October 1999 Volume 1 Number
Presentations at the
2nd International Symposium on the
Forensic Examination of Questioned Documents
Albany, New York
June 14 18, 1999
The following abstracts
of the presentations are ordered alphabetically by authors' last
Post-Daubert Considerations in Document
(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
of Scientific Evidence
of the underlying theory.
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"
of any instrumentation used.
to proper procedures.
of both the person conducting the procedure and the person interpreting
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:
of the underlying theory
(e.g., the Doppler effect);
of the technique applying that theory (e.g., moving versus stationary radar and the
particular model of radar); and
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Please do not quote without permission.
of Proof: Validity of Theory and Technique
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).
i. E.g., radar, intoxication, and blood tests
are often subject to legislative regulation.
statutes. More controversial
techniquese.g. polygraph, hypnosis, DNA, rape trauma syndrome,
and battered wife syndrome.
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).
Four evidentiary tests:
"general acceptance" test.
3. Daubert in the
not applicable to states.
509 U.S. at 587 ("We interpret the legislatively enacted
Federal Rules of Evidence as we would any statute.").
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.
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 courtwhen construing a rule we have adoptedmust
rely on text and our own intent in adopting or amending the rule
in the first instance."
Rule 702 ("recognized"
scientific, technical, or other knowledge).
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
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
and Frye jurisdictions.
See Appendixes A, B,
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
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).
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.
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 conclusionsmodels, photographs, and X-rayswere
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"
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
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.").
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).
of Proof: (1) scientific-legal
publications; (2) judicial opinions, and (3) expert testimony.
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.
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.
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).
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
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 ...").
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
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.
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
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.
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
validationi.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
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.").
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.
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.
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
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 validationi.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."
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.").
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).
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).
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.
Tire Co. v. Carmichael,
119 S.Ct. 1167 (1999)(extending Daubert to non-scientific
h. But see
Questioned documents and hair comparison cases infra.
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
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
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).
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).
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
c. 3 Weinstein
and Berger, Weinstein's Evidence
acceptance in the field.
qualifications and stature.
iii. Use which
has been made of the new technique.
rate of error.
of specialized literature.
of the new invention.
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).
of safeguards in the technique.
to other admissible scientific techniques.
and breadth of the inference adduced.
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.
of other experts to evaluate the technique.
significance of the evidence in the circumstances of the case.
with which the technique was employed.
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
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.
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).
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).
v. Ashland Chemical, Inc.,
126 F.3d 679, 686 (5th Cir. 1997), cert. denied, 119 S.Ct.
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.
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).
Tire Co. v. Carmichael,
119 S.Ct. 1167 (1999)(civil casea tire blow-out accident,
in which the Supreme Court upheld the trial court's decision
to exclude engineering testimony concerning the cause of the
forth the trial judge's general gatekeeping' obligationapplies
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.
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
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.
a. Goldberg, "A New Day for DNA?,"
78 A.B.A.J. 84, 84 (Apr. 1992) ("Frye Plus").
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.
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
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).
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
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
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.
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).
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.
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
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
Scientific Evidence § 1-7 (2d ed. 1993).
abstract continues in Part 3)
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FORENSIC SCIENCE COMMUNICATIONS OCTOBER 1999 VOLUME
1 NUMBER 3