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The Paper | The Conference | Leading Cases
The State of Judicial Gatekeeping in Idaho, Montana, North Dakota, South Dakota, and Wyoming

Written by: Daniel S. Fridman and J. Scott Janoe - Harvard Law School '99


Table of Contents

     Expert witnesses have become fixtures in today’s courts.  From fiber comparisons to economic projections to psychiatric evaluations, the range of offered expertise covers the span of human knowledge.  Hardly a case of any consequence goes to trial without expert testimony of some kind.  With such widespread use of expert testimony comes the inevitable question:  what is the trial judge’s role in overseeing the testimony of expert witnesses?  Unlike lay witnesses, whose testimony a jury can evaluate based on their own common sense and experience, expert witnesses offer conclusions based on practices and knowledge beyond the ken of the average juror.  As a consequence, testimony by unpoliced expert witnesses can have a potentially prejudicial effect on jurors, who may be inclined to believe the experts solely because of their "expert status."  How is the trial judge to know whether the expert is merely speculating, or whether the evidence on which the expert bases his or her conclusions is sufficient to support the conclusion?  Judges certainly prevent lay witnesses from speculating and are expected to exclude the testimony of a witness offering wholly speculative evidence.  Why should this mandate be any different when the witness purports to be an expert?
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 these states.  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
     In 1923, the D.C. Circuit announced its landmark decision regarding the admissibility of expert opinion testimony on novel scientific procedures in Frye v. United States.1  In Frye, the defendant attempted to show his innocence by proffering the results of a lie detector test that purportedly demonstrated that he was telling the truth when he denied killing the victim.  The court ruled that the evidence was inadmissible because the scientific principles upon which the procedure was based were not, "sufficiently established to have gained general acceptance in the particular field in which it belongs."2  This so-called Frye general acceptance test remained the standard employed in both federal courts and state courts around the country for years to come.

     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. 

Judicial Gatekeeping in Idaho
     With the adoption of the Idaho Rules of Evidence, the days of the Frye test became numbered in Idaho.  Idaho Rule of Evidence 702 is identical to its federal counterpart.  When the Idaho State Bar Evidence Committee submitted the text of Rule 702 to the state supreme court for approval in 1985, the committee noted that Rule 702 should supplant the Frye general acceptance standard in Idaho.6   However, it would not be until State v. Rodgers7  in 1991 that the state supreme court would reject Frye in favor of a reliability and helpfulness standard under Rule 702.8  Similarly, in State v. Gleason9 the Idaho Supreme Court endorsed unequivocally Rule 702 as the proper test for the admissibility of expert testimony.10  Unfortunately, in each of these early cases the Court neither articulated guidelines for the proposed reliability and helpfulness standards, nor reasoned whether or not the proposed Daubert standards were applicable.11

     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.14
Accordingly, 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.18
Although 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. 

Judicial Gatekeeping in Montana
     Montana Rule of Evidence 702 is identical to Federal Rule of Evidence 702.  In 1983 the Montana Supreme Court acknowledged the inherent conflict between the Montana Rules of Evidence and the Frye test by noting in Barmeyer v. Montana Power Co.19 that, "the general acceptance rule is not in conformity with the new rules of evidence."20   Under Barmeyer, relevant scientific testimony was to be admitted, "unless an exaggerated popular opinion of the accuracy of a particular technique makes its use prejudicial or likely to mislead the jury."21   The court went on to explain that any flaws in the testimony could be attacked through the tried and true methods of cross-examination and refutation.22

     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

Judicial Gatekeeping in North Dakota
     North Dakota is rare among states in that it never formally adopted the Frye standard.  In 1983, the North Dakota Supreme Court noted in State v. Brown that the state had "never directly adopted the Frye rule."31  However, North Dakota’s approach has been generally to use the "general acceptance" standard.  This has occasionally involved using as a factor in the "general acceptance" test an examination of whether the technique at issue is admissible in other states.32   Currently, North Dakota has a Rule 702 that is very similar to Fed. R. Evid. 702.  Without overruling Frye, the North Dakota Supreme Court recognized that the United States Supreme Court "held that the Frye test, requiring general acceptance within the relevant scientific community, has been superseded by Fed. R. Evid. 702."33   Although the Daubert opinion has not been analyzed since McLaughlin, it will be interesting to see in future cases to what extent Rule 702 will loosen the admissibility standards for scientific evidence in North Dakota. 

Judicial Gatekeeping in South Dakota
     Until the Daubert decision in 1993, South Dakota was applying Frye.  However, by 1990, it was clear that some judges were becoming dissatisfied with the ease of admitting potentially prejudicial evidence, without regard to its reliability, based solely on its "general acceptance."  For example, in State v. Wimberly,34 a defendant attacked the admissibility of DNA evidence not on the basis of "general acceptance," because it was established that DNA evidence is generally accepted, but instead the challenge was based on the allegation that the test results were unreliable.  The majority rejected the challenge holding that reliability of the test methodology went to the credibility of the expert witness.  Justice Henderson, in his dissent however, advocated a greater foundational basis for establishing the admissibility of DNA evidence:

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 403.35
This 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

Judicial Gatekeeping in Wyoming
     In Rivera v. State39 the Wyoming Supreme Court noted that Wyoming Rule of Evidence 702, which is identical to Federal Rule of Evidence 702, had supplanted the Frye test in the state.40  Under Rivera the key inquiry is whether the requisite foundation for the expert testimony has been established:

[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.41
This 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

Joiner and the Future of Judicial Gatekeeping
     While these states were attempting to address how Daubert related to their respective state jurisprudence, the U.S. Supreme Court was busy attempting to clarify its holding in Daubert.  Recently, in General Electric Co. v. Joiner45 the U.S. Supreme Court determined that the "abuse of discretion" standard is the proper standard of review for a trial court’s decision to admit or exclude expert testimony under Daubert.  In Joiner an electrician sued the manufacturers of a coolant used in electrical transformers which he occasionally came into contact with when repairing power equipment.  He alleged that although he was a smoker with a history of lung cancer in his family, his exposure to the PCBs, furans, and dioxins in the coolant "promoted" his development of small cell lung cancer.46  The defense removed the case to federal court and moved for summary judgment based partly on the contention that, "there was no admissible scientific evidence that PCBs promoted Joiner’s cancer."47  The district court granted summary judgment on the basis that, "the testimony of Joiner’s experts had failed to show that there was a link between exposure to PCBs and small cell lung cancer."48  They further went on to conclude that the testimony of Joiner’s experts did not rise above subjective belief or unsupported speculation, and therefore, should not be admitted into evidence.49  The Court of Appeals for the Eleventh Circuit reversed the district court’s holding and reasoned that, "because the Federal Rules of Evidence governing expert testimony display a preference for admissibility, we apply a particularly stringent standard of review to the trial judge’s exclusion of expert testimony."50

     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.51
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.52
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.53
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.  How Joiner will effect other states in the nation that employ the abuse of discretion standard also remains to be seen. 


1 293 F. 1013 ( D.C. Cir. 1923).
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.
47 Id.
48 Id.
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.
Page Last Modified on April 20, 1999 by Dan Fridman - Copyright 1999
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