Criminal Justice Section
Criminal Justice Magazine
Volume 17 Issue 3
Paul C. Giannelli
Daubert v. Merrell Dow Pharmaceuticals, Inc ., 509 U.S. 579 (1993), which established the standard for admitting scientific evidence under Federal Rule 702, is perhaps the most important evidence case ever decided. In many ways, it was a difficult opinion to interpret at the time it was handed down, and the intervening years, I will argue, have transformed the opinion in significant respects.
The problems were noted from the beginning. As one commentary observed, "Astonishingly, all parties expressed satisfaction with the Daubert decision—the lawyers for the plaintiff and defense, and scientists who wrote amicus briefs." (Foster et al., Policy Forum: Science and the Toxic Tort, 261 Science 1509, 1614 (Sept. 17, 1993). See also Black & Singer, From Frye to Daubert : A New Test for Scientific Evidence, 1 Shepard’s Expert & Sci. Evid. Q. 19, 39 (July 1993) ("Both plaintiff and defense lawyers have claimed victory in Daubert."). This alone should have raised red flags.
In addition, the initial reviews of the decision questioned whether the opinion provided much guidance. One commentator stated: "The catch . . . is that no one is exactly sure what the new standard is." ( See Stewart, A New Test: Decision Creates Uncertain Future for Admissibility of Expert Testimony, 79 ABA J. 48 (Nov. 1993).)
Some later reviews weren’t that hot, either. On remand, the Ninth Circuit’s opinion contained an extended discussion of the Supreme Court’s decision under the label "Brave New World." ( Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1316 (9th Cir. 1995).) Near rebellion, the court wrote with a dose of skepticism: "Our responsibility, then, unless we badly misread the Supreme Court’s opinion, is to resolve disputes among respected, well-credentialed scientists about matters squarely within their expertise, in areas where there is not scientific consensus as to what is and what is not ‘good science,’ and occasionally to reject such expert testimony because it was not ‘derived by the scientific method.’ Mindful of our position in the hierarchy of the federal judiciary, we take a deep breath and proceed with this heady task." Professor Michael Graham, a noted evidence authority, did not pull any punches when he later wrote: "In attempting to understand the application of Daubert by the trial and appellate courts since 1993 . . . one can easily become confused and frustrated. Daubert is a very, very incomplete case if not a very, very bad decision. It has resulted in a series of conflicting and confusing if not conflicted and confused opinions." (M. Graham, Handbook of Fed. Evidence § 702.5 (3d ed. 1992) (1996 Supp).) (He is wrong, of course, but his wife asked me to cite him anyway.)
One question raised by the Daubert opinion is whether the Supreme Court intended its new reliability test to be more permissive than the Frye general acceptance test it was rejecting. There is much language in the opinion that points in this direction. For example, the Court commented: "Given the Rules’ permissive backdrop and their inclusion of a specific rule on expert testimony that does not mention ‘general acceptance,’ the assertion that the Rules somehow assimilated Frye is unconvincing. Frye made ‘general acceptance’ the exclusive test for admitting expert scientific testimony. That austere standard, absent from, and incompatible with the Federal Rules of Evidence, should not be applied in federal trials." (509 U.S. at 589.) Other passages include: "The Rules’ basic standard of relevance thus is a liberal one." "[A] rigid ‘general acceptance’ requirement would be at odds with the ‘liberal thrust’ of the Federal Rules and their ‘general approach of relaxing the traditional barriers to "opinion" testimony.’ " ( Id. at 587, 588 (quoting Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 169 (1988).)
Not surprisingly, a number of courts adopted this position. In Borawick v. Shay, 68 F.3d 597, 610 (2d Cir. 1995), the Second Circuit wrote: "[B]y loosening the strictures on scientific evidence set by Frye, Daubert reinforces the idea that there should be a presumption of admissibility of evidence." Similarly, in United States v. Bonds, 12 F.3d 540, 568 (6th Cir. 1993), the Sixth Circuit explained "that the DNA testimony easily meets the more liberal test set out by the Supreme Court in Daubert." The polygraph cases offer another example. In United States v. Posado, 57 F.3d 428, 429 (5th Cir. 1995), the Fifth Circuit stated that "the rationale underlying this circuit’s per se rule against admitting polygraph evidence did not survive Daubert."
There is, however, language in Daubert that points toward a more exacting standard: "[I]n order to qualify as ‘scientific knowledge,’ an inference or assertion must be derived by the scientific method. 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." (509 U.S. at 590.) And, then, there was the "gatekeeper" language, which also supports a more restrictive view.
