| Message Board | News & Developments | Subscribe to the Judicial Gatekeeping Newsletter |
| Site Map | Search | Contact Us | Credits | Back
Written by: Daniel S. Fridman and J. Scott Janoe - Harvard Law School '99
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.5This 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.
Gatekeeping in Idaho
In Ryan v. Beisner,12 the Idaho Court of Appeals attempted to shed some light on how state courts should address the admissibility of expert testimony under Rule 702. The Ryan court cited favorably to the New Jersey Supreme Court’s decision in Landrigan v. Celotex13 for the proposition that:
[The admissibility of expert testimony] depends on the expert’s ability to explain pertinent scientific principles and to apply those principles to the formulation of his or her opinion. Thus, the key to admission of the opinion is the validity of the expert’s reasoning and methodology. In resolving these issues, the trial court should not substitute its judgment for that of the relevant scientific community. The court’s function is to distinguish scientifically sound reasoning from that of the self-validating expert, who uses scientific terminology to present unsubstantiated personal beliefs.14Accordingly, since evidence that rests on speculation or conjecture is of no help to the trier of fact, any such evidence must be excluded under Rule 702.15
In a similar recent decision, the Idaho Court of Appeals has gone so far as to look to Daubert for guidance in assessing admissibility under Rule 702.16 In State v. Parkinson17 the Court of Appeals listed the four Daubert indicia of reliability along with six additional factors suggested by other courts and commentators as a framework for determining reliability of scientific testimony. These other non-Daubert factors include:
(1) the presence of safeguards in the technique; (2) analogy to other scientific techniques whose results are admissible; (3) the nature and breadth of inferences drawn; (4) the extent to which the basic data are verifiable by the court and jury; (5) availability of other experts to test and evaluate the technique; (6) the probative significance of the evidence in the circumstances of the case.18Although the Parkinson court did not adopt either set of criteria as the definitive checklist for admissibility, the court’s willingness to discuss the Daubert factors and similar indicia of reliability suggests that a clearer statement of the Idaho Supreme Court’s Rule 702 mandates may be soon to come.
Gatekeeping in Montana
Soon after Daubert was decided, the Montana Supreme Court in Hart-Albin Co. v. McLees, Inc.23 noted with approval that Daubert had supplanted the Frye test with a Rule 702 test that centered on assistance to the trier of fact.24 In State v. Moore25 the state supreme court expressly adopted the, "Daubert standard for the admission of scientific testimony."26 The Moore court also cited with approval to the non-exhaustive list of admissibility criteria noted by the Daubert majority.27 In State v. Weeks28 and State v. Cline29 the Montana Supreme Court went on to apply Daubert and Moore to the full range of expert testimony admissible under Montana Rule 702.30
in North Dakota
in South Dakota
The trial court is to decide (1) whether DNA evidence is generally accepted by the scientific community, (2) whether the testing procedures used in this case are generally accepted as reliable if performed properly, (3) whether the test was performed properly in this case, (4) whether the evidence is more prejudicial than probative in this case, and (5) whether the statistics used to determine the probability of someone else having the same genetic characteristics is more probative than prejudicial under Rule 403.35This relevance / reliability approach is more consistent with an application of South Dakota’s Rules 702 and 403,36 which is therefore closer to an application of Daubert than a pure Frye approach. South Dakota finally repudiated the Frye standard it had been following in favor of Daubert in State v. Hofer.37 Subsequent to the adoption of Daubert in Hofer, South Dakota has reexamined DNA evidence with a stricter focus on relevance and reliability of the methodology.38
Gatekeeping in Wyoming
[I]n ruling upon the offer of such evidence in Wyoming, our trial courts need only be concerned with the requisite foundation. Because it does appear the possibility of an erroneous result is more likely to arise from the testing techniques than from the procedure, it is important for the trial court to be satisfied about the manner in which the testing was performed, and the qualifications of the individual who accomplished the scientific technique. These factors, however, are no different from those generally related to the acceptance of scientific evidence from an expert, and we do not perceive we are formulating any new law.41This recognition of the importance of methodological validity predated Daubert and provided the framework for Wyoming’s eventual tacit embrace of Daubert in Springfield v. State.42
In Springfield the state supreme court cited approvingly to Daubert as at least a possible analytical framework with which to judge scientific testimony. The Springfield court referred to three of the Daubert general observations as possible reliability guidelines: "whether the scientific theory or technique: 1) can or has been tested; 2) has been the subject of publication or peer review; and 3) has a ‘known potential error rate.’"43 In this context the court made no mention of general acceptance as a possible criterion. In the end the Springfield court came out similar to Daubert and declared that the helpfulness test premised on Rule 702 subsumes a relevancy analysis which in turn assumes a threshold of reliability.44
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.51The 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.52Finally, 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.53Upholding 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. How Joiner will effect other states in the nation that employ the abuse of discretion standard also remains to be seen.
