The Gatekeeper’s Toolbox: A Survey on Judicial Handling of Expert Reliability Motions (original) (raw)
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Mississippi Law Journal, 2014
Daubert and its progeny may have given judges clear substantive standards for deciding challenges to expert reliability, and great discretion to do so, but the effect of those changes has not been entirely clear. In the decade after Daubert, a few studies used empirical data to analyze the changes Daubert had made, in deciding how and why judges decide the way they do. But since those studies, there has been little analysis of the issue. This survey is intended to fill the gap, by exploring how judges actually make their reliability determinations in court. By asking state trial court judges, we can see the frequency with which such motions arise, what substantive factors are most helpful in deciding the motion, and what procedures get used. We can also measure whether, considering the state of the law, judges are comfortable with their role in deciding expert reliability, or in limiting expert testimony due to a reliability challenge. In addition to that data, this survey will also begin to empirically test an issue raised by many commentators: whether gatekeeping for expert reliability has become a type of sufficiency-of-the-evidence challenge akin to summary judgment. Asking judges questions about both motions, together, helps begin to explore that relationship on an empirical level. By measuring the actual practices of state court judges, this survey provides actual data on Daubert gatekeeping, the tools used and not used by the judiciary to that end, and the connection of reliability analyses to summary judgment.
The Stricter Standard: An Empirical Assessment of Daubert’s Effect on Civil Defendants
Catholic University Law Review, 2013
While Daubert was clear in its rejection of Frye and the substantive standard for expert admissibility, its effect on litigants has been hotly debated. Several studies since 1993 used quantitative analysis through case study analysis and judicial surveys, to measure Daubert’s effect. Yet these methodologies have reached contradictory results. In 2005, Edward Cheng and Albert Yoon offered a revolutionary new approach in their work Does Frye or Daubert Matter? A Study of Scientific Admissibility Standards. They proposed that studying removal of cases from State Court to Federal Court in the period 1990 to 2000 could quantitatively demonstrate Daubert’s true effect. It works because a litigant could, by removing a case to federal court, switch scientific admissibility standards in some circumstances. The aggregate change in behavior of all litigants can therefore be measured. We agree that removal rate offers the best hope for assessing the true effect of Daubert, and so in this study we offer our analysis of removal rates using econometric tools never before applied in this area. Our analysis reveals a startling discovery: Daubert is the stricter standard for expert admissibility. Not only does a change removal rate after Daubert clearly demonstrate this result, but it is confirmed through a “shift back” to state courts when the state also adopts Daubert and removal no longer entails a change in standards. Our results directly contrast with Cheng & Yoon’s conclusions, and so we also revisit their study and deconstruct its methodology piece-by-piece. In so doing, we will describe several errors in that study both explaining the different results but also ultimately undermining its validity. Ultimately, our research into aggregate case data from real cases demonstrates a new and conclusive finding: Daubert has been the stricter standard.
THE EFFECTS OF DAUBERT ON THE ADMISSIBILITY OF EXPERT TESTIMONY IN STATE AND FEDERAL CRIMINAL CASES
Psychology Public Policy and Law, 2002
Appellate opinions were evaluated on variables related to expert admissibility to assess the effects of Daubert v. Merrell Dow Pharmaceuticals, Inc. in criminal cases. Analysis reveals changes in appellate courts' consideration of Frye v. United States, the 4 Daubert criteria, and several Federal Rules of Evidence. The importance of Frye and the general acceptance criterion decreased over time, and the importance of the Daubert criteria increased over time. However, these changes were not consistent for all types of testimony. Overall, there is greater reliance on Daubert when determining the admissibility of a scientific expert. However, only criteria related to the Federal Rules of Evidence are reliably related to admissibility decisions. Details of appellate court application of the 4 Daubert criteria, the Federal Rules of Evidence, and other related factors are discussed.
Arkansas Law Review, 2013
The substantive standard for gatekeeping expert evidence is an issue that has an enormous impact on the judicial system, affecting tens of thousands of federal cases and many times that in state court each year and dramatically modifying substantive tort law. Yet while the issue is critical, researchers have often struggled to find a way to quantify the change in the substantive standard for gatekeeping under Daubert. In a recent study, we decided the best way to measure the effect of Daubert would be to assess the aggregate case management decisions of litigants in millions of actual cases. Our prior study used the metric of removal rates to determine whether civil defendants acted in a way demonstrating that Daubert changed the standard. The removal data showed that Daubert acts as a stricter gatekeeping standard. This Study asks an equally important question: when we measure the case management decisions of civil plaintiffs, how did Daubert change the substantive gatekeeping standard? To answer that question, we again reviewed a database of millions of real cases. In so doing, we found an identical result: Daubert is the stricter standard. By measuring the behavior of civil litigants in actual cases, we believe our analysis shows whether Daubert is a stricter gatekeeping standard, and finds that it is. If so, we can conclude the theoretical underpinnings of Daubert are unmoored from reality, meriting Supreme Court evaluation of the issue by accepting certiorari on a case revisiting expert admissibility.
