Bhakta David Nollmeyer
The admissibility of expert testimony and evidence since 1993 has been under the jurisdiction of the Federal Rules of Evidence 401, 402, 701, and 702. In Daubert v. Merell Dow Chemicals 509 U.S. 579 (1993), the Supreme Court agreed with respondent Merell Dow that an expert opinion based on a scientific technique was inadmissible unless such was accepted as reliable to the scientific community. The Court held that any methodology that significantly deviated from processes accepted by recognized authorities could not be established as a reliable technique (Keily 2006).
In Frye v. United States 54 App. D. C. 46, 293 F. 1013 No. 3968, upheld yielding to expertise when the issue concerns theory or facts that lie outside the domain of a layperson. Here the rules would permit a qualified expert to be admitted to testify. Chief Justice Van Ordsel argued from the defendants brief citing (Frye v. United States 1923):
"...When the question involved does not lie within the range of common experience or common knowledge, but requiresspecial experience or special knowledge, then the opinions of witnesses skilled in that particular science, art, or trade to which thequestion relates are admissible in evidence."
The Frye Standard is the general acceptance rule which is basically a stricter bar of those theories and methodologies that are adhered to by the pertinent scientific community and peer reviewed.
In Daubert Judge Blackmun agreed with Merell Dow that the general acceptance standard of Frye should be held under the provisions of Federal Rule of Evidence 702. Under these provisions the Daubert Factors emerged which govern the admissibility of scientific expert opinion (Mahle 1999):
1. Is the hypothesis or methodology falsifiable or third party verifiable?
2. Has the theory or method undergone peer review and publication?
3. Is there a known or potential error rate?
4. Has the theory and methodology been accepted by the pertinent scientific community?
The Daubert Trilogy refers to the three cases that helped to form the Federal Rules of Evidence especially 702.
Daubert v. Merrell Dow Pharmaceuticals
General Electric Co. v. Joiner
Kumho Tire Co. v. Carmichael
Daubert is important in developing the use of a more liberal standard of admissibility of evidence generated by science to an admitted to a trier of fact in criminal and civil cases whether it be a judge or jury. The Daubert case developed an emerging challenge to traditional legal perceptions of science and particularly the role of expert testimony in the courtroom. The case would address these issues and develop practical rules for both inculpatory and exculpatory testimony and evidence. The need was from both the scientific and legal communities to develop an admissibility standard of which the Supreme Court would permit expert technical testimony and evidence while excluding charlatans from influencing a jury as experts (Orofino 1996).
The Supreme Court held: The Federal Rules of Evidence, not Frye, provide the standard for admitting expert scientific testimony in a federal trial. Pp. 585-597 (Daubert v. Merell Dow 1993). Judge Blackmun here defines the gatekeeper role of the court and particularly the trial judge as gatekeeper. Under Rule 702 the judge must discern whether the testimony's underlying methodology is scientific and can be applied correctly to the issues in the instant case. This is a flexible judgment with considerations that are formulated on what are the four Daubert Factors supra. The inquiry must be based on theory and methodology and not the conclusions generated (Daubert v. Merell Dow 1993).
In General Electric v. Joiner, the issue was whether the District Court in the instant case had abused it's discretion in not permitting Joiner's expert testimony to be admitted. This was predicated by Daubert Factors and the case was granted certiorari to clarify what standard an appellate court should use in reviewing a lower court's decision. The Court held that discretion was the appropriate standard.
The District Court stated that there there was an issue of fact as to whether Joiner had been exposed to chemicals as PCBs. The instant court granted a summary judgment to General Electric because 1. there was no direct proof of whether Joiner had been exposed to furnans and dioxins. 2. Joiner's experts did not sustain that there was a link to PCBs and small cell cancer. The Court argued that the expert testimony as "subjective belief or unsupported speculation." 864F. Supp. 1310, 1329 (ND Ga. 1994). It ruled the testimony as inadmissible (General Electric v. Joiner 1997).
In Kumho Tire the Supreme Court held: The Daubert Factors may apply to the testimony of engineers and other experts who are not scientists. Pp. 1174-1176. Here the Court under Justice Breyer elaborated on what many consider the most important part of the Daubert Trilogy. Breyer stated that 1. The gatekeeping obligation required inquiry into relevance and reliability. This went beyond scientific testimony to all relevant expert testimony. 2. An assessment of a engineer's reliability may consider Daubert factors an extent relevant. 3. The trial court was correct in excluding the analyst of expert testimony on a particular tire (Kumho Tire 1998).
