First Annual Judicial Symposium JUSTICE AND SCIENCE Course Materials July 2005 All views, opinions and conclusions expressed are those of the authors and/or speakers, and do not necessarily reflect the opinion and/or policy of NFJE and its leadership. © 2005 by NFJE 150 North Michigan Avenue, Suite 310 Chicago, Illinois 60601 All rights reserved. No part of this product may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying and recording, or by any information storage or retrieval system, without the express written permission of NFJE unless such copying is expressly permitted by federal copyright law. Produced in the United States of America Course Materials Table of Contents The Daubert Trilogy in the States ...................................................................................................1 David E. Bernstein and Jeffrey D. Jackson Expert Information and Expert Evidence ................................................................................... 19 A Preliminary Taxonomy Jennifer L. Mnookin and Samuel R. Gross Does Frye or Daubert Matter? ..................................................................................................... 61 A Study of Scientific Admissibility Standards Edward K. Cheng and Albert H. Yoon The Daubert Trilogy in the States David E. Bernstein Professor George Mason University School of Law Jeffrey D. Jackson Visiting Assistant Professor of Law Washburn Law School DAVID E. BERNSTEIN is a Professor at the George Mason University School of Law in Arlington, Virginia, where he has been teaching since 1995. Professor Bernstein is a graduate of the Yale Law School, where he was senior editor of the Yale Law Journal and a John M. Olin Fellow in Law, Economics, and Public Policy. Professor Bernstein’s recent law review articles have appeared in the Yale Law Journal, Michigan Law Review, Texas Law Review, Georgetown Law Journal, Vanderbilt Law Review, and California Law Review, among others. He is the author of You Can’t Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws (Cato Institute 2003). Professor Bernstein is also the co-author of The New Wigmore: Expert Evidence (Aspen Law and Business 2003), author of Only One Place of Redress: African-Americans, Labor Regulations, and the Courts from Reconstruction to the New Deal (Duke 2001) and co-editor of Phantom Risk: Scientific Inference and the Law (MIT 1993). Professor Ber- nstein teaches Torts, Products Liability, Evidence, Constitutional Law, and Scientific and Expert Evidence. JEFFREY D. JACKSON comes to Washburn Law from the Kansas Supreme Court where he was staff attorney for Death Penalty and Constitutional issues. Prior to that, he was a law clerk for the Honorable Mary Beck Bris- coe in the U.S. Court of Appeals for the Tenth Circuit, law clerk to The Honorable Justice Robert E. Davis at the Kansas Supreme Court, an associ- ate at Bennett & Dillon L.L.P., in Topeka and staff attorney for the Kansas Court of Appeals. Jackson received his B.B.A. in economics from Wash- burn University in 1989, his J.D. from Washburn Law in 1992 and his LL.M. in Constitutional Law at Georgetown University Law Center in 2003. At Washburn Law, Jackson was assistant editor for the Washburn Law Journal. Jackson is admitted to practice in Kansas, Missouri, U.S. District Court for the District of Kansas, U.S. District Court for the Western District of Mis- souri and the U.S. Court of Appeals for the Tenth Circuit. He is a member of the Kansas Judicial Council Death Penalty Advisory Committee. The Daubert Trilogy in the States Table of Contents I. States Adopting the Daubert Trilogy in its Entirety ..................................................................... 7 II. States Adopting Daubert and Kumho Tire But Not Joiner ..........................................................8 III. States Adopting Daubert But Not Kumho Tire or Joiner .............................................................8 IV. States Holding That Daubert is Instructive .................................................................................... 9 V. Non-Frye States That Reject Daubert ............................................................................................ 10 Footnotes ........................................................................................................................................................... 