 113 S Ct at 2795. 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.
Basing its rule as to admissibility on reasoning and methodology, the Court quoted from a learned treatise and offered:
“Scientific methodology today is based on generating hypotheses and testing them to see if they can be falsified; indeed, this methodology is what distinguishes science from other fields of human inquiry.” Id. 509 U S 579, 113 S Ct at 2796.
The Court instructed that there is now a “Key Question” which must be answered and that is:
“..whether a theory or technique is scientific knowledge that will assist the trier of fact will be whether it can be (and has been) tested…” emphasis added Id. 509 U S 579, 113 S Ct at 2796.
The Court’s instruction to the trial courts was that when “expert”, “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.
Because experts are permitted wide latitude in their opinions and are not required to base their pronouncements on first-hand knowledge, the Court required that “the expert’s opinion must have a reliable basis in the knowledge and experience of his discipline”. 113 S Ct at 2796. We at PsychLaw.net find that in this analysis, courts are required to excuse proposed experts who do not have a grasp of the “knowledge and experience of [their] discipline”.
Emphasizing that the “focus….must be solely on principles and methodology” 509 U S 579, 113 S Ct at 2797, the Court’s analysis cites to United States v Smith, 869 F2d 348, 353-354 (CA7 1989) and informs that “error rate” in the predictions and techniques espoused in the opinions of the experts must be considered. Id. 509 U S 579, S Ct at 2797; 125 L Ed 2d at 483.
Grounding its admissibility analysis in the principles and methodology of science, the Court notes:
“….that scientists typically distinguish between ‘validity’ (does the principle support what it purports to show?) and ‘reliability’ (does application of the principle produce consistent results?)…..our reference here is to evidentiary reliability–that is, trustworthiness…..In a case involving scientific evidence, evidentiary reliability will be based upon scientific validity.” Daubert 509 U S 579, 113 S Ct at 2795 n. 9, emphasis in original.
1 The Daubert trilogy is: Daubert v Merrell Dow Pharmaceuticals, Inc, 509 US 579; 113 S Ct 2786 (1993); Joiner v General Elec Co, 78 F3d 524, 529 (CA 11, 1996), reversed as: General Electric Co. v Joiner, 522 US 136; 118 S Ct 512 (1997); Kumho Tire Company, Ltd. v Carmichael, 526 U.S. 137; 119 S.Ct. 1167 (1999).
2 See: Daubert v Merrell Dow Pharmaceuticals, Inc, 509 US 579; 113 S Ct 2786 at 2795; n. 9, (1993) “In a case involving scientific evidence, evidentiary reliability will be based upon scientific validity.” emphasis in original. And see: Kumho Tire Company, Ltd. v Carmichael, 526 U.S. 137; 119 S.Ct. 1167 at 1174: Expert testimony must demonstrate a valid connection to the pertinent facts as a precondition to admissibility.
3 See: Daubert 509 U S 579, 113 S Ct 2786 at 2795; n. 9 “…scientists typically distinguish between ‘validity’ (does the principle support what it purports to show?) and ‘reliability’ (does application of the principle produce consistent results?)…..our reference here is to evidentiary reliability–that is, trustworthiness.” And see: Kumho Tire Company, Ltd. v Carmichael, 526 U. S. 137, 119 S.Ct. 1167, at 1176 – 1177 ( 1999): The court must determine both the validity of the expert’s qualifications and the reliability of the proposed testimony.
4 Kumho Tire Company, Ltd. v Carmichael, 526 U. S. 137; 119 S.Ct. 1167; (March, 1999) simply held: “Daubert…..applies to all expert testimony.”119 S.Ct. 1167 at 1174.
5 By “Behavioral Sciences” we mean all those applied disciplines who base their knowledge and practice on the science of human behavior, including mental, emotional, psycho-physiological and social processes. For the jurist, these will typically include: psychiatrists, psychologists, social workers, marriage and family therapists, substance abuse counselors, licensed professional counselors, and even pastoral counselors. There are some behavioral sciences professionals who identify themselves as “therapists” or “psychotherapists.” In our experience, behavioral science professionals who cannot legitimately identify themselves as psychiatrists or psychologists are more inclined to adopt the “therapist” label. These professionals often assume this designation to compensate for their lack of a doctoral degree.
