DAUBERT/KELLY

1. DAUBERT/KELLY Texas Forensic Science Seminar 2010 Prepared by: Judge Cynthia Stevens Kent John Bradley Sam Bassett

2. DAUBERT HEARINGS • RULE 702/705 HEARINGS ON ADMISSIBILITY OF EXPERT TESTIMONY • WHEN TO HEAR: • PRE-TRIAL EARLY OR LATE? • DURING TRIAL WHEN WITNESS IS AVAILABLE • DURING DAY OR AT EVENING BREAK?

3. EXPERT TESTIMONY • DAUBERT ISSUES • TRIAL JUDGE IS THE GATEKEEPER

4. JUDGES • Experts are people who know a great deal about very little, and who go along learning more and more about less and less until they know practically everything about nothing. • Lawyers, on the other hand, are people who know very little about many things, and who keep learning less and less about more and more until they know practically nothing about everything. • Judges are people who start out knowing everything about everything, but end up knowing nothing about anything, due to their constant association with experts and lawyers.

5. FRYE TEST • FRYE TEST OF “GENERAL ACCEPTANCE” IS NO LONGER THE RULE FOR DETERMINING ADMISSIBILITY OF RULE 702 EVIDENCE

6. RULE 702 • TRIAL COURT JUDGE WILL BE GATEKEEPER AND DETERMINE IF THE PROPONENT OF THE EVIDENCE DEMONSTRATES: • RELIABILITY • RELEVANCE

7. RELIABILITY • UNDERLYING THEORY IS VALID • TECHNIQUE APPLYING THE THEORY IS VALID • TECHNIQUE WAS PROPERLY APPLIED ON THE OCCASION IN QUESTION

8. FACTORS • EXTENT TO WHICH THEORY IS ACCEPTED AS VALID BY RELEVANT SCIENTIFIC COMMUNITY • QUALIFICATIONS OF EXPERT • EXISTENCE OF LITERATURE SUPPORTING OR REJECTING THEORY

9. FACTORS - CONTINUED • POTENTIAL RATE OF ERROR • AVAILABILITY OF OTHER EXPERTS TO TEST TECHNIQUE • CLARITY OF EXPLAINING THIS SCIENCE • EXPERIENCE AND SKILL OF PERSON WHO APPLIED TECHNIQUE

10. T.R.E. 701LAY OPINION TESTIONY • A NON EXPERT MAY GIVE AN OPINION IF IT IS RATIONALLY BASED ON PERSONAL KNOWLEDGE AND IT IS HELPFUL TO A CLEAR UNDERSTANDING OF THE WITNESSES TESTIMONY OR A FACT IN ISSUE (EVEN ULTIMATE ISSUE)

11. 701 TEST • Opinion must be: • Based on personal knowledge (TRE 602) • Rational connection between opinion and facts upon which it is based (nexus) • Must be helpful in understanding the testimony or determining a fact in issue (relevant) • Not based upon knowledge within scope of TRE 702 (amendment)

12. Lay Opinion • TRE 701 is a significant departure from the American common law which precluded lay witnesses from giving opinion testimony • Evolution from recent common law to TRE 701: Courts tried to draw distinctions between fact and opinion inferences or conclusions. Drafters thought this was too difficult or contrived.

13. PURPOSE OF 701 • Common law prohibition on lay opinion testimony was based partly on the assumption that facts and opinions are easily distinguishable and partly on the notion that jurors are as well equipped to draw inferences from the facts supplied by a lay witness as is the witness. • TRE 701 abandons the common law’s nominally rigid approach to lay testimony

14. LAY VS. EXPERT • The last clause of 701 precludes litigants from offering expert testimony under the guise of lay opinion testimony as a means of evading the discovery and reliability requirements associated with expert testimony. • TRE 701 now makes it clear that there is no overlap between 701 and 702.

15. Opinions must be rationally based on witness’s perception • Two elements required: • 1. Personal knowledge requirement of TRE 602 • 2. Mandate that the opinion must be one that a reasonable person could draw from the underlying facts. These requirements eliminate lay opinions based on hearsay, speculation, and irrational reasoning.

16. Helpful Requirements Test • The extent to which the testimony goes to the heart of the case. • The amount of factual matter subsumed in the opinion • The ability or inability of the witness to convey the information in the form of specific facts. • The extent to which the jury is equally well-positioned to draw the inferences from the underlying data • The need for the testimony.

17. TRE 704: Opinion on Ultimate Issue • Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact except in a criminal case where mental state is an element of the crime charged.