13 The Daubert Trilogy in the States ❖ Bernstein, Jackson ❖ 3 The Daubert Trilogy in the States Abstract: The Daubert trilogy of Supreme Court cases—Daubert, Joiner, and Kumho Tire, codified in Federal Rule of Evidence 702—has established new rules the admissibility such evidence in federal court. The situation in state courts is far more unsettled. First, a significant number of courts have continued to adhere to the tests they used before Daubert, either Frye general acceptance test or some other test. Even among those states which have adopted Daubert, its application has been decid- edly nonuniform. Only a few states have adopted the Daubert trilogy in its entirety. Some states have adopted Daubert, but not yet adopted Kumho Tire or Joiner. Others have adopted Daubert and Kumho Tire, but not Joiner, or have adopted only part of Joiner. Still other states view the Daubert trilogy as only instructive or consistent with their own traditional state tests. This article analyzes the degree to which the holdings of the Daubert trilogy have been adopted by state courts. This analysis shows that there is a rich diversity of tests within the states, so much so that, contrary to the prevailing impression, the Daubert trilogy is not yet the majority standard even among the states that have rejected Frye. Citation: David E. Bernstein and Jeffrey D. Jackson, The Daubert Trilogy in the States, 44 Juri- metrics J. ___–___ (2004). In 1993, the Supreme Court decided what became the first in the “Daubert tril- ogy” of cases concerning the admissibility of expert testimony, Daubert v. Mer- 1 rell Dow Pharmaceuticals, Inc. In Daubert, the Court determined that Federal Rule of Evidence 702 mandated that scientific evidence be subject to a reli- ability test, rather than the common law “general acceptance test” set forth 2 in Frye v. United States. In place of Frye, the Court imposed upon judges the “gatekeeping” responsibility of assessing whether “the reasoning or methodol- ogy underlying the testimony is scientifically valid and…whether that reason- 3 ing or methodology properly can be applied to the facts at issue.” The Court set forth several general factors that might be considered in reaching a decision on whether to admit scientific expert evidence, including: (1) whether the theory or technique can be or has been tested; (2) whether the theory or technique has been subjected to peer review and publication, as such review “increases the likelihood that substantive flaws in the methodology will be detected”; (3) in the case of the particular technique, the known or potential rate of error; and (4) whether the theory or technique enjoys general acceptance within the relevant 4 scientific community. Daubert changed the nature of the admissibility determination by judges from Frye’s def- erence to the views of scientists in a relevant field to an independent evaluation of the proffered 5 6 evidence. Courts and commentators disagreed, however, regarding whether this “revolution” in how judges were to go about deciding whether to admit scientific evidence would lead to more permissive or more restrictive admissibility rulings. Both sides of the debate could point to evidence favoring their position. Those who believed that Daubert was relatively permissive noted that the Frye general acceptance test had The Daubert Trilogy in the States ❖ Bernstein, Jackson ❖ 5 been considered by many an inflexible and unduly conservative test that excluded innovative 7 scientific techniques. Daubert, by promising flexibility and case-by-case analysis of admissi- bility, seemed to liberalize admissibility rules by allowing courts to reconsider the validity of polygraph tests and other forensic techniques that had been excluded on general acceptance grounds but which some scientists believed were reliable. On the other hand, Daubert also gave courts the opportunity to reconsider the admissibility of common forensic techniques, such as handwriting analysis, that were generally accepted among forensic scientists, but had 8 never been proven reliable. Similarly, before Daubert a string of recent federal circuit court opinions had applied 9 Frye to toxic tort evidence and had interpreted Frye rather stringently. Because plaintiffs’ prof- fered evidence in toxic tort cases is often sufficiently novel that it will not yet have achieved general acceptance, the Frye test, especially if applied to an expert’s conclusions, threatened to severely impede the ability of toxic tort plaintiffs to present admissible evidence. Daubert, by emphasizing the flexibility of the admissibility determination and by admonishing courts that they must focus on an expert’s methodology, not his conclusions, appeared to some to be a more 10 permissive alternative to Frye. The death of Frye seemed an especially serious blow to advocates of strict scrutiny of scientific evidence in toxic tort cases because their most well-known cham- pion, Peter Huber, was a strong advocate of Frye.11 However, Huber and other advocates of strict scrutiny expressed satisfaction with 12 Daubert. Despite the recent precedents noted above, Frye had