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Presentations from the 2nd International Symposium on the Forensic Examination of Questioned Documents (Part 2; Forensic Science Communications, October 1999)

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October 1999   Volume 1   Number 3

Presentations at the
2nd International Symposium on the
Forensic Examination of Questioned Documents
Albany, New York
June 14 – 18, 1999

Part 2

The following abstracts of the presentations are ordered alphabetically by authors' last names.

Post-Daubert Considerations in Document Examinations
(Please note that the second half of this article is in Part 3)
P. C. Giannelli, A. J. Weatherhead, and R. W. Weatherhead
Case Western Reserve University
Cleveland, Ohio

1.  Reliability of Scientific Evidence

a.  Validity of the underlying theory.

b.  Validity of the technique applying theory. Validity of theory and technique are distinct issues. Acceptance of the validity of the premise underlying "voiceprint" identification (voice uniqueness) does not answer the question whether the voiceprint technique can identify that uniqueness.

c.  Proper application of technique on a particular occasion: (see Frye-Daubert "Plus" infra)

i.  Condition of any instrumentation used.

ii.  Adherence to proper procedures.

iii.  Qualifications of both the person conducting the procedure and the person interpreting the results.

1 Giannelli and Imwinkelried, Scientific Evidence § 1-8 (2d ed. 1993) (courts divided over whether the proponent must establish these factors as a condition of admissibility).

d. Radar evidence example:

i.  Validity of the underlying theory (e.g., the Doppler effect);

ii.  Validity of the technique applying that theory (e.g., moving versus stationary radar and the particular model of radar); and

iii.  Proper application of the technique on a particular occasion (e.g., use of tuning forks to calibrate).

Copyright 1999, Paul C. Giannelli. Please do not quote without permission.

2.  Methods of Proof: Validity of Theory and Technique

a.  Judicial Notice

i.  Fed. R. Evid. 201. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 592 n. 11 (1993) ("[T]heories that are so firmly established as to have attained the status of scientific law, such as the laws of thermodynamics, properly are subject to judicial notice under Fed. Rule Evid. 201.").

ii.  DNA. Some aspects of DNA are subject to judicial notice. National Academy of Sciences, DNA Technology in Forensic Science 149 (1992).

b.  Statutory Recognition

i.  E.g., radar, intoxication, and blood tests are often subject to legislative regulation.

ii.  Recent statutes. More controversial techniques—e.g. polygraph, hypnosis, DNA, rape trauma syndrome, and battered wife syndrome.

iii.  Constitutional issue. State v. Vega, 465 N.E.2d 1303 (Ohio 1984): Once intoxilyzer legislatively recognized, an accused "may not make a general attack upon the reliability and validity of the breath testing instrument." But see Crane v. Kentucky, 476 U.S. 683, 690 (1986)("[T]he Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.'" ).

iv.  Fed. R. Evid. 104(e): Admissibility decision does not limit the "right of a party to introduce before the jury evidence relevant to weight or credibility."

c.  Stipulation: "[T]he primary effect of the stipulation is that it operates as a waiver of objection ... to the validity of the basic theory of polygraph testing and eliminates the necessity of ... the parties to establish a foundation in each case to satisfy the trial court of the basic theory and validity of polygraphs." State v. Dean, 307 N.W.2d 628, 637 (Wis. 1981).

d.  Evidence — Four evidentiary tests:

i.  Frye "general acceptance" test.

ii.  McCormick's relevancy approach.

iii.  Daubert reliability approach.

iv.  Frye-Daubert "Plus" approach.

3. Daubert in the States

a.  Daubert not applicable to states. 509 U.S. at 587 ("We interpret the legislatively enacted Federal Rules of Evidence as we would any statute.").

b.  State v. Dean, 523 N.W.2d 681, 692 (Neb. 1994), cert. denied, 515 U.S. 1123 (1994): "[N]otwithstanding that our rule 702 parallels the federal rule 702, Daubert does not apply to state court decisions. The increasing prevalence of expert evidence cautions against the admission of scientific evidence which is still the subject of dispute and controversy in the relevant scientific communities. ... We thus adhere to the Frye standard. ..."

c.  State v. Bible, 858 P.2d 1152, 1183 (Ariz. 1993), cert. denied, 511 U.S. 1046 (1994): We are "not bound by the United States Supreme Court's non-constitutional construction of the Federal Rules of Evidence when we construe the Arizona Rules of Evidence." The Court went on to remark: "Our rules ... are court-enacted. While the United States Supreme Court considers congressional purpose, this court—when construing a rule we have adopted—must rely on text and our own intent in adopting or amending the rule in the first instance."

d.  Michigan Rule 702 ("recognized" scientific, technical, or other knowledge).