18. TRE 704 (Continued) • Removes the court from determining whether an opinion goes to the ultimate issue and eliminates “invades the province of the jury” and “ultimate issue” objections. • Need to do a TRE 701 or TRE 702 and TRE 403 analysis to determine admissibility. Court still permitted to exclude lay or expert opinions on issues of “fault,” “negligence” or “guilt” due to fact that opinion is not “helpful” or unnecessary per TRE 701 or TRE 702, and TRE 403

19. Opinions held inadmissible • An expert’s opinion about accused’s guilt. U.S. v. Alonso, 48 F.3d 1536 (9th Cir. 1995) • Expert may not testify as to an accused mental state or condition that constitutes an element of a crime charged or a defense to the crime charged. See U.S. v. Bennett, 161 F.3d 171 (3 Cir. 1998) • But may testify that accused suffered from mental disease or defect to the describe characteristics and effects of such disease or defect.

20. Expert Witnesses: Overview • Frye test: “General acceptance” • TRE 702: Frye + assist standard • Daubert Test: Reliability + relevance • Daubert progeny • TRE 703 Bases of expert opinion • TRE 704 Opinion on ultimate issue • TRE 705 Disclosure of data or facts • TRE 706 Court appointedexperts

21. ROLE OF THE EXPERT*The New WIGMORE • The purpose of expert testimony is to provide the trier of fact useful, relevant information. • Expert need not be a member of a learned profession. • Expert have wide range of credentials and testify regarding a tremendous variety of subjects based on their skills, training, education or experience.

22. METHOD OF QUESTIONS • Experts may be questioned about general principles that would advance the jury’s understanding of the facts in dispute. • Experts may be asked to offer their own opinions based on their firsthand investigations and to describe certain observations they have made aided by their expertise. • Experts may be asked to provide opinions based on facts specific to the case but outside their personal knowledge.

23. HOW FACTS PROVIDED • Facts can be supplied by the testimony of ordinary witnesses and known to the expert because the expert was present during their testimony. • Alternatively, the expert may be asked to state an opinion based on hypothetical questions incorporating a party’s version of the facts as testified to by these other witnesses.

24. Facts not in Evidence • Often experts rely on case-specific information that is not itself in evidence.

25. POTENTIAL DANGERS • Experts are provided exemptions from rules to which other witnesses must adhere. • Experts are not bound by the requirement that testimony be based on personal knowledge. • Experts may serve as conduits for hearsay so long as others in the same field reasonably rely on such hearsay. • Experts have been largely immune from perjury charges. BUT NOT ALWAYS.

26. Experts: Frye Test • Frye v. United States 293 F. 1013 (D.C. Cir. 1923) • “General acceptance” test • The proponent must show that the theory and scientific evidence have been generally accepted within the relevant scientific community

27. FRYE*The New Wigmore • Scrutiny of scientific as oppose to other forms of expert testimony began in 1923 with the FRYE standard of general acceptance.

28. FACTS OF FRYE • James Frye was charged with murder. He sought to introduce testimony of psychologist who had administered a systolic blood pressure test to the defendant. The “expert” wanted to testify that the test revealed that Frye was truthful when he denied committing the murders. • *Forerunner of lie detector test.

29. Frye Holdings • Court ruled that the technique was too speculative. It found that other psychologists had yet to accept the claim of verifying honesty by measuring blood pressure. • Subject of expert testimony must have gained general acceptance in the particular field to which it belongs.

30. Frye Results • General acceptance test tended to screen out evidence. In a variety of cases it resulted in excluding the following types of evidence: • Polygraph evidence • Hypnotic and drug induced testimony • Voice stress analysis • Voice spectrograms • Infrared sensing of aircraft • Blood alcohol tests • Polarized light microscopy • Psychological profiles of battered women • Post Traumatic Stress disorder as indicating rape • Ear prints

31. Expert’s Opinion of Frye • General acceptance standard never was popular with evidence scholars. • Frye failed to provide uniformity in court’s rulings on admissibility. • Frye shifted the evaluation of expert testimony reliability by the judge and jury to the general acceptance of such expert testimony within a certain field of study.

32. TRE 702: Testimony by Experts • TRE 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, or education, may testify thereto in the form of an opinion or otherwise.

33. Daubert • 1993 U.S. case Daubert v. Merrell Dow Pharm, Inc. 509 U.S. 579 (1993) held that the FRYE test did not survive the promulgation of the F.R.E. 702. • The Supreme Court emphasized that the evidentiary rules provided for a flexible inquiry into the scientific validity of principles made the basis of an expert’s opinion, but that the court must make the preliminary determination of the admissibility of such expert testimony.

34. Daubert • Trial Court under TRE 702 must make a preliminary assessment of whether the reasoning or methodology underlying the expert testimony is “scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.”