6 Approximately 86% of civil trials contain expert testimony in some form.
Gross, S.R. & Syverud, K.D. (1991). Getting to no: A study of settlement negotiations and the selection of cases for trial. 90 Michigan Law Review 319. And see: Gross, S.R.(1991). “Expert Evidence”, 1991Wisconsin Law Review 1114, 1119 finding that experts testified in 80% of civil trials studied for the article. See, also: Imwinkelried, E.J. (1994). The Next Step After Daubert: Developing a Similarly Epistemological Approach to Ensuring the Reliability of Nonscientific Expert Testimony, 15 Cardozo Law Review 2271, 2273; and see McClellan, E. (1997). Comment, Sharpening the Focus on Daubert’s Distinction Between Scientific and Nonscientific Expert Testimony, 34 San Diego Law Review 1719, 1721 Asserting that the use of expert testimony has increased proportionately with the increase in technology in society.
7 See, e.g.: Kovera, M.B. and McAuliff, B.D. (2000). The Effects of Peer Review and Evidence Quality on Judge Evaluations of Psychological Science: Are Judges Effective Gatekeepers? 85 Journal of Applied Psychology 574-586. at pg 583: “…the scientific training judges receive is insufficient to help them recognize flawed psychological research….” And see: Lehman, D.R., Lempert, R.O. & Nisbett, R.E. (1988). The effects of graduate training on reasoning: Formal discipline and thinking about everyday life events, 43 American Psychologist 431-443: Judges are not seen to be more skilled in the evaluation of science than lay people. In fact, Lehman and colleagues demonstrated that legal education does not improve either methodological or statistical reasoning abilities. See, also: Gatowski, S. I.; Dobbin, S.A.; Richardson, J.T.; Ginsburg, G.P.; Merlino, M.L. & Dahir, V. (2001). Asking the Gatekeepers: A National Survey of Judges on Judging Expert Evidence in a Post –Daubert World. 24 Law and Human Behavior 433-458. This October, 2001 study with a survey frame of “…9,715 state trial court judges from all 50 states and the District of Columbia.” Concluded that: “…although judges surveyed reported that they found Daubert criteria useful for determining the admissibility of proffered expert evidence, the extent to which judges understand and can properly apply the criteria when assessing the validity and reliability of proffered scientific evidence was questionable at best.” pg. 452.
8 In Daubert, Chief Justice Rehnquist offered: “I do not doubt that Rule 702 confides to the judge some gatekeeping responsibility in deciding questions of the admissibility of proffered expert testimony. But I do not think it imposes on them either the obligation or the authority to become amateur scientists in order to perform that role.” 113 S Ct 2786 at 2799. emphasis added.
[9] In Daubert, the Court referred to Rule 706, which allows a trial judge to call an expert of the judge’s own choosing. 113 S.Ct. 2786 at 2797-98. And see: Memorandum and Order on Motion to Quash Notice of Subpoena in In re Joint E. & S. Dist. Asbestos Litig. (In re Johns-Manville Corp.), 151 F.R.D. 540 (E. & S.D.N.Y.1993); Cecil & Willing, Court Appointed Experts: Defining The Role of Experts Appointed Under Federal Rule of Evidence 706, at 88-95 (Fed.Jud.Ctr.1993). Further, as Judge Weinstein has pointed out, where the court-appointed expert does not testify at trial, the expert’s role can be characterized as that of “technical advisor” to the court, and depositions of such experts may not be required. See, e.g.: In re Joint E. & S. Dist. Asbestos Litig. (In re Johns-Manville Corp.), 151 F.R.D. 540 at 544-46; and see also Reilly v. United States, 863 F.2d 149, 157 (1st Cir.1988).
[10] See, e.g.: Lehman, D.R., Lempert, R.O. & Nisbett, R.E. (1988) The effects of graduate training on reasoning: Formal discipline and thinking about everyday life events, 43 American Psychologist 431-443. And see: Fong, G.T., Krantz, D.H. & Nisbett, R.E. (1986) The effects of statistical training on thinking about everyday problems, 18 Cognitive Psychology 253.
Fong, Krantz and Nisbett demonstrated that research subjects given brief training in methodological reasoning provided more scientifically sophisticated answers to a series of real-world problems.
11 Both Congress and the Judicial Conference of the United States have set general limits on the extent to which judges may acquire potentially prejudicial knowledge. See, e.g.: 28 U.S.C. 455 (1994). Section 455 establishes the bases upon which a federal judge, federal magistrate, or Justice of the Supreme Court may be disqualified from presiding over a case:
(a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding …. Id. Canon 3(C) of the Code of Conduct for United States Judges disqualifies judges on the same bases. See Office of the Gen. Counsel, Admin. Office of the U.S. Courts, Code of Conduct for United States Judges 7 (1997).
[12] See, e.g.: Gray, S.H. (1972). The Insanity Defense: Historical Development and Contemporary Relevance. 10 American Criminal Law Review 555.
[13] See, e.g.: Perlin, M. (1994). The jurisprudence of the insanity defense. Durham, NC, Carolina Academic Press; And see: See, e.g.: Paull, D. (1993). Fitness to stand trial. Springfield, IL, Charles C. Thomas Publishing Ltd.