e.  Indiana Rule 702(b) ("[e]xpert scientific testimony is admissible only if the court is satisfied that the scientific principles upon which the expert testimony rests are reliable.").

f.  Ohio Rule 702(C): "To the extent that the testimony reports the result of a procedure, test, or experiment, the testimony is reliable only if all the following apply: (1) the theory upon which the procedure, test, or experiment is based is objectively verifiable or is validly derived from widely accepted knowledge, facts, or principles; (2) the design of the procedure, test, or experiment reliably implements the theory; and (3) the particular procedure, test, or experiment was conducted in a way that will yield an accurate result."

g.  Daubert and Frye jurisdictions. See Appendixes A, B, and C.

4.  Frye v. U.S., 293 F. 1013, 1014 (D.C. Cir. 1923): "Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and whereas the courts will go a long way in admitting expert testimony deduced from a well recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs."

a.  Rationale: "Where novel scientific evidence is at issue, the additional Frye inquiry allows the judiciary to defer to the scientists precisely where to do so recognizes both the need for admissibility of novel scientific evidence where it is sufficiently accepted, and the need to protect against novel scientific evidence which has not even gained general acceptance in the relevant field. The trial court's gatekeeper role under Frye involves by design a conservative approach, requiring careful assessment of the general acceptance of the theory and methodology of novel science, thus helping to ensure, among other things, that ‘pseudoscience' is kept out of the courtroom." State v. Copeland, 922 P.2d 1304, 1314 (Wash. 1996) (en banc).

b.  Criticism: "Perhaps the most important flaw in the Frye test is that by focusing attention on the general acceptance issue, the test obscures critical problems in the use of a particular technique." Giannelli, The Admissibility of Novel Scientific Evidence: Frye v. United States, a Half-Century Later, 80 Colum. L. Rev. 1197, 1226 (1980).

c.  Daubert Compared: "The State maintains that this court should abandon Frye and adopt Daubert. The State argues that Frye is difficult to apply. Although Frye may be difficult to apply in some contexts, this is a result of the complexity of the particular science at issue, the extent to which the scientific community has made its view known, and the extent of any dispute in the scientific community. The same, or similar problems, arise under Daubert, including questions of testability, the extent to which the scientific technique or method is accepted by the scientific community, and drawing the line between legitimate science and ‘junk' science, along with other questions. Questions of admissibility of complex, controversial scientific techniques or methods, like those involving DNA evidence, are going to be difficult under either standard." Copeland, supra, at 1314.

d.  Non-Novel Evidence: Jurisdictions that follow Frye sometimes do not apply the general acceptance test to all types of "scientific" evidence. People v. Marx, 126 Cal. Rpt. 350, 355-56 (1975), court avoided applying the Frye test to bitemark comparisons. According to the court, the Frye test "finds its rational basis in the degree to which the trier of fact must accept, on faith, scientific hypotheses not capable of proof or disproof in court and not even generally accepted outside the courtroom." The court went on to hold that bite mark evidence did not involve blind acceptance by the jury. The basis on which the expert reached his conclusions—models, photographs, and X-rays—were shown to the trier of fact, and the expert's conclusions were verifiable by the court. Thus, the "court did not have to sacrifice its independence and common sense in evaluating" the evidence.

Arizona Supreme Court has ruled that the "Frye analysis is not applicable to footprints." State v. Murray, 184 Ariz. 9, 906 P.2d 542, 562 (1995) (en banc), cert. denied, 518 U.S. 1010, 519 U.S. 874 (1996); People v. Sommer, 12 Cal. App. 4th 1642 (1993) (narcotic detection dog not subject to Frye test).

e.  Two-step Application: The general acceptance test requires a two-step analysis: (1) identifying the field in which the underlying principle falls, and (2) determining whether that principle has been generally accepted by members of the identified field. Because neither step is free of difficulties, commentators have called the Frye test "remarkably vague," "undefinable," and "not enlightening."

People v. King, 266 Cal. App. 2d 437, 456, 72 Cal. Rpt. 478, 490 (1968) (voiceprints) ("Communication by speech does not fall within any one established category of science. Its understanding requires a knowledge of anatomy, physiology, physics, psychology and linguistics.").

f.  Multiple-Step Techniques: Brim v. State, 695 So.2d 268, 270 (Fla. 1997) ("It is clear that the DNA testing process consists of two distinct steps and that both steps must satisfy the requirements of Frye.").

g.  Burden of Proof: The offering party has the burden of establishing general acceptance, which "can be an elusive premise to prove." Windmere, Inc. v. International Ins. Co., 105 N.J. 373, 379, 522 A.2d 405, 408 (1987) (voiceprints).

