JUDICIAL GATEKEEPING IN RHODE ISLAND

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

Introduction
     Expert witnesses have become fixtures in today's courts. From fiber comparisons to economic projections and psychiatric evaluations, the range of offered expertise covers the span of human knowledge. Hardly a case of any consequence goes to trial without expert witnesses of some kind.

     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 concerning judicial gatekeeping. This first paper attempts to establish a historical perspective on gatekeeping in Rhode Island. 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 alleged 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 must 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 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 validity the trial judge should inquire:

(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⁾

     Although Rhode Island Rule of Evidence 702 is essentially identical to the Federal Rule 702 which superseded Frye, Rhode Island has not yet embraced wholeheartedly the evidentiary framework laid out in Daubert. Instead, Rhode Island has chosen to blaze its own trail in regards to how its courts should address the role of judges as judicial gatekeepers.

Early Developments in Rhode Island: Common Law Gatekeeping and Frye
     Judicial gatekeeping in Rhode Island can trace its history as far back as State v. Nagle⁽⁶⁾ decided twenty years before Frye.⁽⁷⁾ In Nagle, a murder trial, the prosecution offered the testimony of a medical examiner to prove that the fatal gunshot wound was not self-inflicted. The court admitted the testimony while noting that its probative value was based solely upon the skill, accuracy, and honesty of the medical examiner and the tests he had conducted. This seems to be the first instance of a Rhode Island court suggesting that scientific testimony must be verifiable before it is admissible.⁽⁸⁾ Although initially ahead of the curve in exploring questions of expert admissibility, Rhode Island did not formulate a modern "general acceptance" test akin to Frye until State v. Gregoire⁽⁹⁾ in 1959.

     In Gregoire the state supreme court endorsed the "general acceptance" idea in dicta, but refrained from citing Frye. Instead, the court chose to rely on Wigmore's treatise to support its overall assertion that, "judicial reliance upon such a device [an Alcometer] depends upon general acceptance of its reliability by experts in the relevant scientific field.⁽¹⁰⁾" While not a wholehearted embrace of Frye, Gregoire's tacit endorsement of the general acceptance criterion shaped the debate over admissibility of scientific testimony in Rhode Island for years to come.

Beyond "General Acceptance": From Morgan to Wheeler
     After Gregoire Rhode Island courts did not remain wedded strictly to a general acceptance regime for determining questions of admissibility. In Morgan v. Washington Trust Co.⁽¹¹⁾ the state Supreme Court employed a probative value/potential prejudice test quite similar to the Rule 403 balancing inherent in Daubert: 

The decision to include or exclude proposed expert testimony rests with the sound discretion of the trial judge. In reaching it he must give due consideration to the natural tendency of jurors to place greater weight on the testimony of one qualified as an expert.. His decision must reflect his belief that the value to be derived from the proposed testimony justifies the admission of the opinion evidence.⁽¹²⁾

     In a similar departure from the strict "general acceptance" standard the Rhode Island Supreme Court ruled in Powers v. Carvalho⁽¹⁴⁾ that lie detector results would be admitted, ". . . only if a foundation has been laid establishing the acceptance of the evidence as reliable and accurate in the relevant scientific fields of endeavor and of the qualifications or the expertise of the person who operated the device and interpreted its results.⁽¹⁵⁾" This reformulation of basic general acceptance doctrine marked the first time that the state supreme court suggested that the party seeking admission of expert testimony must demonstrate both that the underlying theory was valid and that the technical application of the theory was reliable.⁽¹⁶⁾ Interestingly, the court again avoided citing to Frye for its assertions regarding general acceptance and chose instead to cite to Gregoire and Wigmore. It would not be until State v. Wheeler⁽¹⁷⁾ in 1985 that Rhode Island would analyze Frye directly.

     Wheeler involved the admission of voice spectrography evidence intended to identify the defendant as the person who had made an anonymous phone call to the local police regarding the whereabouts of an alleged manslaughter victim. During two weeks of pre-trial voir dire, the State presented testimony from a professor of audiology at Michigan State University, a doctor of acoustic phonetics, a local professor of acoustics, and a lieutenant in the Michigan State Police regarding their respective experiences with and faith in the reliability of spectrography as a means of voice identification. The defense did not present any experts or other scientific materials to refute the State's assertions. The only argument made by the defense was that since voice spectrography was a novel science, the Frye general acceptance standard alone should govern its admissibility.⁽¹⁸⁾

