1. Experts vs. Lay Witnesses By Kevin L. Miller Winston-Salem, NC Can I Get a Witness: Evidentiary Issues in Family Law 2013 Family Law Section Annual Meeting Friday May 3, 2013

2. EXPERTS VS. LAY WITNESSES Lay and Expert Testimony, A Modest Proposal, and Presumptions within Family Law INTRODUCTION I.WHY EVIDENTIARY CONSIDERATIONS MATTER IN BENCH TRIALS II.LAY WITNESSES III.EXPERT WITNESSES IV.A MODEST PROPOSAL V.PRESUMPTIONS IN FAMILY LAW APPENDIX

3. North Carolina Rule of Evidence Rule 104 THE JUDGE DETERMINES ADMISSIBILITY: HAS THE FOUNDATION BEEN LAID? Rule 104 Preliminary Questions a)Questions of admissibility generally. – Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges. SEE ALSO RULE 1101

4. ADMISSIBILITY FOUNDATION FOR TESTIMONIAL EVIDENCE: THREE “FOOTINGS” or “PILLARS” Competence Relevance Reliability / Knowledge

5. North Carolina Rule of Evidence Rule 601 THE “LAY” COMPETENCE PILLAR Rule 601 General Rule of competency; Disqualification of Witness a)General rule. – Every person is competent to be a witness except as otherwise provided in these rules. a)Disqualification of witness in general. – A person is disqualified to testify as a witness when the court determines that the person is (1) incapable of expressing himself or herself concerning the matter as to be understood, either directly or through interpretation by one who can understand him or her, or (2) incapable of understanding the duty of a witness to tell the truth.

7. North Carolina Rule of Evidence Rule 602 THE “LAY” KNOWLEDGE/RELIABILITY PILLAR Rule 602 Lack of Personal Knowledge A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness himself. This rule is subject to the provisions of Rule 703, relating to opinion testimony by expert witnesses.

8. North Carolina Rule of Evidence Rule 701 (1) KNOWLEDGE-BASED, (2) HELPFUL LAY OPINIONS ADMISSIBLE Rule 701 Opinions and Lay Witness If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.

9. North Carolina Rule of Evidence Rule 401 and 402 THE RELEVANCY PILLAR Rule 401 Definition of Relevant Evidence "Relevant evidence" means evidence having 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 402 Relevant Evidence Generally Admissible; irrelevant evidence inadmissible All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by the Constitution of North Carolina, by Act of Congress, by Act of the General Assembly or by these rules. Evidence which is not relevant is not admissible.

10. LAY WITNESS TESTIMONY ADMISSIBILITY FOUNDATION LOW THRESHOLD OF COMPTENCEY: “WEAK” COMPETENCY PILLAR LOW THRESHOLD OF KNOWLEDGE/RELIABILTY: “WEAK” RELIABILITY PILLAR LOW THRESHOLD OF RELEVANCY: “WEAK” RELEVANCY PILLER “VIGOROUS CROSS EXAMINATION, PRESENTATION OF CONTRARY EVIDENCE, AND CAREFUL INSTRUCTIONS ON THE BURDEN OF PROOF ARE THE TRADITIONAL AND APPROPRIATE MEANS OF ATTACKING SHAKY BUT ADMISSIBLE EVIDENCE.” DAUBERT, 509 U.S. 579,596 (1993)

11. ADMISSIBILITY FOUNDATION FOR TESTIMONIAL EVIDENCE: THREE “FOOTINGS” or “PILLARS” Competence Relevance Reliability / Knowledge

12. North Carolina Rule of Evidence Rule 702(a) Prior to October, 2011 Amendment NC’S “EXPERT” WITNESS COMPETENCY AND KNOWLEDGE/RELIABILITY PILLARS Rule 702(a) Testimony By Experts—PRIOR TO OCTOBER 1, 2011 (a) 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.

13. Federal Rule of Evidence Rule 702 Testimony by Expert Witness FRE’S “EXPERT” WITNESS COMPETENCY AND KNOWLEDGE/RELIABILITY PILLARS FRE 702 Testimony by Expert Witnesses [Prior to December 1, 2011] If scientific, technical, 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, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

14. Federal Rule of Evidence Rule 702 Testimony by Expert Witness FRE’S “EXPERT” WITNESS COMPETENCY AND KNOWLEDGE/RELIABILITY PILLARS FRE 702 Testimony by Expert Witnesses [Stylist Changes, Effective December 1, 2011] A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: a)the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; b)the testimony is based on sufficient facts or data; c)the testimony is the product of reliable principles and methods; and d) the expert has reliably applied the principles and methods to the facts of the case.

