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by Daniel S. Fridman and J. Scott Janoe - Harvard Law School '99
If one accepts the proposition that the trial judge has a duty to exclude unreliable experts, a host of concerns inevitably follows. How is a trial judge to assess the scientific or technical adequacy of expert testimony if even a cursory understanding of the issues requires specialized training? Can anyone without such training fully understand the issues and come to a rational conclusion as to their validity? To what degree can the trial judge rely on the expert's own assertions about his or her qualifications? All of these concerns carry heavy weight for in many cases the trial judge is hardly a more qualified assessor of scientific credibility than the jury itself. In this introduction and the papers which follow it, we have laid out some possible answers to the myriad questions raised by judicial gatekeeping. This first paper attempts to establish a historical perspective on gatekeeping in Mississippi. The papers which follow it give a more generalized picture of the gatekeeping debate. Ultimately we hope that you find these materials helpful in formulating or fine tuning your own approach to science in the courts.
From Frye to Daubert:
Judicial Gatekeeping in the Federal Courts
With the adoption of the Federal Rules of Evidence in 1975, courts, scholars and practitioners alike began to question whether Frye would survive as the sole admissibility standard for expert testimony. Under the Federal Rules, judges were seemingly afforded more discretion in making admissibility determinations. Rule 104(a) assigns judges the responsibility of making a preliminary determination on whether to allow a given expert to testify. Rule 702 goes on to guide this decision by requiring the judge to determine whether the admission of such testimony will assist the trier of fact to understand evidence or determine a fact at issue. Finally, Rule 403 suggests that the judge may exclude evidence if its likely prejudicial effect outweighs its probative value. The question was then to what degree would the arguably conservative Frye general acceptance standard survive in the wake of the presumably more liberal admissibility framework embodied in the new Federal Rules of Evidence.
The U.S. Supreme Court endeavored to answer the question of Frye's continued viability in Daubert v. Merrell Dow Pharmaceuticals, Inc.(3) In Daubert the Court held that Rule 702 did in fact supersede the Frye standard and enumerated a new standard to instruct judges on how to act as judicial gatekeepers. This new approach consisted of a two-pronged analysis of the testimony centering on the testimony's reliability and relevance. In determining reliability the court must engage in 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 at issue."(4) In addition, when determining scientific reliability the trial judge should consider:
(1) whether the proffered knowledge can be or has been tested, (2) whether the theory or technique has been subjected to peer review and publication, (3) the known or potential rate of error, and (4) whether the theory or technique has gained general acceptance in the relevant scientific discipline.(5)This nonexhaustive list of indicia of reliability relegated the Frye standard to one of a handful of guidelines that may be employed in ruling on admissibility. In conjunction with the newly ordained relevancy prong, the reliability criteria form a substantially more robust framework with which to analyze given scientific testimony.
Frye: Mississippi's Dominant
[i]s the field of expertise one in which it has been scientifically established that due investigation and study in conformity with techniques and practices generally accepted within the field will produce a valid opinion? Where the answer to this question is in the affirmative, we generally allow expert testimony.(7)Even with the adoption of the Mississippi Rules of Evidence in 1985, this formulation of the Frye inquiry would remain the applicable standard in Mississippi's courts.
The Mississippi Rules of Evidence
[i]t is important to note that Rule 702 does not relax the traditional standards for determining that the witness is indeed qualified to speak an opinion on a matter within his purported field of knowledge. Nor does 702 relax the requirement that the scientific principle from which the expert's opinion is derived "must be sufficiently established to have gained general acceptance in the particular field to which it belongs."(9)The continued validity of the Frye/House regime remains to this day with only minor modifications despite Daubert.
Polk v. State: Frye
I. Is there a theory, generally accepted in the scientific community, that supports the conclusion that DNA forensic testing can produce reliable results?Although the Polk Court asserted that "[t]he first two prongs of the test are essentially a re-wording of the Frye test,"(13) the reference to "reliable results" suggests a Daubert-like broadening of the Frye inquiry. Additionally, the third prong's focus on methodology and potential error is quite similar to the inquiry Daubert would establish the following year. Despite this seeming break with the traditional "general acceptance" standard, Mississippi courts have continued to cite Polk for the proposition that "Mississippi has continued to follow the Frye 'general acceptance' standard even after the adoption of Rule 702 of the Mississippi Rules of Evidence."(14) Moreover, the state Supreme Court has used this very quote to support its formal repudiation of Daubert in Gleeton v. State.(15) One can imagine that this rejection of Daubert could be justified by citing the implication in Polk that its three-pronged, Daubert-like inquiry is subsumed by the Frye test. To date, however, no court in the state has employed such reasoning, leaving one to wonder if Daubert and/or the broadened Polk inquiry are truly dead in Mississippi.
Joiner and the Future
of Judicial Gatekeeping
The Supreme Court reversed the Court of Appeals and noted that such a "particularly stringent" standard of review was improper in this context:
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 which disallow it. We likewise reject respondent's argument that because the granting of summary judgment in this case was "outcome determinative," it should have been subject to a more searching standard of review. On a motion for summary judgment, disputed issues of fact are resolved against the moving party -- here, petitioners. But the question of admissibility of expert testimony is not such an issue of fact, and is reviewable under the abuse of discretion standard.(23)The circuit court's "particularly stringent," pro-admission standard was indeed short lived.
In concluding that the district court did not abuse its discretion in excluding the plaintiff's experts, the Supreme Court examined the adequacy of the expert testimony the plaintiff sought to introduce to prove causation. The plaintiff's experts relied heavily upon animal studies to establish proof of causation in humans. The Court found, however, that the plaintiff failed to establish enough of a foundation to support the admissibility of these studies:
Rather than explaining how and why the experts could have extrapolated their opinions from these seemingly far-removed animal studies, respondent chose "to proceed as if the only issue [was] whether animal studies can ever be a proper foundation for an expert's opinion." Of course, whether animal studies can ever be a proper foundation for an expert's opinion was not the issue. The issue was whether these experts' opinions were sufficiently supported by the animal studies on which they purported to rely. The studies were so dissimilar to the facts presented in this litigation that it was not an abuse of discretion for the District Court to have rejected the experts' reliance on them.(24)Finally, the Supreme Court went on to suggest that it was not an abuse of discretion for the district court to demand a closer relationship between the epidemiological studies offered by the plaintiffs and the opinions drawn from them by the experts:
A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered. See Turpin v. Merrell Dow Pharmaceuticals, Inc. 959 F.2d 1349, 1360 (CA 6), cert. denied, 506 U.S. 826, 121 L. Ed. 2d 47, 114 S. Ct. 84 (1992). That is what the District Court did here, and we hold that it did not abuse its discretion in so doing.(25)Upholding a judge's right to exclude given expert testimony on the basis of perceived analytical gaps in the science is an unprecedented broadening of the gatekeeper role. Such a ruling at first seems to run contrary to the "liberal thrust" of the Rules of Evidence as articulated in Daubert. It remains to be seen whether courts will be as deferential when judges exercise their discretion in favor of admissibility of arguably questionable scientific evidence. Whether Joiner will effect Mississippi and states like her that have not adopted Daubert also remains to be seen.
F. 1013 (D.C. Cir. 1923).
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