General Electric Co. v. Joiner
The Supreme Court’s later cases shed some light on this point. In General Electric Co. v. Joiner, 522 U.S. 136 (1997), the Court commented that "while the Federal Rules of Evidence allow district courts to admit a somewhat broader range of scientific testimony than would have been admissible under Frye, they leave in place the ‘gatekeeper’ role of the trial judge in screening such evidence." ( Id. at 142.) The term "somewhat" in this quote is significant. Some language in Daubert suggested that a heck of a lot more evidence would be admissible under Daubert than under Frye.
Kumho Tires Co. v. Carmichael
Kumho Tires Co. v. Carmichael, 526 U.S. 137 (1999), the third case in the Daubert trilogy, did two things: (1) It extended Daubert’s reliability requirement to nonscientific testimony under Rule 702, and (2) it noted the applicability of the Daubert factors in determining reliability in this context. The second part is probably the more important aspect. Litigators quickly understood that they might be able to avoid the Daubert reliability requirement by simply relabeling their evidence from "scientific" to "technical." The Supreme Court had to shut this door or Daubert’s impact would be restricted to a narrow category of cases.
Other courts had reached the same conclusion regarding issue one (1), but had adopted an extremely lenient standard with respect to issue two (2). For example, the Hawaii Supreme Court had ruled that "because the underlying scientific principles and procedures are of proven validity/reliability, it is unnecessary to subject technical knowledge to the same type of full-scale reliability determination required for scientific knowledge. Thus, although technical knowledge, like all expert testimony, must be both relevant and reliable, its reliability may be presumed." ( State v. Fukusaku, 946 P.2d 32, 43 (Haw. 1997).) Therefore, although the court ruled that technical expert testimony must be reliable, it undercut the significance of that ruling by treating technical evidence as presumptively admissible. The court effectively shifted the burden of proof on the reliability requirement to the opposing party.
Weisgram v. Marley Co.
In Weisgram v. Marley Co., 528 U.S. 440, 445 (2000), the Supreme Court reviewed a summary judgment in a wrongful death action against a manufacturer of an allegedly defective baseboard heater. Although expert testimony was involved, the Court was not required to elaborate further on the Daubert-Kumho standard. Nevertheless, the Court did remark: "Since Daubert, moreover, parties relying on expert evidence have had notice of the exacting standards of reliability such evidence must meet." Here, again, the "liberal" standard of the Federal Rules has been replaced by "exacting" standards.
Amended Rule 702
In 2000, the following clause was added to Rule 702, conditioning admissibility on a showing that: "(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." In Rudd v. General Motors Corp., 127 F. Supp. 2d 1330, 1336–37 (M.D. Ala. 2001), the court wrote that "the new Rule 702 appears to require a trial judge to make an evaluation that delves more into the facts than was recommended in Daubert, including as the rule does an inquiry into the sufficiency of the testimony’s basis ("the testimony is based upon sufficient facts or data") and an inquiry into the application of a methodology to the facts ("the witness has applied the principles and methods reliably to the facts of the case"). Neither of these two latter questions that are now mandatory under the new rule . . . were expressly part of the former admissibility analysis under Daubert." Once, again, more requirements (obstacles?) to admissibility are erected.
Thus, it should come as no surprise that handwriting, fingerprint, firearms identification, and hair comparison testimony are being challenged. As one district court noted, the Supreme Court in Daubert-Kumho "is plainly inviting a reexamination even of ‘generally accepted’ venerable, technical fields." ( United States v. Hines, 55 F. Supp. 2d 62, 67 (D. Mass. 1999).)
The metamorphosis of Daubert has caught some criminal litigators and forensic scientists off guard. Perhaps this is because the Daubert trilogy has involved civil litigation. But, at the end of the day, the Court had upheld the exclusion of the proffered expert testimony in all three cases. (In Daubert, the Court remanded. However, on remand, the court of appeals again excluded the evidence, and the Supreme Court denied certiorari. (43 F.3d 1311 (9th Cir.), cert. denied, 156 U.S. 869 (1995).) Judges who are required to apply exacting standards in civil cases will tend to apply those same standards in criminal cases because the applicable provision, Rule 702, is the same in both civil and criminal litigation.
Paul C. Giannelli is the Albert J. Weatherhead III & Richard W. Weatherhead Professor of Law at Case Western Reserve University in Cleveland, Ohio. He is coauthor of Scientific Evidence (Lexis 3d ed. 1999.) He is also a contributing editor to Criminal Justice magazine and a member of its editorial board.