15. North Carolina Rule of Evidence Rule 702(a) After October, 2011 Amendment NC’S “EXPERT” WITNESS COMPETENCY AND KNOWLEDGE/RELIABILITY PILLARS FRE 702 Testimony by Expert Witnesses [Prior to December 1,2011] 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, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. NC Rule 702(a) Testimony By Experts – Post October 1, 2011 (a) 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, if all of the following apply: 1) The testimony is based upon sufficient facts or data. 2)The testimony is the product of reliable principles and methods. 3)The witness has applied the principles and methods reliably to the facts of the case.

16. NORTH CAROLINA IS A DAUBERT JURISDICTION RE RULE 702(a) AMENDED AS PART OF “TORT REFORM PACKAGE” ALYSON GRINE OF UNC SOG—AUGUST 17, 2011-“[T]he legislation … impose[s] restrictions on the admissibility of expert testimony. The subparts are lifted verbatim from Federal Rule of Evidence 702 as amended in 2000, which was intended to codify the criteria for the admissibility of expert testimony established in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).” STATE V. HUDSON (FEBRUARY 7, 2012), FOOTNOTE 1—“IN AMENDING RULE 702(A), LEGISLATURE HAS ADOPTED DAUBERT ADMISSIBILITY STANDARD.” NORTH CAROLINA EVIDENCE COURTROOM MANUAL (2012 EDITION): “For Actions Commenced After October 1,2011, Rule 702(a) has been rewritten to mirror F.R.E. 702 at the time the statute was enacted. This indicates a clear legislative intent to abandon the Howerton standard announced by our Supreme Court in favor of the Daubert standard adopted by the United States Supreme Court as codified in F.R.E. 702.”

17. NORTH CAROLINA IS A DAUBERT JURISDICTION ( NORTH CAROLINA IS A DAUBERT JURISDICTION ( cont’d) BRANDIS & BROUN ON NORTH CAROLINA EVIDENCE: ”The entire question of how the North Carolina courts are to treat scientific evidence was thrown into doubt in 2011 when the General Assembly amended Evidence Rule 702 as part of “An Act to Provide Tort Reform for North Carolina Citizens and Businesses,” effective for actions commenced on or after October 1, 2011. The amendment adopted verbatim the language of a 2000 amendment to Federal Rule 702. …The Federal Rules of Evidence Advisory Committee Note to its 2000 amendment of Rule 702 makes it clear that the intent of the amendment was to incorporate the principles set forth in Daubert and its progeny into the Federal Rules of Evidence. The amendment to the North Carolina rule could have the same effect, thus dramatically changing the approach announced in Howerton.” GORDON WIDENHOUSE, JR.—APRIL, 2012- Changes to Rule 702(a): Has North Carolina codified Daubert and Does It Matter? STATE V. ROYAL—“HEARD APRIL 24, 2013”--FORTHCOMING DECISION

18. DAUBERT’S BIG REQUIREMENTS EXPERT’s TESTIMONY MUST BE RELIABLE TO BE ADMISSIBLE IN ORDER TO BE RELIABLE, EXPERT’S TESTIMONY MUST BE BASED ON KNOWLEDGE – NOT ON THE EXPERT’S IPSE DIXIT [I.E., BARE ASSERTION] THE JUDGE MUST BE A VIGILANT “GATEKEEPER”

22. THE DAUBERT ADMISSIBILITY STANDARD: “A BRAVE NEW WORLD” JUDGE BUST BE A VIGILANT “GATEKEEPER” IN DETERMINING THE PRELIMINARY QUESTIONS CONCERNING: THE EXPERT’S COMPETENCE Does his knowledge, skill, experience, training or education qualify him to render the proffered testimony? “Not all attorneys are qualified to render patent opinions” THE RELIABILITY OF HIS TESTIMONY Is it based on “scientific knowledge”? Are his conclusions “Derived by the Scientific Method”? Does his work product amount to “Good Science”? THE FIT OF HIS TESTIMONY Is the testimony Relevant – “Does it logically advance a material aspect of the proposing party’s case”?

