Legal Methods Flashcards
I. How do courts evaluate social science experts?
Before Frye test:
a. 17th Century British courts
i. Allowed physicians and engineers
1) How did patient die or bridge collapse
ii. Marketplace test
1) If people paid money for these opinions on the open market, their opinion must be valid
iii. Downsides of marketplace test
1) Courtroom is the market for some experts
a) Ie fingerprints
2) Market doesn’t always distinguish between experts and non-experts
Astronomers and astrologers
Frye Test
General acceptance test
Old Federal Rules of Evidence 702 (1975)
flexible reliability standard
Daubert case
Holding: FRE 702 did not include Frye test
SCOTUS rules that expert’s testimony must be rooted in “Scientific method”–>General Observations Test
Daubert Standard
the factors that may be considered in determining whether the methodology is valid are:
(TEPSA)
(1) Testable
(2) error rate peer reviewed
(3) peer reviewed
(4) standards
(5) acceptance
Daubert Trilogy
Daubert
Joiner
Kumho
GE v. Joiner
1) Judge may exclude expert testimony when there are gaps between the evidence relied on by an expert and that person’s conclusion
2) abuse-of-discretion standard of review is the proper standard for appellate courts to use in reviewing a trial court’s decision of whether it should admit expert testimony
Kumho Tire
Judge’s gatekeeping function identified in Daubert applies to all expert testimony, including that which is non-scientific
New Federal Rule of Evidence 702
Trilogy of Daubert, Joiner, Kumho
Expert by knowledge, skill, experience, training, or education (SKEET) may testify if:
(a) helps trier of fact understand or determine fact
(b) based on facts or data
(c) product of reliable principles and methods
(d) application of principles and methods to the facts of the case
Frye v. Daubert
a. Frye= General acceptance
Daubert= valid scientific foundation
www.Dauberttracker.com
a. Annual subscription
b. Tracks all types of expert testimony and citations of Daubert
c. Good way to check out “experts”
Effect of Daubert
a. Has increased the exclusion of expert evidence, mostly plaintiffs experts in civil cases
b. Has generally admitted government forensic evidence in criminal cases, despite questionable validity
Problems in expert testimony
a. Biased experts (Hired Guns)
i. Abandon objectivity and become advocates for the side that hired them
b. Conflicting Experts (Battle of the Experts)
i. Jury has to decide between 2 experts who disagree
Proposed solutions to expert witness problems
a. Court appointed experts
b. Expert juries (“science panels”)
c. Professional self-regulation
How courts obtain scientific research
a. Expert testimony or Amicus briefs
b. Judges do own research (controversial)