     In ruling that the trial judge was correct in admitting the spectrography evidence, the state supreme court asserted that helpfulness to the trier of fact should be the key consideration in determining issues of admissibility of expert testimony.⁽¹⁹⁾ In coming to this conclusion the Wheeler court indicated that the trial judge must first, "consider whether the testimony sought is relevant.⁽²⁰⁾" Next, the trial justice must consider whether, "the subject matter is one on which expert testimony is appropriate.⁽²¹⁾" Consistent with Morgan, the Wheeler court noted that trial judges should be mindful of jurors' tendencies to give more weight to the testimony of court-ordained experts.⁽²²⁾ Along these lines, the court asserted further that determinations of experts' qualifications are addressed to the sound discretion of the trial judge and should not be disturbed absent a showing of abuse.⁽²³⁾ Finally, the court noted that when considering the helpfulness of actual testimony the trial judge must find that the testimony offered is of "substantial probative value.⁽²⁴⁾" 

     Despite its sweeping discussion of Frye and enumeration of a fairly well-developed, Daubert-like balancing test, the Wheeler court neither directly endorsed nor repudiated the Frye general acceptance standard.⁽²⁵⁾ Since Wheeler, no real consensus has emerged as to how Rhode Island courts should apply these differing standards.

Rule 702 and Quattrocchi: Is Daubert on the Way?
     One year after Wheeler, the state supreme court approved the Rhode Island Rules of Evidence including Rule 702 regarding admissibility of expert testimony. Rhode Island Rule of Evidence 702 is essentially identical to its federal counterpart and reads: 

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or 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 fact or opinion.⁽²⁶⁾

     A mere six months after Dery, the court in State v. Walters⁽³¹⁾ (again per Justice Weisberger) reasoned that the admissibility of evidence of bullet trajectories required, "sufficient indicia of reliability so that it will contribute to the search for truth as opposed to exercising its potential to mislead the jury.⁽³²⁾" More importantly, the court noted that although this case was tried prior to the adoption of Rule 702, the evidence would have been excluded under that standard as well. The court explained that according to Second Circuit in Williams, the criteria for admissibility under Federal Rule 702 included, "probativeness, materiality, and reliability of the evidence, on the one side, and any tendency to mislead, prejudice, or confuse the jury on the other. . . .⁽³³⁾" Similarly, in State v. Gomes⁽³⁴⁾ the state supreme court shied away from the general acceptance standard and instead relied upon Rule 403's probative/prejudicial test to exclude novel expert testimony as to the unreliability of eyewitness accounts. Once again the state supreme court seemed to acknowledge that Frye, while certainly valuable as a tool for evaluating novel expert testimony, was not the only means by which judges could scrutinize expert testimony.

     In 1993 the Rhode Island Supreme Court in Soares v. Vestal⁽³⁵⁾ made its first reference to Daubert by stating that while not at issue in the case then at hand, the matters addressed in Daubert concerning the application of Rule 702 would soon be addressed.⁽³⁶⁾ In the 1996 case of State v. Odell⁽³⁷⁾ the state supreme court disagreed with the defendant's assertion that Daubert superseded Dery and rejected his attempt to gain admission of exculpatory lie detector results. In doing so the court noted that Dery was consistent with Daubert in that it relied both on Frye and an analysis of the inaccuracy of polygraph testing.⁽³⁸⁾ The state's highest court would not directly confront Daubert, however, until later that same year in State v. Quattrochi.⁽³⁹⁾

     Quattrochi was an appeal from a conviction for two counts of first-degree sexual assault.⁽⁴⁰⁾ At the initial trial the state offered evidence of repressed recollections of childhood abuse to prove that the alleged instances of sexual misconduct had indeed occurred.⁽⁴¹⁾ Although the state supreme court refrained from ruling on the reliability and admissibility of repressed recollection testimony, the court cited Wheeler for the assertion that in order to perform its proper gatekeeping function a trial court, "must hold a preliminary evidentiary hearing outside the presence of the jury in order to determine whether such evidence is reliable and whether the situation is one on which expert testimony is appropriate.⁽⁴²⁾" The court went on to cite Daubert and list the four Rule 702 admissibility criteria laid out by the U.S. Supreme Court in its decision.⁽⁴³⁾ The Rhode Island court was quick, however, to remark in an accompanying footnote that their citing to Daubert did not represent an abandonment of the Frye test as analyzed in Wheeler and applied in Dery.⁽⁴⁴⁾ Once again the court left for another day the ultimate determination of what emphasis should be placed on general acceptance as set forth in Frye and Daubert.⁽⁴⁵⁾ The only clear lessons to be learned from Quattrocchi so far appear to be that in both criminal and civil cases the proper exercise of judicial gatekeeping requires judges to conduct a preliminary investigation of proffered expert testimony before it is to be submitted to the jury and that failure to conduct such an investigation constitutes reversible error.⁽⁴⁶⁾