23. SEVENTH INNING STRETCH

27. Blind Leading The Blind Mathew 15:14 Flemish (Netherlands/Belgium) 1525-1569

28. Determining the Reliability of Scientific Testimony Is the Expert’s Testimony Based on SCIENTIFIC KNOWLEDGE? Scientific Knowledge (“SK”) is AQUIRED in a Specific, Systematic Way SK is aquired by the “SCIENTIFIC METHOD” The SCIENTIFIC METHOD is a method of DEDUCTIVE reasoning by EXPERIMENTATION Simple illustration of “DEDUCTIVE” vs. “Inductive” 1000 white swans vs. 1 black swan Thus – Rule 702(a)’s Requirement of Sufficient Facts and Data Simple illustration of Knowledge acquired via EXPERIMENTATION The “observed phenomenon”: Your Car Will Not Start Known Scientific “Fact” – Rule 702(a)’s “Relible Principle” – A bad battery can cause a car to not start Hypothesis – “My Battery is Bad” Experimentation – Testing the H – Test the Battery with a battery/volt meter to determine the “power” or “current” If the meter shows plenty of power – then the hypothesis is REJECTED or PROVEN FALSE

29. BASIC SCIENTIFIC CONCEPTS “RELIABILITY”, “VALIDITY,” “FALSIFIABILITY,” “ERROR RATE” section III.C. and appendix No. 12  “RELIABILITY” – A mesaure of the internal consistency and stability of the measuring device Repeated Tests of the Battery Kevin’s Weight  “VALIDITY” – An indication of whether the measuring device is measuring what it claims to measure  “FALSIFIABILITY” – Can the hypothesis be tested and proven false?  “KNOWN ERROR RATE” – the rate at which the measuring device is wrong TYPE 1 ERRORS – False Positives – The rejection of a null Hypothesis TYPE 2 ERRORS – Misses – Failure to reject a null hypothesis EXAMPLE OF NULL HYPOTHESIS – “This drug has no effect on cancer” TYPE 1 ERROR – False Positive – The experimentation suggests that the drug HAS AN EFFECT on cancer – when, in fact, it does not TYPE II ERROR – A Miss – The experimentation does not demonstrate that the drug has an effect on cancer – when, in fact, it does have an effect

30. The Daubert Factors applicable to purported SCIENTIFIC KNOWLEDGE The DEUS EX MACHINA for determining whether the testimony is the “Product of Reliable [Scientific] Principles and Methods” 1.IS THE EVIDENCE BASED ON A TESTABLE THEORY OR TECHNIQUE; 1.HAS THE THEORY OR TECHNIQUE BEEN SUBJECTED TO PEER REVIEW AND PUBLICATION; 1.DOES THE TECHNIQUE HAVE A KNOWN ERROR RATE; 1.ARE THERE STANDARDS CONTROLLING OPERATION OF THE TECHNIQUE; AND 1.TO WHAT DEGREE IS THE THEORY OR TECHNIQUE GENERALLY ACCEPTED BY THE SCIENTIFIC COMMUNITY? DAUBERT, 509 U.S. 579, at 593-94.

31. Daubert’s ADMISSIBILITY STANDARD applies to ALL Expert Testimony KUMHO TIRE CO., LTD. V. CARMICHAEL, 526 U.S. 137 (1999) Judge must “GATEKEEP” with respect to any Expert Testimony To be admissible, ALL Expert Testimony must be “RELIABLE” From a QUALIFIED WITNESS Based on KNOWLEDGE Acquired from the Application of Reliable Principles and Methods To Sufficient Facts and Data FIT TO THE FACTS OF THE PARTICULAR CASE Note: Daubert’s “Factors” are neither exhaustive nor necessarily applicable in determining the reliability of all expert knowledge

32. Application of Daubert to Psychological Testimony PSYCHOLOGISTS ARE SOCIAL SCIENTISTS AND TESTIFY AS EXPERTS THEIR TESTIMONY MUST BE RELIABLE, BASED ON KNOWLEDGE, AND RELEVANT TO BE ADMISSIBLE GROVE/BARDEN, “PROTECTING THE INTEGRITY OF THE LEGAL SYSTEM: KUMHO TIRE “HAD ENORMOUS IMPORTANCE FOR THE REGULATION OF THE TESTIMONY OF MENTAL HEALTH PROFESSIONALS” RORSCHACH TEST FAILED DAUBERT “RELIABILITY” STANDARD PTSD/MPD DIAGNOSIS FAILED DAUBERT “RELIABILITY” STANDARD RICHARDSON, GINSBURG, GATOWSKI & DOBBIN (1995): BETWEEN 1993 AND 1995, “17% OF THE FEDERAL CASES MENTIONING DAUBERT HAVE EXAMINED SOCIAL SCIENCE RESEARCH.”

