Appellate Courts Must Conduct Independent Research of Daubert Issues to Discover "Junk Science."

Article excerpt

The scene is a courtroom in the State of Denial. The defendant, charged with murder, testifies to his innocence, claiming he was across town at the time of the crime. There being no eyewitnesses and no physical evidence linking the defendant to the victim, the State puts forth its scientific expert. Dr. Crackpot is an "auralist." Simply by being in the same room with someone, the doctor claims to read the person's "aura" and determine where he was on a specific date. The defense objects, arguing that this science is not valid, but the State has an article from Weird Science Magazine detailing the theories, and the defense has nothing to refute it. The trial judge admits the evidence, deciding that any doubts about it go to the weight of the evidence rather than its admissibility. Dr. Crackpot testifies that the defendant was at the crime scene at the time of the murder, and the jury convicts.

The defendant appeals, arguing that "auralism" is junk science. But the parties offer no additional authority, believing they are limited by what was presented at trial. The appellate court, reviewing for an abuse of discretion, finds no error, since there is nothing in the record to indicate that the science is invalid.

Yet the science is junk. There is no such thing as an "auralist." Nobody can credibly "read" a person's "aura" and determine where they were on any given day. The scientific journals are replete with articles condemning the science, and Dr. Crackpot himself has been proven to be a fraud. Nevertheless, the defendant goes to prison for a crime he did not commit, and the law in Denial is that auralism is valid.

Change the name of the jurisdiction and the science, and this hypothetical case paints a realistic picture of the current state of the law in most jurisdictions. Appellate courts, limiting themselves to the information presented at trial, are forced to affirm trial courts' Daubert1 rulings under an abuse-of-discretion standard of review. By confining themselves to the record and failing to conduct any independent research on scientific validity, courts of appeals fail to discover junk science. The solution is for appellate judges to conduct independent research of Daubert issues.

Daubert scientific issues represent a unique area of the law. More so than traditional evidentiary issues, Daubert issues transcend individual cases. A ruling on the validity of a science utilized in one case will affect every other case in that jurisdiction. As the hypothetical case demonstrates, this can be disastrous if the parties are unprepared and neglect to provide the trial judge with any useful information regarding a scientific theory's validity. Legal resolutions of this type harm not only the litigants of one case, but all future litigants in that court.

Standard of review

Of course, in appellate law, the preliminary issue is the standard of review. If appellate judges may only review a trial court's Daubert ruling for an abuse of discretion, they must limit themselves to the record before them. So to permit an appellate judge to conduct independent research, appellate courts must adopt a hybrid standard of review that defers to the trial judge on matters concerning the application of the science to the facts of the particular case, but reviews de novo the validity of the science itself.

A hybrid standard is not unheard of and is, in fact, advocated both in appellate court opinions2 and in scholarly literature. Kesan points out that "[t]he gate-keeping function assumes that trial judges possess some sophistication and experience in scientific matters . . . [but] [t]here is little reason to believe that trial judges can readily equip themselves with such expertise."' Kesan contends that

de novo appellate review of district court findings on the scientific knowledge prong of Daubert would create a body of appellate opinions that carefully review scientific theories and methodologies. …