h.  Methods of Proof: (1) scientific-legal publications; (2) judicial opinions, and (3) expert testimony.

i.  Scientific-Legal Publications. Courts have relied upon scientific and legal publications when ascertaining the general acceptance of novel scientific techniques. E.g., United States v. Stifel, 433 F.2d 431, 441 (6th Cir. 1970), cert. denied, 401 U.S. 994 (1971). This represents a type of judicial notice. Courts using these publications are not judicially noticing the validity of the technique. Instead, they are taking judicial notice of various publications, both legal and scientific, in determining whether general acceptance has been achieved.

j.  Judicial Decisions. Judicially noticing the testimony of experts that is reported in published opinions seems appropriate. Commonwealth v. Topa, 471 Pa. 223, 230 n.2, 369 A.2d 1277, 1281 n.2 (1977) (citing expert's testimony in Worley v. State, 263 So. 2d 613 (Fla. App. 1972)). It is the equivalent of judicially noticing expert opinions in scientific journals. Some cases, however, go beyond this practice; they seem to adopt an approach to the Frye test that emphasizes previous court decisions, considering general acceptance not only by scientists but also by courts.

k.  Corroboration Requirement: Several courts have imposed additional requirements. Some have required corroboration of expert testimony with regard to a novel technique's general acceptance. In rejecting voiceprint evidence, the California Supreme Court questioned "whether the testimony of a single witness alone is ever sufficient to represent, or attest to, the views of an entire scientific community regarding the reliability of a new technique." People v. Kelly, 17 Cal. 3d 24, 37, 549 P.2d 1240 (1976). Similarly, the Pennsylvania Supreme Court held that the "testimony of one expert ... cannot satisfy [the Frye] standard." Commonwealth v. Topa, 471 Pa. 223, 232, 369 A.2d 1277, 1282 (1977).

l.  Neutrality Requirement: Several courts have required that testimony of general acceptance be given by "impartial experts." See State ex rel. Collins v. Superior Court, 132 Ariz. 180, 199, 644 P.2d 1266, 1285 (1982); People v. Kelly, 17 Cal. 3d 24, 38, 549 P.2d 1240, 1249, 130 Cal. Rptr. 144, 153 (1976) (questioning whether the leading proponent of voiceprints could "fairly and impartially ... assess the position of the scientific community"). For example, the Michigan Supreme Court rejected voiceprint evidence because "the reputations and careers" of the experts who testified about the general acceptance of the technique were "built on their voiceprint work," and therefore they were not "disinterested and impartial." People v. Tobey, 401 Mich. 141, 146, 257 N.W.2d 537, 539 (1977).

m.  Scope of Appellate Review

i.  Some courts view the "determination of ‘general acceptance' is primarily a question of fact for the trial court subject to an appellate court's determination that the trial court has not abused its discretion." People v. Marx, 126 Cal. Rptr. 350, 355 (Cal. App. 1975).

ii.  In contrast, other courts view the issue as a question of law, subject to de novo review on appeal. See People v. Ashmus, 820 P.2d 214, 234 (Cal. 1992) ("On appeal, a Kelly-Frye ruling is reviewed independently."); People v. Law, 114 Cal. Rptr. 708, 711 (1974) ("Unquestionably, the trial court enjoys great latitude in determining the qualification of an expert. ... While there have been some statements that the same amount of discretion rests in the trial court to determine whether a new scientific test or process has passed from the experimental into the demonstrable stage and has received general acceptance by recognized experts in the scientific field in which it belongs, ... there is a view that the latter issue is one of law ...").

5.  Relevancy Test (Qualifying expert qualifies technique)

a. C. McCormick, Evidence 363-64 (1954): "'General scientific acceptance' is a proper condition upon the court's taking judicial notice of scientific facts, but not a criterion for the admissibility of scientific evidence. Any relevant conclusions which are supported by a qualified expert witness should be received unless there are other reasons for exclusion. Particularly, its probative value may be overborne by the familiar dangers of prejudicing or misleading the jury, unfair surprise and undue consumption of time." See FRE 403.

b. Criticism: "The major flaw in the relevancy analysis ... is its failure to recognize the distinctive problems of scientific evidence. ... [T]he judge frequently is forced to defer to an expert, thereby permitting admissibility based on the views of a single individual in some cases." Giannelli, supra, at 1250.

c.  Daubert implicitly rejects this approach. "[U]nder the Rules the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." 509 U.S. at 589. Kumho Tires Co. v. Carmichael, 119 S. Ct. 1167 (1999)(rejects; expert qualified).