The Court and especially the judge in the instant case must exercise discretion in the nexus between scientific methods, validity and peer review to points of law that a judge must use in the domain of a trial (Orofino 1996). Hence when does a class of characteristics of hair or fiber stated as similar or dissimilar to the individual exemplar from a particular individual become relevant for a trial court? What is the probative value when a party's expert testifies that this example could have origin from a suspect but is excluded from a set of other sample parties. Hence the weight a fortiori of these conclusions are not closed but open texture in the circumstantial domain (Keily 2006).
The Daubert case clearly did not replace Frye, as seen from the Daubert Trilogy and Daubert Factors, the Supreme Court has clearly given the judge in the instant case the judicial discretion to hold inquiry over the admissibility of expert witness and testimony. In General Electric v. Joiner, Rehnquist stated under this standard the Federal Rules of Evidence permits a degree of scientific testimony greater than Frye, it does not eliminate the discretionary role of gatekeeper in reviewing this evidence for admission (General Electric v. Joiner 1997).
In General Electric v. Joiner, Joiner's expert did not refute the attack on the relationship between PCBs, animal epidemiology and the linkage to humans. Hence the Court has no reason to admit evidence solely on one expert's view. Hence this is a confirmation of peer review and general acceptance. The Court also stated that the expert did not explain in terms that a court could comprehend how these studies link to the conclusions that were drawn (Roisman)
Forensic evidence consists of two factors, the science and methodology applied and the facts or evidence that may come to be interpreted from these two distinct structures as conclusions. Hence forensic evidence constitutes a body of material that may be as stated inculpatory or exculpatory. Such is also in the domain of circumstantial evidence as it does not prove a direct fact as an eyewitness testifying against a suspect at trial for shooting a victim (Keily 2006).
Hence a party in litigation may request a Daubert Motion, in limine, to establish the admissibility of the expert and his conclusions. As seen the Court is usually liberal in admitting facts to trial especially for defendants, the issue of novel and emergent science and their value to a trier of fact has become contentious in a litigatious zeitgeist (Keily 2006).
The implementation of the Daubert Factors under Federal Rule Of Evidence 702 increases the power and discretion of the court, mainly the judge in shepherding issues to the final verdict of the trier of fact. Hence under Frye general acceptability under the pertinent scientific community as peer review was deferred to. Under Daubert the issue at hand proceeds more from a demonstrable science under laws and general principles to a conclusion to a craft that is particularized to a detail. Hence law is a craft and the conclusions generated by a particular forensic science that is sound must be then corresponded to the issue in the instant case. The probability inferences that occur under per se microscopy have very few statistical bases and the matching is more towards excluding dissimilar examples towards a strong possibility that the example is from one individual (Keily 2006). Since the judge is making the admissibility determination over the base of that science and method and also whether the conclusions are directly supported by that method the Daubert Factors strengthen the court and judge. This is also apparent in the review of appellative courts over the discretion of appeals from instant courts. The Daubert decision clearly enhances the federal court and appellative system while permitting states to preserve the Frye Standard if they wish.
Daubert v. Merell Dow Chemicals 509 U.S. 579 (1993). United States Supreme Court. Retrieved October 27, 2011: http://www.law.cornell.edu/supct/html/92-102.ZO.html
Frye v. United States 54 App. D. C. 46, 293 F. 1013 No. 3968. (1923). United States Court of Customs Appeals. Retrieved October 27, 2011: http://euro.ecom.cmu.edu/program/law/08-732/Evidence/FryeVUS.pdf
General Electric Company, ET AL., Petioners v. Robert K. Joiner (1997). Retrieved October 27, 2011: http://www.law.cornell.edu/supct/html/96-188.ZO.html
Keily, T.F. (2006). Forensic Evidence: Science and the Criminal Law. Boca Raton FL. USA. Taylor and Francis Group.
Kumho Tire Co. v. Carmichael 526 U.S. 137, 119 S.Ct. 1167 (1998). Supreme Court. Retrieved October 27, 2011: http://atlanticlegal.org/php/uploads/4080.pdf
Mahle, S. (1999). The Impact of Daubert v. Merrell Dow pharmaceuticals, Inc., on Expert Testimony: With applications to Securities Litigation. Retrieved October 27, 2011: http://www.daubertexpert.com/basics_daubert-v-merrell-dow.html
Orofino, S. (1996). Daubert v. Merrell Dow Pharmaceuticals, Inc.: The Battle Over Admissibility Standards for Scientific Evidence in Court. J. Undergrad. Sci. 3: 109-111 (Summer 1996).
Roisman, A. The Implications of G.E. v. Joiner for Admissibility of Expert Testimony. Vermont Journal of Environmental Law Volume 1 1998-1999. Retrieved October 27, 2011: http://www.vjel.org/journal/VJEL10001.html