2 Id. at 1014.
3 113 S. Ct. 2786 (1993).
4 Id. at 2796.
5 See id. at 2796-7.
6 See Merlyn W. Clark, The Impact of Daubert on the Admissibility of Expert Opinion, 39-APR Advocate (Idaho) 10, 13 (1996) citing Report of the Idaho State Bar Evidence Committee, C702, pp. 2-3 (4th Supp. 1985).
7 119 Idaho 1047 (1991).
8 See Clark, 39-APR Advocate at 13.
9 123 Idaho 62 (1992).
10 See id. at 65.
11 See Clark, 39-APR Advocate at 14.
12 123 Idaho 42 (Ct. App. 1996).
13 605 A.2d 1079 (N.J. 1992).
14 Ryan, 123 Idaho at 46.
15 See id. cited in Clark, 39-APR Advocate at 14.
16 See Clark, 39-APR Advocate at 14.
17 128 Idaho 29 (Ct. App.1996)
18 Parkinson, 128 Idaho at 34.
19 202 Mont. 185 (1983).
20 Id. at 193.
21 Id. at 193-94.
22 See id. at 194.
23 264 Mont. 1 (1994).
24 See id. at 10.
25 268 Mont. 20 (1994).
26 Id. at 42.
27 See id. at 41.
28 270 Mont. 63 (1995)
29 275 Mont. 46 (1996).
30 Robert L. Sterup, Into the Twilight Zone: Admissibility of Scientific Expert Testimony in Montana after Daubert, 58 Mont. L. Rev. 465, 471 (Summer 1997).
31 337 N.W. 2d 138, 148 n.6 (N.D. 1983).
32 See, e.g., State v. Brown (examining three different approaches taken by states around the country when confronted with the issue of admissibility of hypnotically refreshed testimony); City of Fargo v. McLaughlin, 512 N.W. 2d 700 (N.D. 1994) (assessing the approaches of other states on the question of whether a scientific foundation must be laid before HGN sobriety tests are admitted).
33 McLaughlin, 512 N.W. 2d at 705.
34 467 N.W. 2d 499 (S.D. 1990).
35 Id. at 507.
36 Both rules of evidence are essentially identical to its corresponding Federal Rule.
37 512 N.W. 2d 482 (S.D. 1994) (determining that the "evidentiary rules concerning the admission of scientific evidence, as pronounced in Daubert, were satisfied" in this case concerning the admissibility of intoxilizer test results); see also State v. Loftus, 573 N.W. 2d 167, 175 n.8 (S.D. 1997) ("when this Court adopted the Daubert standard in Hofer, we did so unconditionally and without discrimination concerning individual scientific disciplines such as DNA evidence").
38 See id. ("After an extensive review of the record, relevant case law and scientific literature, we agree that the product rule method of analyzing DNA statistical evidence rests upon a reliable foundation. . . . the trial court fulfilled its ‘gatekeeper’ duties prior to admission.").
39 840 P.2d 933 (Wyo. 1992).
40 See id. at 941.
41 See id. at 942.
42 860 P.2d 435.
43 Id. at 443.
44 See id.
45 118 S. Ct. 512 (1997).
46 See id. at 516.
49 See id. citing General Electric Co. v. Joiner, 865 F. Supp., 1310, 1326 (N.D. Ga. 1994).
50 General Electric Co. v. Joiner, 78 F.3d 524, 529 (11th Cir. 1996) (emphasis added).
51 Joiner, 118 S. Ct. at 517 (citations omitted)..
52 Id. at 518 (citations omitted).
53 Id. at 519.
All materials are the property of the Berkman Center for Internet & Society and Harvard Law School.
Materials may be reproduced, distributed, or quoted as long as appropriate credit and citation is given.