d.  State v. Peters, 534 N.W.2d 867, 873 ( Wis. App. 1995), review denied, 537 N.W.2d 572 (Wis. 1995) (DNA admissible) (Wisconsin follows neither Frye nor Daubert: "Once the relevancy of the evidence is established and the witness is qualified as an expert, the reliability of the evidence is a weight and credibility issue for the fact finder and any reliability challenges must be made through cross-examination or by other means of impeachment.").

e. State v. Donner, 531 N.W.2d 369, 374 (Wis. App. 1995) (intoxication case), review denied, 534 N.W.2d 86 (Wis. 1995):

"[B]efore Daubert, the Frye test was not the law in Wisconsin. To that extent, Wisconsin law and Daubert coincide. Beyond that, Wisconsin law holds that "any relevant conclusions which are supported by a qualified witness should be received unless there are other reasons for exclusion. Stated otherwise, expert testimony is admissible in Wisconsin if relevant and will be excluded only if the testimony is superfluous or a waste of time. ...

Assuming that Daubert in its application represents something beyond Walstad, we observe that we ... are bound to follow our supreme court case law."

Daubert: The Reliability Approach

f. Fed. R. Evid. 702: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise."

g. Scientific Method: "[I]n 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. In short, the requirement that an expert's testimony pertain to ‘scientific knowledge' establishes a standard of evidentiary reliability." Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 590 (1992).

h. Fed. R. Evid. 104(a): Trial court determines admissibility, a task that "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. at 592-93.

i. Adversary System: "Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." Id. at 596, citing Rock v. Arkansas, 483 U.S. 44, 61 (1987).

6.  Burden of Proof: Daubert, 509 U.S. at 592 n. 10 ("These matters should be established by a preponderance of proof."); Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1316 (9th Cir.) ("[T]he party presenting the expert must show that the expert's findings are based on sound science .... "), cert. denied, 516 U.S. 869 (1995).

7.  Novel Evidence: Daubert, 509 U.S. at 592 n. 11 ("Although the Frye decision itself focused exclusively on ‘novel' scientific techniques, we do not read the requirements of Rule 702 to apply specially or exclusively to unconventional evidence.").

8.  Appellate Review

a.  General Electric Co. v. Joiner, 522 U.S. 136 (1997) (adopts an abuse-of-discretion standard for reviewing a trial court's admissibility decision under Daubert).

b.  Trial court excluded the plaintiff's expert testimony, i.e., applying a rather demanding admissibility standard. "We hold, therefore, that abuse of discretion is the proper standard by which to review a district court's decision to admit or exclude scientific evidence. We further hold that, because it was within the District court's discretion to conclude that the studies upon which the experts relied were not sufficient, whether individually or in combination, to support their conclusion that Joiner's exposure to PCBs contributed to his cancer, the District Court did not abuse its discretion in excluding their testimony." Id. at 146-47.

9.  Methodology Versus Conclusion

a.  Daubert Court had written that the "focus, or course, must be solely on principles and methodology, not on the conclusions that they generate." Daubert, 509 U.S. at 595.

b.  General Electric Co. v. Joiner. Plaintiff argued that the district court had erred because it had disagreed with the conclusions (not the methods) that the experts had drawn from the scientific studies. Court responded: "conclusions and methodology are not entirely distinct from one another. Trained experts commonly extrapolate from existing data. But nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence which is connected to existing data only by the ipse dixit of the expert. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered." Id. at 519.

c.  Here, again, the district court had not applied a lax standard; it had scrutinized the underlying scientific basis (i.e., animal and epidemiological studies) of the experts' opinions. The Supreme Court noted that the animal studies were "so dissimilar" to the facts presented in this litigation and the epidemiological studies "were not a sufficient basis for the experts' opinions." Id at 518.

d.  Kumho Tire demonstrates why this distinction is unworkable. More than visual and tactile examination on blown out tire involved; expert used these methods in a particular way.

10. Daubert more Liberal than Frye

a.  Daubert, 509 U.S. at 589: "Given the Rules' permissive backdrop and their inclusion of a specific rule on expert testimony that does not mention ‘general acceptance,' the assertion that the Rules somehow assimilated Frye is unconvincing. Frye made ‘general acceptance' the exclusive test for admitting expert scientific testimony. That austere standard, absent from, and incompatible with, the Federal Rules of Evidence, should not be applied in federal trials."

b.  Daubert, 509 U.S. at 590: "[I]n 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. In short, the requirement that an expert's testimony pertain to ‘scientific knowledge' establishes a standard of evidentiary reliability."

c.  United States v. Bonds, 12 F.3d 540, 568 (6th Cir. 1993) (DNA) ("We find that the DNA testimony easily meets the more liberal test set out by the Supreme Court in Daubert.").

