Standard of Review Daubert Trilogy

The Daubert standard is a legal precedent set in 1993 by the Supreme Court of the United States regarding the admissibility of expert witnesses' testimony during legal proceedings (Daubert v. Merrell Dow Pharmaceuticals, 509 US 579 (1993)).

A Daubert motion is a motion, raised before or during trial, to exclude the presentation of unqualified evidence to the jury. This is usually used to exclude the testimony of an expert witness who has no such expertise or who used questionable methods to obtain the information.

In Daubert, the Supreme Court held that federal trial judges are the 'gatekeepers' of scientific evidence. Under the Daubert standard, the trial judges must evaluate proffered expert witnesses to determine whether their testimony is both 'relevant' and 'reliable', a two-pronged test of admissibility.

The relevancy prong. The relevancy of a testimony refers to whether or not the expert's evidence 'fits' the facts of the case. For example, you may invite an astronomer to tell the jury if it had been a full moon on the night of a crime. However, the astronomer would not be allowed to testify if the fact that the moon was full was not relevant to the issue at hand in the trial.

The reliability prong. The Supreme Court explained that in order for expert testimony to be considered reliable, the expert must have derived his or her conclusions from the scientific method (Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 US 579, 589) The Court offered 'general observations' of whether proffered evidence was based on the scientific method, although the list was not intended to be used as an exacting checklist:

A third prong, empirical testing, is also taken into account. Empirical testing:

1. The theory or technique must be falsifiable, refutable and testable.

2. Subjected to peer review and publication.

3. Known or potential error rate and the existence and maintenance of standards concerning its operation.

4. Whether the theory and technique is generally accepted by a relevant scientific community.

Although trial judges have always had the authority to exclude inappropriate testimony, previous to Daubert, trial courts often preferred to let juries hear evidence proffered by both sides.

Once certain evidence has been excluded by a Daubert motion because it fails to meet the relevancy and reliability standard, it will likely be challenged when introduced again in another trial. Even though a Daubert motion is not binding to other courts of law, if something has been found not trustworthy, other judges may choose to follow that precedent.

The Daubert decision was heralded by many observers as one of the most important Supreme Court decisions of the last century imparting crucial legal reforms to reduce the volume of what has disparagingly been labelled junk science in the court room.

Many of these individuals were convinced by Peter Huber's 1991 book Galileo's Revenge: Junk Science in the Courtroom, which argued that numerous product liability and toxic tort verdicts were unjustly made on the basis of junk science. According to Huber, junk science in the courts threatened not only justice but the workings of the American economy. This threat rested on two premises:

1. Juries are not competent to recognize flaws in scientific testimony, especially toxic tort or product liability suits where decisions on causation rested on complex scientific issues and

2. The result of junk science is the issuance of awards that deter manufacturers from introducing worthwhile products into the marketplace out of fear of unwarranted tort liability for injuries their products have not caused.

By requiring experts to provide relevant opinions grounded in reliable methodology, proponents of Daubert were satisfied that these standards would result in a fair and rational resolution of the scientific and technological issues which lie at the heart of product liability adjudication.

To summarize, five cardinal points Daubert asks from every new technique to be admissible in court are:

1. Has the technique been tested in actual field conditions (and not just in a laboratory) (For example, fingerprinting has been extensively tested and verified not only in laboratory conditions, but even in actual criminal cases. So it is admissible. Polygraphy, on the other hand, has been well tested in laboratories but not so well tested in field conditions.)?

2. Has the technique been subject to peer review and publication?

3. What is the known or potential rate of error? Is it zero, or low enough to be close to zero?

4. Do standards exist for the control of the technique's operation?

5. Has the technique been generally accepted within the relevant scientific community?

The Supreme Court explicitly cautioned that the Daubert list should not be regarded by judges as ' a definitive checklist or test ' . .'. Yet in practice, many judges regularly exclude scientific evidence when they, assuming the role of 'amateur scientist ' , determine it to be lacking on even a single Daubert point, instead of assessing the totality of such evidence.

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