     Ultimately, there exists no clear standard to be employed in arguing the admissibility of expert testimony in Rhode Island. Frye retains much of its vitality and is still a major if not controlling factor in determining admissibility. At the same time, the recent trend has been to give at least tacit approval to Daubert and its Federal Rules-based framework. Whether one or the other approach will gain favor in Rhode Island's courts remains to be seen.

Joiner and the Future of Judicial Gatekeeping
     While Rhode Island and other 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. Joiner⁽⁴⁷⁾ 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.⁽⁴⁸⁾ 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.⁽⁴⁹⁾ 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.⁽⁵⁰⁾" 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.⁽⁵¹⁾ 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.⁽⁵²⁾" 

     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.⁽⁵³⁾

     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.⁽⁵⁴⁾

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.⁽⁵⁵⁾

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 1796-7.
6. 25 R.I. 105 (1903).
7. See Thomas Lyons, Frye, Daubert, and Where Do We Go From Here?, 45-JAN R.I. B.J. 5, 29 (1997).
8. SeeId.
9. 88 R.I. 401, 148 A.2d 751 (1959).
10. 88 R.I. at 407 cited in Lyons, 45-JAN R.I. B.J. at 28.
11. 105 R.I. 13, 249 A.2d 48 (1969).
12. 105 R.I. at 18 cited in Lyons, 45-JAN R.I. B.J. at 29.
13. Lyons, 45-JAN R.I. B.J. at 29.
14. 109 R.I. 120, 281 A.2d 298 (1971).
15. 109 R.I. at 126 cited in Lyons, 45-JAN R.I. B.J. at 29.
16. See Lyons, 45-JAN R.I. B.J. at 29.
17. 496 A.2d 1382 (R.I. 1985)
18. See Lyons, 45-JAN R.I. B.J. at 30.
19. See 496 A.2d at 1388.
20. 496 A.2d at 1388.
21. Id.
22. See Wheeler, 496 A.2d at 1388 citing Morgan, 105 R.I. at 18.
23. See Wheeler, 496 A.2d at 1388 citing State v. Fogarty, 433 A.2d 972 (R.I. 1981); Leahey v. State, 121 R.I. 200, 397 A.2d 509 (1979).
24. See Wheeler, 496 A.2d at 1388 citing Montouri v. Narrangansett Electric Co., 418 A.2d 5, 10 (R.I. 1980).
25. See Lyons, 45-JAN R.I. B.J. at 31.
26. R.I.R.E. 702 (1986).
27. See Lyons, 45-JAN R.I. B.J. at 31 citing Advisory Committee Note to Rule 702.
28. Id. citing United States v. Williams, 583 F.2d 1194, n. 34 (2d Cir. 1978).
29. 545 A.2d 1014 (R.I. 1988).
30. See Lyons, 45-JAN R.I. B.J. at 31-2.
31. 551 A.2d 15 (R.I. 1988).
32. See Lyons, 45-JAN R.I. B.J. at 32 citing Walters, 551 A.2d at 18.
33. Id. citing United States v. Williams, 583 F.2d at 1198.
34. 604 A.2d 1249 (R.I. 1992).
35. 632 A.2d 647 (R.I. 1993).
36. Id. at 648.
37. 672 A.2d 457 (R.I. 1996).
38. See Id. at 459.
39. 681 A.2d 879.
40. Id.
41. Id. at 880.
42. Id. at 884 citing Wheeler, 496 A.2d at 1386-8.
43. Id. at 884.
44. See Id. at n. 2.
45. See Id.
46. See Id. at 884.
47. 118 S. Ct. 512 (1997).
48. See Id. at 516.
49. Id.
50. Id.
51. See Id. citing General Electric Co. v. Joiner, 865 F. Supp., 1310, 1326 (N.D. Ga. 1994).
52. General Electric Co. v. Joiner, 78 F.3d 524, 529 (11th Cir. 1996) (emphasis added).
53. Joiner, 118 S. Ct. at 517 (citations omitted).
54. Id. at 518 (citations omitted).
55. Id. at 519.