d.  United States v. Kwong, 69 F.3d 663, 668 (2d Cir. 1995) (polygraph) ("The Federal Rules of Evidence, although concededly more liberal than the Frye test, still require a determination that the proffered scientific evidence is both relevant and reliable."), cert. denied, 517 U.S. 1115 (1995).

e.  Borawick v. Shay, 68 F.3d 597, 610 (2d Cir. 1995) ("[B]y loosening the strictures on scientific evidence set by Frye, Daubert reinforces the idea that there should be a presumption of admissibility."), cert. denied, 517 U.S. 1229 (1996).

f.  General Electric Co. v. Joiner: "Thus, while the Federal Rules of Evidence allow district courts to admit a somewhat broader range of scientific testimony than would have been admissible under Frye, they leave in place the ‘gatekeeper' role of the trial judge in screening such evidence. A court of appeals applying ‘abuse of discretion' review to such rulings may not categorically distinguish between rulings allowing expert testimony and rulings disallowing it." Id. at 142.

g.  Kumho Tire Co. v. Carmichael, 119 S.Ct. 1167 (1999)(extending Daubert to non-scientific evidence).

h.  But see Questioned documents and hair comparison cases infra.

11.  Daubert: Enumerated Factors

a.  Testing of scientific theory or technique. "[T]he statements constituting a scientific explanation must be capable of empirical test." Hempel, Philosophy of Natural Science 49 (1966); "[T]he criterion of the scientific status of a theory is its falsifiability, or refutability, or testability." Popper, Conjectures and Refutations: The Growth of Scientific Knowledge 37 (5th ed. 1989). But see Adina Schwartz, A "Dogma of Empiricism" Revisited: Daubert v. Merrell Dow Pharmaceuticals, Inc. and the Need to Resurrect the Philosophical Insight of Frye v. United States, 10 Harv. J. Law and Technology 149, 152 (1997) ("[T]he Daubert decision rests on a basic misunderstanding of the history and philosophy of science. In contrast, this analysis will imply that the much-maligned Frye standard is grounded in a fundamental philosophical insight.").

b.  Peer review and publication. Brief of the New England Journal of Medicine, et al., as Amici Curiae in Support of Respondent, Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993), at 2 ("‘Good science' is a commonly accepted term used to describe the scientific community's system of quality control which protects the community and those who rely upon it from unsubstantiated scientific analysis. It mandates that each proposition undergo a rigorous trilogy of publication, replication and verification before it is relied upon.").

c.  Known or potential error rate. Cited U.S. v. Smith, 869 F.2d 348, 353-54 (7th Cir. 1989) (surveying studies of the error rates for "voiceprints"). Giannelli, Daubert: Interpreting the Federal Rules of Evidence, 15 Cardozo L. Rev. 1999 (1994) (arguing that courts that decided voiceprint cases misunderstood the scientific issues).

d.  Existence and maintenance of standards controlling technique's operation. Cited U.S. v. Williams, 583 F.2d 1194, 1198 (2d Cir. 1978) (noting professional organization's standards governing "voiceprints"), cert. denied, 439 U.S. 1117 (1979).

e.  "General acceptance." Relevant but not decisive. "Widespread acceptance can be an important factor in ruling particular evidence admissible, and ‘a known technique which has been able to attract only minimal support within the community' ... may properly be viewed with skepticism." 509 U.S. at 594.

12.  Other Factors

a.  Rule 702 standard is "a flexible one." 509 U.S. at 594. "Many factors will bear on the inquiry, and we do not presume to set out a definitive checklist or test." Id. at 593.

b.  Other authorities cited: "A number of authorities have presented variations on the reliability approach, each with its own slightly different set of factors. ... To the extent that they focus on the reliability of evidence as ensured by the scientific validity of its underlying principles, all these versions may well have merit, although we express no opinion regarding any of their particular details." Id. at 594-955 n. 12.

c.  3 Weinstein and Berger, Weinstein's Evidence (1993):

i.  General acceptance in the field.

ii.  Expert's qualifications and stature.

iii.  Use which has been made of the new technique.

iv.  Potential rate of error.

v.  Existence of specialized literature.

vi.  Novelty of the new invention.

vii.  Extent to which the technique relies on the subjective interpretation of the expert.

d.  McCormick, Scientific Evidence: Defining a New Approach to Admissibility, 67 Iowa L. Rev. 879, 911-12 (1982) (listing 11 factors).

i.  Presence of safeguards in the technique.

ii.  Analogy to other admissible scientific techniques.

iii.  Nature and breadth of the inference adduced.

iv.  Clarity and simplicity with which the technique can be described or explained.

v.  Extent to which the basic data are verifiable by the court and the jury.

vi.  Availability of other experts to evaluate the technique.

vii.  Probative significance of the evidence in the circumstances of the case.

viii.  Care with which the technique was employed.

e.  Daubert II. Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1316 (9th Cir.) (research conducted in anticipation of litigation not valid), cert. denied, 515 U.S. 869 (1995).

f.  Purpose. "[S]cientific validity for one purpose is not necessarily scientific validity for other, unrelated purposes." 509 U.S. at 591, citing Starrs, Frye v. United States Restructured and Revitalized: A Proposal to Amend Federal Evidence Rule 702, 26 Jurimetrics J. 249, 258 (1986).