33. Application of Daubert Child Custody Evaluations KRAUSS/SALES, THE PROBLEM OF “HELPFULNESS” IN APPLYING DAUBERT TO EXPERT TESTIMONY: CHILD CUSTODY DETERMINATIONS IN FAMILY LAW AS AN EXEMPLAR: “BECAUSE THE TESTIMONY IN CHILD CUSTODY CASES IS REALLY A MIXTURE OF SCIENCE AND CLINICAL OPINION (I.E., HYBRID TESTIMONY), THERE CAN BE NO QUESTION THAT DAUBERT’S AND JOINER’S TEACHINGS APPLY TO IT.” GOULD/MARTINDALE, MENTAL HEALTH PROFESSIONALS INVOLVED IN CHILD CUSTODY LITIGATION: FROM COURT-APPOINTED EVALUATORS TO RETAINED EXPERTS: “OUR FOCUS IS ON THE USE OF SCIENTIFIC METHODS IN CHILD CUSTODY ASSESSMENT REGARDLESS OF THE EVALUATOR’S PROFESSIONAL DISCIPLINE. ALL HARD AND SOCIAL SCIENCES EMPLOY THE SCIENTIFIC METHOD TO PRODUCE KNOWLEDGE. IN SHORT, “SCIENCE” SHOUD MEAN THE SAME THING TO A PHYSICIST, AN EMBRYOLOGIST, A PSYCHOLOGIST, OR A DEMOGRAPHER.” (APPENDIX NO. 16, P. 25)

34. Is BIOC “Opinion” Testimony based on KNOWLEDGE? The determination standard for Child Custody Decisions is “BIOC” “BIOC” is undefined NC identifies no factors (other than safety factors) in determining “BIOC” “The strength of the BIOC standard lies in its use of unweighed, unprioritized factors that are indeterminate (mnookin, 1975). Neither among mental health professionals nor the judiciary has consensus been achieved concerning what factors, viewed collectively, define the BIOC standard (Gould, 1999; Gould & Martindale, 2009).” “Indeterminate”: “Not definitely or precisely determined or fixed; not known in advnace’ not leading to a definite end or result.” How does one apply the “Scientific Method” and acquire “Knowledge” with respect to “Indeterminate” Factors? See Christopher Barbrack, Using Cross-Examination to Challenge Child Custody Experts: A Step Along the Way to A More Productive Use of Psychologists in Resolving Child Custody Disputes (Appendix No. 13)

35. BEWARE: PUBLICATION IN PSYCHOLOGY JOURNALS DOES NOT NECESSARILY IMPLY RIGOROUS PEER REVIEW “PREACHING TO THE CHOIR” Grove/Barden: “…Courts evaluating peer review for daubert purposes need to understand that peer review may not always function in its normal manner (i.e., to detect and correct error). Courts may need to explore the knowledge, training, experience, and judgment of editors and peer reviewers, rather than simply assume that “peer review” is a simple, nonevaluative fact determination.” Gould/Martindale: “Professional journals and credible associations that sponsor conferences addressing child custody assessment continue to give space (in the case of journals) and airtime (in the case of conferences) to those who encourage the use of intuition, hunches, and scientifically unsound assessment techniques… We call attention to the lax manner with which some journals and organizations continue to support presentation of assessment ideas that have little, if any, scientific integrity yet are promoted by their authors as tools to be used within a system that demands reliable procedures and trustworthy results.” (appendix no. 16, p. 21).

36. BEWARE: MANY PSYCHOLOGICAL TESTS AND INVENTORIES MAY NOT MEET THE DAUBERT STANDARD, AND FEW, IF ANY, ARE PREDICTIVE OF OUTCOMES BEARING ON THE BIOC SEE BOW, GOULD, FLENS, GREENHUT, TESTING IN CHILD CUSTODY EVALUATIONS—SELECTION, USAGE, AND DAUBERT ADMISSIBILITY: A SURVEY OF PSYCHOLOGISTS