[14] See, e.g.: U.S. v Mendenhall, 446 U.S. 544 (1980).
[15] See, e.g.: Lindsay &Read (1994). Incest Resolution Psychotherapy and Memories of Childhood Sexual Abuse: A Cognitive Perspective, 8 Applied Cognitive Psychology 281-292. And see: Lorandos, D. and Campbell, T. (1995) Myths and Realities of Sexual Abuse Evaluation and Diagnosis: A Call for Judicial Guidelines.7 Issues in Child Abuse Accusations 1.
[16] State v Foret, 628 So2d 1116, 1127 (1993) the child sexual abuse accommodation syndrome – inadmissible.
[17] Melton, G.B., Petrila, J., Poythress, N.G. and Slobogin, C. (1997) (2nd ed.) Psychological Evaluations for the Courts. New York – Guilford Press. These authors describe well over forty situations in which courts routinely ask psychologists for evaluations:
- Criminal Matters – A. Competency – 1.Competency to stand trial – 2.Competency to consent to a search or seizure – 3.Competency to confess – 4.Competency to plead guilty – 5.Competency to waive right to counsel – 6.Competency to refuse an insanity defense – 7.Competency to testify – 8.Competency to be sentenced – 9.Competency to be executed – B. Mental State at Time of Offense – 1.Insanity defense – 2.Automatism defense – 3.Mens Rea (Diminished capacity) – 4.Self-defense, provocation, duress, and entrapment – 5.Defenses based on intoxication – 6.The “guilty by mentally ill plea” – C. Sentencing 1.Repeat offender statutes – 2.Sexual offender statutes – 3.Youthful offenders – 4.Drug dependent offenders – 5.Capital sentencing – II. Civil Matters – A. Civil Commitment – 1.Mental disorder – 2.Capacity to make treatment decisions – 3.Danger to others – 4.Danger to self – 5.Grave disability / inability to care for self – 6.Need for treatment – 7.Least restrictive alternative – 8.Outpatient commitment – B. Civil Competencies – 1.Guardianship – 2.Testamentary capacity – C. Compensating Mental Injuries: Workers’ Compensation and Torts – 1.Worker’s Compensation law – 2.The tort of emotional distress – D. Federal Anti-discrimination and Entitlement Laws – 1.Americans with Disabilities Act – 2.Fair Housing Amendments Act – 3.Social Security Laws – III. Children and Families – A. Juvenile Delinquency – 1.Competency – 2.Amenability to treatment – B. Child Abuse and Neglect – 1.Legal definitions of child maltreatment (physical abuse, physical neglect, sexual abuse, emotional abuse and neglect.) – 2.Termination of parental rights – C. Child Custody and Divorce – 1.Best-interests standard – 2.Least detrimental alternative -3.Primary-caretaker standard – 4.Joint custody (physical and/or legal).
[18] See, e.g.:Slobogin, – A Jurisprudence of Dangerousness as a Criterion in the Criminal Process. In Sales, B.D. & Shuman, D. (Eds.) (1995). Law, Mental Health, and Mental Disorder, Pacific Grove, CA: Brooks/Cole Publishing.
[19] See : Zenoff, E.H. (1985) Controlling the Dangers of Dangerousness: The ABA Standards and Beyond, 53 George Washington Law Review 562 Stating that “[a]ssessments and predictions of dangerousness permeate every stage of the criminal justice, juvenile justice, and mental health systems.”
[20] See e.g.: Faden, R., Beauchamp,T. & King,N. (1986) A History and Theory of Informed Consent, New York: Oxford University Press.
[21] Spaulding, (1985) Testamentary Competency: Reconciling Doctrine with the Role of the Expert, 9 Law and Human Behavior 113.
[22] See e.g., People v. Nelson, 4 10 N.E.2d 476 (III.App. 1980).
[23] See e.g.: Lipton, (1988) A New Look at the Use of Social Science Evidence in Trademark Litigation, 78 Trademark Reporter 32.
[24] See e.g., Ballew v. Georgia, 435 U.S. 223 (1978).
[25] See e.g., U.S. ex rel. Free v. Mginnis, Peters and Burns, 818 F.Supp. 1098 (1992).
[26] See e.g., Johnson v. Louisiana, 406 U.S. 356 (1972).
[27] Most famous of the studies in this realm are the “Baldus data” used by civil rights groups in an effort to show that states apply the death penalty in a racially discriminatory fashion. Baldus, Woodruff and Pulaski (1990) Equal Justice and the Death Penalty Boston: Northeastern University Press.