13.  "Technical and Specialized Knowledge" under FRE 702.

a.  Daubert dealt only with "scientific evidence." "Our discussion is limited to the scientific context because that is the nature of the expertise offered here." 509 U.S. at 590 n. 8.

b.  Newtonian Science. Moore v. Ashland Chemical, Inc., 126 F.3d 679, 685 (5th Cir. 1997) ("the Daubert Court defined ‘scientific knowledge' in terms of ‘hard science' or ‘Newtonian science.'"), cert. denied, 119 S.Ct 1454 (1999), citing Imwinkelried, The Next Step After Daubert, Developing a Similar Epistemological Approach to Ensuring the Reliability of Nonscientific Expert Testimony, 15 Cardozo L. Rev. 2271, 2276-77 (1994).

c.  Technical Expertise — Reliability. United States v. Jones, 107 F.3d 1147, 1156 (6th Cir. 1997) ("It is thus clear that a district court has the duty to decide not only whether [handwriting comparison] evidence is relevant but also whether it is reliable. But this conclusion does not come from the Daubert opinion itself; rather, it comes from the Federal Rules of Evidence."), cert. denied, 117 S.Ct. 2527 (1977); United States v. Thomas, 74 F.3d 676, 681 (6th Cir.) (police officer) ("[A]lthough ‘Daubert dealt with scientific experts, its language relative to the ‘gatekeeper' function of federal judges is applicable to all expert testimony offered under Rule 702.'"), cert. denied, 517 U.S. 1162 (1996); Cummins v. Lyle Indus., 93 F.3d 362, 367 n. 2 (7th Cir. 1996) (design engineer); Ventura v. Titan Sports, Inc., 65 F.3d 725, 733 (8th Cir. 1995) (economist), cert. denied, 516 U.S. 1174 (1996); United States v. Alzanki, 54 F.3d 994, 1005-06 (1st Cir. 1995) (victimologist), cert. denied, 516 U.S. 1111 (1966). But see Iacobelli Construction, Inc. v. County of Monroe, 32 F.3d 19, 25 (2d Cir. 1994).

d.  Moore v. Ashland Chemical, Inc., 126 F.3d 679, 686 (5th Cir. 1997), cert. denied, 119 S.Ct. 1454 (1999):

"[T]he requirements that Daubert found to be inherent in Rule 702, viz., that the trial judge must ensure that the expert's evidence is not only relevant, but reliable, must be applicable to ‘technical, or other specialized knowledge,' as well as to scientific testimony. Otherwise, Rule 702 would not place limits on the admissibility of non-scientific expert testimony comparable to those it imposes on purportedly scientific evidence."

"Moreover, the Daubert opinion at several points clearly implies that it is drawing on principles of the Federal Rules that are generally applicable to all types of expert testimony."

"[U]nder Rule 702, an opinion based on other technical or specialized knowledge, must be grounded in the principles, methods and procedures of the particular field of knowledge involved. Every discipline employs a body of methods, rules, and postulates, i.e., methodology, both in its ordinary functions and in developing and adopting new concepts, techniques, and analogues. Therefore, the ‘knowledge' of each discipline, under Rule 702, is both its principles and methodology and the theories, techniques or inferences produced through its methodology. Thus, the profferred opinion of any expert in a field of knowledge, in order to be evidentiary reliable, must either be based on the current knowledge, principles and methodology of the expert's discipline or be soundly inferred or derived therefrom." Id. at 687.