35. Daubert • Trial judges are gatekeepers of expert testimony admissibility in both criminal and civil cases. • TRE 702 and TRE 104 requires that the court must determine whether the proponent of the proffered expert testimony has demonstrated by clear and convincing evidence that the expert evidence is: • 1. Reliable • 2. Relevant

36. Daubert • To be reliable, the proponent must prove that: • The underlying scientific theory is valid, • The technique applying the theory is valid, and • The technique was properly applied on the occasion in question.

37. Daubert • In determining reliability the court may consider factors, non-exclusive list: • Extent to which the underlying scientific theory and technique are accepted as valid by the relevant scientific community, if such a community can be ascertained. • The qualifications of the testifying expert • Existence of literature supporting or rejecting the underlying scientific theory and technique

38. Daubert • In determining reliability the court may consider factors, non-exclusive list-(continuing): • Potential rate of error of the technique • The availability of other experts to test and evaluate the technique; • The clarity with which the underlying scientific theory and technique can be explained to the court. • The experience and skill of the person who applied the technique on the occasion in question.

39. Daubert • If the Court determines the evidence is RELIABLE - then the trial judge must then determine if the evidence is RELEVANT to the determination of a fact issue which if of consequence in the case. • Then the balancing test must be applied.

40. Daubert • Daubert envisioned a flexible inquiry focusing solely on the underlying principles and methodology not on the conclusions they generate. • Judges do not have to be trained in science to evaluate the reliability of a theory or technique and are capable of understanding and evaluating scientific reliability.

41. Daubert • Judges have limited formal training or practical experience in the use and evaluation of scientific methodology. • “Daubert Readiness of Texas Judiciary…” 6 Tex. Wesleyan L.R. 1 (Fall 1999) – Authored by Yours Truly

42. TRE 702 • Criteria for admissibility: • Will the specialized knowledge assist the trier of fact? • What is the evidence?(Fingerprint, DNA, toxicology, microanalysis) • What is the issue? • What is the state of the art? • Although admissible, should it be excluded under TRE 403 • Is the witness qualified: • Knowledge/ skill/ experience/ training/education

43. The Evolution of TRE 702 • The judicial response to TRE 702 and Frye. • Ex. Many states struggled and defined general acceptance prong of Frye to include such things as peer review, publication, independent validation and testing, etc…. and tried to reconcile the two competing standards. • The “reliability” standard: United States v. Downing, 753 F.2d.1 224( 3rd Cir. 1985)

44. Experts: Daubert • Daubert v. Merrell Dow, 113 S.Ct. 2786 (1993). Supreme Court held that the rules do not give any indication that “general acceptance” is a necessary precondition to the admissibility of scientific evidence. “General acceptance” is a factor but is not dispositive.

45. Experts: Daubert (Continued) • Reliability: • can be tested • peer review & publication • known or potential error rate • standards • wide spread acceptance • NEW FORMULA: QUALIFICATIONS + (RELEVANCE AND RELIABILITY) = ADMISSIBILITY

46. Split of Authority in the Federal Circuits • Some Federal Circuit Courts of Appeal limited Daubert to novel scientific expert opinion testimony others gave it broad application.

47. Daubert Progeny: Federal • Daubert II (added new criteria on remand) • Lacobelli Const. V. Monroe ( 3rd Cir. limited scope) • Berry v. Detroit ( 6th Cir. expanded view) • U.S. v. Bonds (6th Cir. admissible under Frye and Daubert) • U.S. v. Starzecpyzel ( DC NY limited view but let in because Daubert didn’t apply to other parts of the rule) • In re Paoli R.R. Yard PCB litigation( 10th Cir added new criteria) • U.S. v. Posado (5th Cir. ought to reconsider polygraph under new standard) • U.S. v. Scheffer ( Daubert/ polygraph/ MRE 707) • Compton v. Subaru (10th Cir. Daubert didn’t apply to design defect case) • U.S. v. Sinclair (limited view) • Ninth Circuit Split: Southland Sod (broad)/ Webb(limited)

48. TRE 703: Bases of Opinion Testimony by Experts • The bases of opinion testimony may include hearsay. “ If a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.” • See also TRE 803 (18) Learned Treatise • Significant departure from the common law. Under common law could not rely on inadmissible hearsay. TRE 703 permits expert to rely on hearsay.

49. TRE 703 (continued) • Third great hearsay exception

50. 703 – Bases of Opinions • Facts within knowledge • Facts presented to expert at trial • Facts presented to expert out of court, not in evidence, but reasonably relied upon by experts in the field.