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.

Daubert Opinion States that: • the Federal Rules of Evidence superseded “general acceptance” tests for admissibility of novel scientific evidence; • the rigid “general acceptance” test, which arose from Frye v United States, 293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. 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 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 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 In literature Laboratory Quality Assurance records Published audit/ assessment reports Defense Experts re-examination reports Court Rulings Periodicals and Newspapers Critics

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