"[T]he hard science techniques or methods that become the ‘Daubert factors' generally are not appropriate for assessing the evidentiary reliability of a proffer of expert clinical medical testimony." Id. at 688.

e.  1998 proposed amendment to Rule 702 also attempts to address this issue. This proposal adds the following clause: "provided that (1) the testimony is sufficiently based upon reliable facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.")(submitted to the Standing Committee in June, 1998). 181 F.R.D. 144-52 (1999).

f.  Kumho Tire Co. v. Carmichael, 119 S.Ct. 1167 (1999)(civil case—a tire blow-out accident, in which the Supreme Court upheld the trial court's decision to exclude engineering testimony concerning the cause of the blowout).

i.  "Daubert's general holding—setting forth the trial judge's general ‘gatekeeping' obligation—applies not only to testimony based on ‘scientific' knowledge, but also to testimony based on ‘technical' and ‘other specialized' knowledge." 119 S. Ct. at 1171.

ii.  Rationale. Holding based on (1) a textual analysis of Rule 702 and (2) the evidentiary rationale that underlay Daubert, i.e., that the Federal Rules grant experts special latitude unavailable to other witnesses on the assumption that expert testimony has a reliable basis. In addition, "it would prove difficult, if not impossible, for judges to administer evidentiary rules under which a gatekeeping obligation depended upon a distinction between ‘scientific' knowledge and ‘technical' or ‘other specialized knowledge.' There is no clear line that divides the one from the others. Disciplines such as engineering rest upon scientific knowledge. Pure scientific theory itself may depend for its development upon observation and properly engineered machinery. And conceptual efforts to distinguish the two are unlikely to produce clear legal lines capable of application in particular cases." Id. at 1174.

iii.  Daubert Factors. "[A] trial court may consider one or more of the specific factors that Daubert mentioned when doing so will help determine that testimony's reliability. But, as the Court stated in Daubert, the test of reliability is ‘flexible,' and Daubert's list of specific factors neither necessarily nor exclusively applies to all experts or in every case." 119 S.Ct. at 1171.

"[W]e can neither rule out, nor rule in, for all cases and for all time the applicability of the factors mentioned in Daubert, nor can we now do so for subsets of cases categorized by category of expert or by kind of evidence. ...

Daubert itself is not to the contrary. It made clear that its list of factors was meant to be helpful, not definitive. Indeed, those factors do not all necessarily apply even in every instance in which the reliability of scientific testimony is challenged. It might not be surprising in a particular case, for example, that a claim made by a scientific witness has never been the subject of peer review, for the particular application at issue may never previously have interested any scientist. Nor, on the other hand, does the presence of Daubert's general acceptance factor help show that an expert's testimony is reliable where the discipline itself lacks reliability, as, for example, do theories grounded in any so-called generally accepted principles of astrology or necromancy." Id. at 1175.

iv.  Procedural issues. In Kumho, the Court ruled that a trial court had discretion in selecting the factors to consider in gauging the reliability of non-scientific expert testimony. There are two aspects to this ruling. First, "whether Daubert's specific factors are, or are not, reasonable measures of reliability in a particular case is a matter that the law grants the trial judge broad latitude to determine." Id. at 1176. Second, the judge also has discretion concerning the procedural aspects of this inquiry. The trial court is not required to hold a "Daubert hearing" every time expert testimony is challenged. See Margaret Berger, Procedural Paradigms For Applying the Daubert Test, 78 Minn. L. Rev. 1345 (1994).

v.  Effect. Kumho will further strengthen arguments challenging a wide array of expert testimony commonly used in criminal litigation. Such attacks had commenced soon after Daubert was decided.

14.  Frye-Daubert "Plus"

a.  Goldberg, "A New Day for DNA?," 78 A.B.A.J. 84, 84 (Apr. 1992) ("Frye Plus").

b.  People v. Castro, 545 N.Y.S.2d 985, 987 (Sup.1989). Because of the "complexity" of DNA analysis and its "powerful impact" on a jury, the court held that "passing muster under Frye alone is insufficient." Court set forth a three-pronged analysis: underlying theory has been generally accepted, (2) procedures implementing the theory have been generally accepted, and (3) testing laboratory has followed these procedures. First 2 prongs but not 3d satisfied.

c.  Federal courts pre-Daubert: U.S. v. Two Bulls, 918 F.2d 56 (8th Cir. 1990) (adopting Castro approach), reh'g granted, vacated en banc as moot after defendant's death, 925 F.2d 1127 (8th Cir. 1991), but see U.S. v. Jakobetz, 955 F.2d 786, 794 (2d Cir. 1992) (rejecting "elevated standard" as "even more stringent than that in Frye."), cert. denied, 506 U.S. 834 (1992).

d.  Requirement predates the DNA cases: "It is widely recognized that the party offering the results of laboratory tests must ... vouch for its correct administration in the particular case." U.S. v. Bruno, 333 F. Supp. 570, 574 (E.D. Pa. 1971) (chromatographic analysis of ink). See 1 Giannelli and Imwinkelried, Scientific Evidence 36 (2d ed. 1993) (listing cases involving polygraph, voiceprint, as well as other types of scientific evidence that adopt this position).

