French for “to speak the truth,” voir dire is simply a process of preliminary courtroom questioning—be it of citizens to determine if they should and will sit on the jury or witnesses to see if they are competent to testify. Distinct from examinations conducted during a case-in-chief, which gets to the substance of the parties’ dispute, voir dire peers into whether people should be allowed to participate—either to give facts or determine them.
In family law cases, voir dire comes into play when the court must decide to admit or deny expert testimony. Particularly in high-conflict cases, determining issues related to custody, mental health, substance abuse, parental alienation (PA), and patterns of controlling behavior can all be greatly aided by the testimony of a qualified psychological expert. Voir dire is used to determine if this proposed expert testimony is supported by reliable research and methodology and based upon the facts of the case.
We at PsychLaw.net believe that it is critical that an unqualified or unreliable witness is identified before the purported expert is allowed to taint the proceedings.[1] This is because 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.”[2]
Unfortunately, because many attorneys and judges are not sufficiently up to speed on psychological standards, sometimes unreliable testimony is accepted and used to create misinformation regarding PA. This type of testimony has been presented innumerable times in courtrooms across North America to paint innocent parents as monsters and monstrously manipulative parents as saints. Hence, the importance of voir dire. When promptly and properly done, voir dire will reveal any lack of qualifications or reliability, and (hopefully) lead to the expert’s exclusion.[3]
Whether it is referred to as voir dire, a Daubert[4] hearing, or something else, every jurisdiction across North America offers some type of process for evaluating the credibility of a proposed expert, as well as the reliability of their proposed testimony. To explicate voir dire, the author will use the American federal rules. This will allow the reader to focus on the similarities across states and substitute local rules and case law where appropriate.
What is now known as a Daubert hearing grew out of jurisprudence around Federal Rule of Evidence (FRE) 104(a)[5] that addresses preliminary questions for the court regarding witness qualification and the admissibility of evidence. Daubert identified that, to provide testimony, an expert must have: (1) an opinion that will be helpful to the fact finder in making its determination; (2) a working knowledge of the data of the discipline; and (3) a reliable basis in the knowledge and experience of the subject matter.[6]
Perhaps the most frequently overlooked aspect of an expert’s proposed testimony is an examination of their research and methodology. Unfortunately, litigators and judges alike all too often stop their inquiry with an expert’s education and experience—particularly with scientific expertise. This is because of a “general lack of scientific literacy among … lawyers and judges,”[7] and “[b]ecoming scientifically literate should prove to be a continuing challenge to the law.”[8]
Nonetheless, the proffered expert should be challenged to show that their theory, technique, or concept is supported by objective, empirical data[9] before those data are admitted into evidence.[10] In addition to being grounded in an accepted body of learning or experience, the expert must also explain how the particular conclusion is so grounded in the facts of the case.[11]
Therefore, when scientific expert testimony is offered, the court must determine if it is based on:
(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 can be applied to the facts in issue.[12]
The Daubert trilogy suggests engaging in a three-stage inquiry to see if the proposed testimony “fits” the evidentiary needs of the court in making its decision: (1) Does the proposed expert possess the kind of background and experience to fit the facts in controversy? (2) Does the proffered opinion provide a reliable application to the facts of the case? and (3) Does the expert employ a valid and reliable method in forming their opinion?[13]
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[1] One of the real problems with waiting until trial is illustrated in these holdings: U.S. v. L.E. Cooke Co., Inc., 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). 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).
[2] John William Strong, Language and Logic in Expert Testimony: Limiting Expert Testimony by Restrictions of Function, Reliability, and Form, 71 L. Rev. 349, 367 n. 81 (1992). See, also Neil Vidmar & Regina A. Schuller, Juries and Expert Evidence: Social Framework Testimony, 52 Law & Contemp. Probs., Autumn 1989, at 166. Also see e.g., Commonwealth v. Garcia, 588 A.2d 951 (Pa. 1991), overruled on other grounds by Commonwealth v. Johnson, 690 A.2d 274 (Pa. 1997), overruling on other grounds recognized by Commonwealth v. Minerd, 753 A.2d 225, 232 (Pa. 2000) (instructing that ‘‘[j]urors 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.”)
[3] Of course, this assumes that the judge understands his jurisdiction’s rules of evidence, which, unfortunately, is not always the case. See e.g. D.T. v. N.O., No. DR 13 (Gunnison County, CO Dist. Ct. 2014) and description of a “data of the discipline” voir dire, infra in this chapter in the subsection “A Three-Step Process to Voir Dire a Proffered Expert in Proceedings Involving Parental Alienation.”
[4] Invoking the pre-eminent American authority in this area, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
[5] Fed. R. Evid. 104(a).
[6] Daubert, 509 U.S. at 589-92.
[7] See, e.g., John Thibaut & Laurens Walker, A Theory of Procedure, 66 Calif. L. Rev. 541 (1978) [hereinafter Thibaut (1978)] See also E. Allan Lind & Tom R. Tyler, The Social Psychology of Procedural Justice (1988). John Thibaut & Laurens Walker, Procedural Justice: A. Psychological Analysis (1975) [hereinafter Thibaut (1975)].
[8] David Faigman et al., 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 (1994). Demosthenes Lorandos, Expert Evidence Post-Daubert: The Good, the Bad, and the Ugly, 43 Litigation, Mar. 2017, 7 (2017).
[9] Glaser v. Thompson Med. Co., 32 F.3d 969, 974-975 (6th Cir. 1994).
[10] See, e.g., Thibaut (1978), supra note 7; Lind et al., supra note 7; Thibaut (1975), supra note 7.
[11] See, e.g., American College of Trial Lawyers, Standards and Procedures for Determining the Admissibility of Expert Testimony after Daubert, 157 F.R.D. 571, 579 (1994) (“Whether the testimony concerns economic principles, accounting standards, property valuation or other non-scientific subjects, it should be evaluated by reference to the ‘knowledge and experience’ of that particular field.”).
[12] Daubert., 509 U.S. at 592-93.
[13] See, e.g., Terence W. Campbell & Demosthenes Lorandos, 1 Cross Examining Experts in the Behavioral Sciences §§ 1:12, 1:28 (2001 & Supp. 2019). And see Schmaltz v. Norfolk & Western Ry. Co., 878 F. Supp. 1119,1121 (N.D. Ill. 1995) (where the court noted that the suggested scientific testimony must ‘‘fit’’ the issue about which the expert is testifying); In re Paoli R.R. Yard PCB Litigation, 35 F.3d 717, 742 (3d Cir. 1994) (noting admissibility depends in part on the proffered connection between the scientific research or test result to be presented and particular disputed factual issues in the case, i.e. the ‘‘fit’’ requirement), cert. denied, 513 U.S. 1190 (1995).