[28] Compare: Ewing, C.P. (1990) Psychological Self-Defense: A Proposed Justification for Battered Women Who Kill, 14 Law & Human Behavior 579 with: Morse, S.J. (1990) The Misbegotten Marriage of Soft Psychology and Bad Low: Psychological Self-Defense as Justification for Homicide, 14 Law & Human Behavior 595. And see: Etlinger, L. (1995) Social Science Research in Domestic Violence Law: A Proposal to Focus on Evidentiary Use, 58 Albany Law Review 1259. Providing an in depth study of the use and reliability of social science expert testimony in domestic violence cases and stating that there are a number of problems with the use of social science research by courts including research and judicial bias, natural tension between science and the adversary system, inherent problems with social science methodology and limitations of existing evidence rules.
[29] Compare: Goodman, S.G. et al. (1991) Child Witnesses and the Confrontation Clause: The American Psychological Association’s Brief in Maryland v Craig, 15 Law& Hum. Behav. 13 and Goodman, S.G., et.al. (1992). The Best Evidence Produces the Best Law, 16 Law & Human Behavior 244; with: Underwager, R. & Wakefield, H. (1992). Poor Psychology Produces Poor Law, 16 Law & Human Behavior 233. See also Rustad, M. & Koeing, T. (1993) The Supreme Court and Junk Social Science: Selective Distortion in Amicus Briefs, 72 North Carolina Law Review 91, 128 Conducting a review of the way partisan organizations distort social science evidence in amici briefs submitted to the Supreme Court and concluding that “(j)unk social science is characterized by quotes from social scientific research taken out of context, misleading statistical presentations, denigration of studies whose results conflicted with the argument, and anecdotes masquerading as social science.”
[30] Compare: McCloskey, M.E. & Egeth, H.E. (1983) Eyewitness Identification: What Can a Psychologist Tell a Jury?, 38 American Psychologist 550; McCloskey, M.E. et al. (1986) The Experimental Psychologist in Court: The Ethics of Expert Testimony, 10 Law & Human Behavior 1; Elliott, R. (1993) Expert Testimony About Eyewitness Identification: A Critique, 17 Law & Human Behavior 423; with: Loftus, E.F. (1979) Eyewitness Testimony; Loftus, E.F. (1983) Silence Is Not Golden, 38 American Psychologist 564 ; Kipling D. and Williams, K.D. , et.al. (1992) Eyewitness Evidence and Testimony, in Handbook of Psychology and Law 141 ( Kagehiro & Laufer, eds., 1992) Kassin,S.M. et al. (1994) Deja Vu All Over Again: Elliott’s Critique of Eyewitness Experts, 18 Law & Human Behavior 203. See also Bermant,G. (1986) Two Conjectures About the Issue of Expert Testimony, 10 Law & Human Behavior 97. And Kassin, S.M. et al. (1989) The “General Acceptance” of Psychological Research on Eyewitness Testimony: A Survey of the Experts, 44 American Psychologist 1089.
[31] See, e.g.: Loftus, E.F. (1986). Ten years in the Life of an Expert Witness, 10 Law and Human Behavior 241.
[32] Id at 294; 660 P.2d at 1220-21. See also: State v McCutcheon, 162 Ariz. 54, 56-58; 781 P.2d 31, 33-35 (1985) (discussing Chapple); State v Poland, 144 Ariz. 388; 388-89; 698 P.2d 183, 193-94 (1985).
[33] See, e.g.: Rimer, S. (2000) “Life after Death Row” The New York Times Magazine December 10th, 2000 pg 100; Ripley, A. “After Exoneration” Time Magazine December 11th, 2000, pg 96; Reza, H.G. (2001) “In the DNA” California Lawyer April, 2001 pg 16.
[34] Connors, Lundregan, Miller & McEwen. (1996) Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial, Washington, D.C. National Institute of Justice.
[35] See also: Wolfson. “That’s the man!” Well, Maybe Not: The Case for Eyewitness Identification Testimony.” 26 Litigation 5 (Winter 2000). See, also: Gawande, A. (2001) “Under Suspicion” The New Yorker January 8th, 2001 pg 50. Reporting on research which has found eyewitness identification errors as high as 80%. And see: Smith, S.M, Lindsay, R.C.L. and Pryke, S. (2000) Postdiction of Eyewitness Errors: Can False Identifications Be Diagnosed? 85 Journal of Applied Psychology 542.
[36] In Smithers, the Court noted that one study estimated that half of all wrongful convictions result from false identifications. Id. at 312 note 1 (citing Loftus. (1986) Ten years in the Life of an Expert Witness, 10 Law and Human Behavior 241. It is noteworthy that the court cited old data. More recent studies, supported by DNA evidence demonstrate that the rate of wrongful conviction based upon faulty eyewitness identification is staggering.