Who’s Daubert?
Frye Standard
• "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 while 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." 54 App. D.C., at 47, 293 F., at
1014
Federal Rule of Evidence 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, [509 U.S. 579, 8] or education, may testify thereto in the
form of an opinion or otherwise."
• What is a Daubert Hearing?
• A term from a civil case entitled: Daubert v. Merrell Dow
Pharmaceuticals, 113 S. Ct. 2786 (1993)
• The opinion governs the admissibility of scientific evidence in
Federal court and many state and local jurisdictions which
have adopted it.
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• Daubert Opinion States that:
• • the Federal Rules of Evidence superseded “general acceptance” tests for
admissibility of novel scientific evidence;
• • the rigid “general acceptance” test, which arose from Frye v United States, 293
F2d. 1013 (D.C. Cir. 1923), is at odds with the liberal thrust of the Federal Rules of
Evidence.
• Daubert Opinion States that:
• the trial judge must still screen scientific evidence to ensure it is relevant and
reliable;
• “the focus, of course, must be solely on principles and methodology, not on the
conclusions they generate;”
• and, factors the court should consider include:
• testing and validation
• peer review
• rate of error
• “general acceptance”
Relevant
• "Relevant evidence" is defined as that which has "any tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it
would be without the evidence." Rule 401.
Reliable
• The primary locus of this obligation is Rule 702, which clearly
contemplates some degree of regulation of the subjects and theories
about which an expert may testify. "If scientific, technical, or other
specialized knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue," an expert "may testify
thereto." (Emphasis added.) The subject of an expert's testimony
must be "scientific . . . knowledge.“
• Proposed testimony must be supported by [appropriate validation] i.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
Has the theory/technique been tested?
• Ordinarily, a key question to be answered in determining whether a
theory or technique is scientific knowledge that will assist the trier of
fact will be whether it can be (and has been) tested.
Has it been subjected to peer review and
publication?
• Another pertinent consideration is whether the theory or technique
has been subjected to peer review and publication.
• But submission to the scrutiny of the scientific community is a
component of "good science," in part because it increases the
likelihood that substantive flaws in methodology will be detected.
• The Court does not make publication an absolute test of whether a
theory/technique is reliable
What is the error rate?
• Additionally, in the case of a particular scientific technique, the court
ordinarily should consider the known or potential rate of error and
the existence and maintenance of standards controlling the
technique's operation,
• This raises the question of whether it refers to the error rate of the
methodology or the individual examiner
Is it “generally accepted” within the scientific
community?
• Finally, "general acceptance" can yet have a bearing on the inquiry. A
"reliability assessment does not require, although [509 U.S. 579, 14] it
does permit, explicit identification of a relevant scientific community
and an express determination of a particular degree of acceptance
within that community."
• 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,"
Downing, 753 F.2d, at 1238, may properly be viewed with skepticism.
• To summarize: "General acceptance" is not a necessary precondition
to the admissibility of scientific evidence under the Federal Rules of
Evidence, but the Rules of Evidence - especially Rule 702 - do assign
to the trial judge the task of ensuring that an expert's testimony both
rests on a reliable foundation and is relevant to the task at hand.
Pertinent evidence based on scientifically valid principles will satisfy
those demands.
Why is this important?
• …and so it begins:
• Motion to Exclude
• Motion to Suppress
• Evidentiary Admissibility Hearing
• Daubert Challenge
• Frye Hearing
• (Your State Law) Evidentiary Challenge
First Steps
• Prosecutor must understand the relevance of the situation
• Request a continuation
• Obtain a copy of the Defense Motion
• Defense Expert?
• File motion to counter the Defense motion
Key
• Get all your info on the record
• Present Science
• Daubert Prongs
• Present YOU and your work
• Rule 702
Preparations
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Compose Power Point presentation
Gather exhibits for State to enter into evidence
Compile notes for witness stand
Budget time for reading
Admissibility Hearings
• Government has burden of proof
• Rules of Evidence do not apply
• Hearsay admissible
• Judge’s decision based on preponderance of evidence
• Don’t have to satisfy all prongs.
• YOU don’t necessarily have to testify
Preparation Assistance
• Ask for help
• Breaking down Defense Expert
• Reach out
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Others who have experience
Others who have gone against “expert”
Scientific community
SWGs
• Admissibility Resource Kits
Physical evidence cannot be wrong;
it cannot be perjured;
it cannot be wholly absent.
Only in its interpretation
can there be error.
-- Paul L. Kirk, Crime Investigation 2
(2d. John I. Thornton ed. 1974)
Admissibility
• Generally accepted
• Scientifically tested
• Peer reviewed and published
• Standards and controls
• Known or potential error rate
General Acceptance
• Forensic Comparative Science and Pattern Identification is well-grounded
in the scientific method and has been generally accepted by the forensic
science community for decades.
• Fingerprints, Firearms, Toolmarks, Footwear/Tire Impressions, Physical Match
• Literature
• Academic programs
• Grant programs
• Widespread practice in other laboratories
Testing of the
Scientific Principle
• Experiments designed and implemented using the scientific method
• Observation / Question
• Hypothesis development (& counter-hypothesis)
• Experimentation
• Results & Evaluation
• Confirmation
• Report with Peer Review
• Continuous testing and re-testing
Standards and Controls
• Training to competency
• Examine evidence following laboratory’s procedures
• Criteria for ____________ Examination
• Standardized Conclusion Scale and verbiage
• Technical review via blind reexamination by second qualified examiner
• Casework auditing
• Proficiency testing
• Testimony review
Known or Potential
Error Rate
• Error Rate of the Methodology
• Error Rates of Laboratories/Examiners
• Validation Studies
• Proficiency Tests
• History of reported False-Positives
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In literature
Laboratory Quality Assurance records
Published audit/ assessment reports
Defense Experts re-examination reports
Court Rulings
Periodicals and Newspapers
Critics
Questions
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