Questions from the Bench and Independent Experts: A Study of the Practices of State Court Judges
University of Pittsburgh Law Review, 2012
While the Daubert case and its progeny provided detailed guidance to judges on the substantive standard for expert gatekeeping, the court spent little time explaining the procedures to use to achieve that gatekeeping review. Justice Breyer’s concurrence in Joiner offered some suggestions on what procedures to use. Since Daubert in 1993, only a few studies have explored the methods judges actually use to perform their gatekeeping task. While they consistently find that judges see their role as more active since Daubert, they are less than complete on procedures of advanced factfinding. They also rely on surveys over a decade old. This Study offers new data to expand upon and update prior research in the area. Relying on survey responses of state court judges in the Midwestern United States, this Study explores how judges use advanced factfinding tools of the Rules of Evidence in their courtrooms. Some results are consistent with prior studies, particularly the responses on frequency of use of judicial questioning from the bench and appointment of independent experts. Yet by exploring the judicial responses across a variety of characteristics, some new and interesting results arise. Finally, the study provides the only post-Daubert data on the reasons why judges are reluctant to appoint independent experts under Rule 706. Those data contrast with prior studies in the area. By measuring the actual practices of state court judges, this Study explores the methods Justice Breyer suggested judges use in their Daubert gatekeeping, what tools are used and not used by the judiciary, and whether the aspirational goals of the Rules of Evidence match reality in courtrooms today.
Law and Human Behavior, 2001
Drawing on the responses provided by a survey of state court judges (N = 400), empirical evidence is presented with respect to judges' opinions about the Daubert criteria, their utility as decision-making guidelines, the level to which judges understand their scientific meaning, and how they might apply them when evaluating the admissibility of expert evidence. Proportionate stratified random sampling was used to obtain a representative sample of state court judges. Part I of the survey was a structured telephone interview (response rate of 71%) and in Part II, respondents had an option of completing the survey by telephone or receiving a questionnaire in the mail (response rate of 81%). Survey results demonstrate that judges overwhelmingly support the “gatekeeping” role as defined by Daubert, irrespective of the admissibility standard followed in their state. However, many of the judges surveyed lacked the scientific literacy seemingly necessitated by Daubert. Judges had the most difficulty operationalizing falsifiability and error rate, with only 5% of the respondents demonstrating a clear understanding of falsifiability and only 4% demonstrating a clear understanding of error rate. Although there was little consensus about the relative importance of the guidelines, judges attributed more weight to general acceptance as an admissibility criterion. Although most judges agreed that a distinction could be made between “scientific” and “technical or otherwise specialized” knowledge, the ability to apply the Daubert guidelines appeared to have little bearing on whether specific types of expert evidence were designated as “science” or “nonscience.” Moreover, judges' “bench philosophy of science” seemed to reflect the rhetoric, rather than the substance, of Daubert. Implications of these results for the evolving relationship between science and law and the ongoing debates about Frye, Daubert, Joiner, and Kumho are discussed.
Marquette Law Review, 2012
In a recent article on science and the law, Susan Haack suggested that “we could learn something from the experiences of other nations that are equally technologically advanced, but have different…legal arrangements.” Her suggestion is both appropriate and timely, as the evidence mounts on the problems with the current judicial management of complex science. This Article starts with a simple related premise, that the proper balance of legal process and scientific expertise is not a uniquely American problem. If this is true, then we should, as Haack suggests, seek inspiration for reform in the varying methodologies of other nations. After beginning with a critical examination of the U.S. system, this Article discusses the handling of expert witnesses in several common law nations, Canada and the U.K., and in several civil law nations, Germany and Japan. After examining those systems, this Article makes recommendations as to which methodologies, currently in use and tested in those nations, offer the most promise in fixing the weaknesses exposed in our system. By reviewing the weaknesses in Daubert assessment of complex expert testimony, how other nations handle similar evidence, and how certain discrete areas of foreign law could address the weaknesses identified in the U.S. approach, this Article offers reform alternatives to assist judges in balancing the need for accuracy and reliability of the science presented in court with the need to maintain our traditions of legal process.
Battle of the Standards for Experts in Criminal Cases: Police v. Psychologists
2002
Expert testimony is an integral part of legal decision making. It informs judges and juries about a wide variety of topics. The assumption underlying its admission is that the average factfinder may lack enough knowledge about scientific or technical topics to make fully informed decisions in the absence of such testimony. Judges and juries are expected to be able to better understand these topics with the expert's assistance.