e.  Daubert Jurisdictions: U.S. v. Martinez, 3 F.3d 1191, 1197-98 (8th Cir. 1993 ("We believe that the reliability inquiry set forth in Daubert mandates that there be a preliminary showing that the expert properly performed a reliable methodology in arriving at his opinion. ... In order to determine whether scientific testimony is reliable, the court must conclude that the testimony was derived from the application of a reliable methodology or principle in the particular case."), cert. denied, 510 U.S. 1062 (1994).

f.  Polygraph: United States v. Galbreth, 908 F. Supp. 877, 881-82 (D.N.M. 1995): "It is not entirely clear whether Daubert requires as a prerequisite to admissibility that the proponent establish the validity of the specific application of a scientific technique." Id. at 880-81. "[A]fter reviewing the case law addressing this issue in the context of other forensic laboratory techniques and after careful consideration of the testimony presented at the hearing regarding the polygraph technique, the Court holds that in the context of polygraph evidence, such scrutiny is imperative to a faithful application of Daubert." The court went on to rule "that in addition to establishing the scientific validity of the polygraph technique in the abstract, the proponent of the proposed testimony must also prove that the specific examination was conducted properly by a competent examiner."

15.  Constitutional Issue

a.  State v. Dorsey, 87 N.M. 323, 325, 532 P.2d 912, 914-15, aff'd, 88 N.M. 184, 539 P.2d 204 (1975), New Mexico appellate court upheld the admission of defense sponsored polygraph evidence.

b.  McMorris v. Israel, 643 F.2d 458, 462 (7th Cir. 1981) ("Where credibility is as critical as in the instant case, the circumstances are such as to make the polygraph evidence materially exculpatory within the meaning of the Constitution."), cert. denied, 455 U.S. 967 (1982).

c.  United States v. Scheffer, 44 M.J. 442 (C.C.A.F. 1996) (holding that Military Rule 707, which excludes polygraph evidence, was unconstitutional as applied in that case: "A per se exclusion of polygraph evidence offered by an accused to rebut an attack on his credibility, without giving him an opportunity to lay a foundation under Mil. R. Evid. 702 and Daubert, violates his Sixth Amendment right to present a defense. We limit our holding to exculpatory evidence arising from a polygraph examination of an accused, offered to rebut an attack on his credibility." Id. at 445.

d.  United States v. Scheffer, 523 U.S. 303, 118 S.Ct. 1261 (1998). Court held that adoption of the per se rule of exclusion of polygraph evidence is not unconstitutional.

i.  Right to Present a Defense. The Court acknowledged once more the right to present a defense, albeit a qualified right. "A defendant's right to present relevant evidence is not unlimited, but rather is subject to reasonable restrictions." In the Court's view, evidence "rules do not abridge an accused's right to present a defense so long as they are not ‘arbitrary' or ‘disproportionate to the purposes they are designed to serve.' Moreover, we have found the exclusion of evidence to be unconstitutionally arbitrary or disproportionate only where it has infringed upon a weighty interest of the accused."

ii.  Majority. Justice Thomas's opinion identified three interests that support the per se rule: (1) ensuring that only reliable evidence is introduced at trial, (2) preserving the jury's role in determining credibility, and (3) avoiding litigation of collateral issues. Interestingly, Justice Kennedy along with three other Justices rejected the second and third interests. As to reliability, the opinion notes that "the scientific community remains extremely polarized about the reliability of polygraph techniques." Id. at 1265. The opinion also observed that "[n]othing in Daubert foreclosed, as constitutional matter, per se exclusionary rules for certain types of expert or scientific evidence." Id. at 1266 n. 7. Justice Thomas also cited the preservation of the jury's role in determining the credibility. "By its very nature, polygraph evidence may diminish the jury's role in making credibility determinations." Id. at 1267 A third reason supporting the per se rule of exclusion is, in Justice Thomas's view, the avoidance of litigation on collateral issues, which "prolongs criminal trials and threatens to distract the jury from its central function of determining guilt or innocence." Id.

iii.  In his concurring opinion, Justice Kennedy pointed out that Federal Rule 704 abolishes the ultimate issue rule and thus the "invading the province of the jury" argument has been rejected under most modern evidence codes. Significantly, he also wrote:

"I doubt, though, that the rule of per se exclusion is wise, and some later case might present a more compelling case for introduction of the testimony than this one does. Though the considerable discretion given to the trial court in admitting and excluding scientific evidence is not a constitutional mandate, see Daubert ... there is some tension between that rule and our holding today. And, as Justice Stevens points out [in dissent], there is much inconsistency between the Government's extensive use of polygraph to make vital security determinations and the argument it makes here, stressing the inaccuracy of these tests." Id. at 1269.

e.  1 Giannelli and Imwinkelried, Scientific Evidence § 1-7 (2d ed. 1993).

(This abstract continues in Part 3)


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