Virginia's Answer to Daubert's Question Behind the Question

By Kelsey, D. Arthur | Judicature, September/October 2006 | Go to article overview

Virginia's Answer to Daubert's Question Behind the Question


Kelsey, D. Arthur, Judicature


Who determines if the science is reliable?

Virginia assumes the jury can usually be trusted to separate the sheep from the goats.

My interest in Daubert lies beneath the shifting tectonic plates of academic debate regarding its specific application to differing schools of scientific knowledge. To me, the more important (and considerably more worrisome) question is not whether this or that type of novel scientific opinion is reliablebut rather who gets to decide whether it is or not.

The Daubert Effect

For 70 years, pre-Daubert federal courts allowed scientific opinion testimony when the underlying scientific theory or basis of opinion was generally accepted as reliable within the expert's particular field.1 Daubert held that Federal Rule of Evidence 702 superseded the Frye standard, replacing it with a flexible test focusing on reliability. Daubert described the Frye standard as out of sync with the "liberal thrust" of the Federal Rules of Evidence and incompatible with their goal of "relaxing the traditional barriers to Opinion' testimony."2 Frye's "austere standard," Daubert concluded, could not be reconciled with the "permissive backdrop" of the expert opinion rule.3 As the Fourth Circuit quite reasonably put it a few years later, scientific opinion evidence under Daubert should be admitted "more liberally under Rule 702 than it was under Frye."4

Problem is, 10 years later, hardly anyone now believes that. Professor Cheng states the consensus view this way:

Although the practical effects of Daubert were initially ambiguous, the enduring legacy of the Daubert decision is now relatively clear.... Daubert has become a potent weapon of tort reform by causing judges to scrutinize scientific evidence more closely . . . . The resulting effects of Daubert have been decidedly pro-defendant. In the civil context, Daubert has empowered defendants to exclude certain types of scientific evidence, substantially improving their chances of obtaining summary judgment and thereby avoiding what are perceived to be unpredictable and often plaintiff-friendly juries.5

Anecdotal evidence from federal trial judges confirms this view. As the Federal Judicial Center reports:

Compared to 1991, judges in 1998 reported that they were more likely to scrutinize expert testimony before trial and were less likely to admit it. Judges said that they limited or excluded some of the testimony proffered by experts in 41% of the referenced 1998 cases, compared to only 25% of the referenced 1991 cases. These figures support the suggestion that judges may exercise more control over expert evidence post-Daubert than was done in pre-Daubert times.6

Despite all its rhetoric about liberality, truth be told, Daubert has undergone a rather illiberal evolution. As revealed by a telling slip of the tongue by Justice Ruth Bader Ginsburg, Daubert is now understood to impose "exacting standards of reliability,"7 far less flexible and permissive than anyone anticipated.

The gate-closing instincts of gatekeepers in response to the new open-gate policy (which, for lack of a better expression, I call the "Daubert Effect") cannot be easily explained. Perhaps it occurred because of the repeated statements in later opinions about the trial court's "special obligation" under Daubert to keep out inadmissible expert testimony.8 From this, trial judges probably reason that Daubert requires a higher level of rigor than the evidently not-so-special duty to exclude other inadmissible testimony (hearsay, irrelevancies, and the like) trying to sneak past the gatekeeper during a typical trial.

It may well be, too, that this evolution came about as a result of concurring opinions targeting "junky" science,9 or gratuitously suggesting that trial judges appoint "special masters" or "specially trained law clerks" to assist in the gatekeeping function.10 Such additional manpower, one would think, would be needed more to secure the gate in a closed rather than an open position. …

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