Panel Panel PresentationPresentationAccuracy : A Accuracy : A Trial Judge’s Trial Judge’s PerspectivePerspectiveHon. Elizabeth A. JenkinsHon. Elizabeth A. Jenkins

September 13, 2005September 13, 2005

Any views expressed in this presentation are solely those of the author and do not represent the opinions of any court or the judiciary as a

whole. The cases cited are for illustrative purposes only.

““[T]here are important [T]here are important differences between the differences between the

quest for truth in the quest for truth in the courtroom and the quest courtroom and the quest

for truth in the laboratory. for truth in the laboratory. Scientific conclusions are Scientific conclusions are

subject to perpetual subject to perpetual revision. Law, on the other revision. Law, on the other hand, must resolve disputes hand, must resolve disputes

finally and quickly.”finally and quickly.”Daubert v. Merrell Dow Daubert v. Merrell Dow Pharmaceuticals, Inc.Pharmaceuticals, Inc., 509 U.S. 579, , 509 U.S. 579,

596-97 (1993).596-97 (1993).

DaubertDaubert & the & the Judge’s RoleJudge’s Role

Under Daubert, the trial judge acts as a gatekeeper for the evidence permitted at trial. Daubert, 509 U.S. at 597.

“The trial judge [has] the task of ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.” Daubert, 509 U.S. at 597.

““Vigorous cross-Vigorous cross-examination, presentation examination, presentation of contrary evidence, and of contrary evidence, and careful instruction on the careful instruction on the burden of proof are the burden of proof are the

traditional and appropriate traditional and appropriate means of attacking shaky means of attacking shaky but admissible evidence.”but admissible evidence.”

DaubertDaubert, 509 U.S. at 596., 509 U.S. at 596.

““Weight and credibility Weight and credibility are the province of the are the province of the

jury.”jury.”

U.S. v. DavisU.S. v. Davis, 103 F.3d 660, 674 (8th , 103 F.3d 660, 674 (8th Cir. 1996).Cir. 1996).

To determine whether a theory or technique is scientifically valid and will assist the trier of fact, the trial judge should ordinarily consider:1. Whether the theory or technique can (and has

been) tested;2. Whether the it has been subjected to peer

review;3. The theory or technique’s known or potential

rate of error and the existence and maintenance of standards controlling the technique’s operation;

4. The theory or technique’s general acceptance within the scientific community.

Daubert, 509 U.S. at 593-94.

““The frequency with The frequency with which a technique which a technique leads to erroneous leads to erroneous results will be [an] results will be [an]

important component important component of reliability.”of reliability.”

U.S. v. DowningU.S. v. Downing, 753 F.2d 1224, , 753 F.2d 1224, 1239 1239

(3rd Cir. 1985).(3rd Cir. 1985).

What is an “unknown” What is an “unknown” error rate?error rate?

A technique’s error rate could be A technique’s error rate could be “unknown” if the expert does not “unknown” if the expert does not know what the technique’s error rate know what the technique’s error rate is.is.

A technique’s error rate could be A technique’s error rate could be “unknown” if there have been no “unknown” if there have been no studies of the error rate.studies of the error rate.

What are the What are the consequences of an consequences of an unknown error rate?unknown error rate?

Evidence from linguist that defendant’s voice Evidence from linguist that defendant’s voice was not on tape-recordings excluded for lack of was not on tape-recordings excluded for lack of error rate information (among other things). error rate information (among other things). U.S. v. SalimonuU.S. v. Salimonu, 182 F.3d 63, 73-74 (1st Cir. , 182 F.3d 63, 73-74 (1st Cir. 1999).1999).

Evidence of “oncogene theory” that cancer was Evidence of “oncogene theory” that cancer was caused by toxic emissions excluded in part caused by toxic emissions excluded in part because error rates of the theory were unknown. because error rates of the theory were unknown. Wills v. Amerada Hess Corp.Wills v. Amerada Hess Corp., 379 F.3d 32, 39 , 379 F.3d 32, 39 (2nd Cir. 2004).(2nd Cir. 2004).

But seeBut see U.S. v. BondsU.S. v. Bonds, 12 F.3d 540, 560 (6th Cir. , 12 F.3d 540, 560 (6th Cir. 1993) (evidence as to the error rate of DNA 1993) (evidence as to the error rate of DNA matches of bloodstains was “troubling,” but matches of bloodstains was “troubling,” but evidence was admitted due to other indicia of evidence was admitted due to other indicia of reliability).reliability).

What about error What about error rates for the same rates for the same

technique?technique? Various studies of spectrographic voice Various studies of spectrographic voice

identifications found widely differing error identifications found widely differing error rates, some very high. rates, some very high. U.S. v. SmithU.S. v. Smith, 869 , 869 F.2d 348, 353 (7th Cir. 1989) (however, F.2d 348, 353 (7th Cir. 1989) (however, other indicia of reliability supported other indicia of reliability supported admission of the expert testimony).admission of the expert testimony).

Inquiries into error rates Inquiries into error rates will inevitably be case-will inevitably be case-specific and technique-specific and technique-specific.specific.

Expert testimony that the individual in Expert testimony that the individual in a surveillance film was not the a surveillance film was not the defendant excluded because it had a defendant excluded because it had a “potentially very high” rate of error. “potentially very high” rate of error. U.S. v. DorseyU.S. v. Dorsey, 45 F.3d 809, 815 (4th , 45 F.3d 809, 815 (4th Cir. 1995).Cir. 1995).

Testimony on ink analysis technique Testimony on ink analysis technique used to determine age of document used to determine age of document excluded for being only “moderately excluded for being only “moderately sensitive to error” and having a 32% sensitive to error” and having a 32% error rate. error rate. Equal Opportunity Equal Opportunity Employment Commission v. Ethan Employment Commission v. Ethan Allen, Inc.Allen, Inc., 259 F.Supp.2d 625, 635 , 259 F.Supp.2d 625, 635 (2003).(2003).

Extrapolating causation in humans from Extrapolating causation in humans from experimental animal studies has “an experimental animal studies has “an extraordinarily high rate of error” and extraordinarily high rate of error” and the testimony was excluded. the testimony was excluded. Wade-Wade-Greaux v. Whitehall Laboratories, Inc.Greaux v. Whitehall Laboratories, Inc., , 874 F.Supp. 1441, 1480 (D. V.I. 1994).874 F.Supp. 1441, 1480 (D. V.I. 1994).

Much of the expert testimony on dosage Much of the expert testimony on dosage of radiation received by populations close of radiation received by populations close to Three Mile Island had a “potentially to Three Mile Island had a “potentially high rate of error” and was excluded. high rate of error” and was excluded. In In re TMI Litigation Cases Consolidated IIre TMI Litigation Cases Consolidated II, , 911 F.Supp. 775, 796 (M.D. Pa. 1996).911 F.Supp. 775, 796 (M.D. Pa. 1996).

Known rate of error not applicable Known rate of error not applicable because expert testimony involved because expert testimony involved theories, not any particular technique. theories, not any particular technique. Sorensen By and Through Dunbar v. Sorensen By and Through Dunbar v. Shaklee Corp.Shaklee Corp., 31 F.3d 638, 649 (8th , 31 F.3d 638, 649 (8th Cir. 1994).Cir. 1994).

Experts’ assumptions which are not Experts’ assumptions which are not supported by the record have a great supported by the record have a great potential for error. potential for error. IdId..

Are error rates always Are error rates always applicable?applicable?

Maximizing effectiveness Maximizing effectiveness in a in a DaubertDaubert inquiry inquiry

Careful preparation by the parties and Careful preparation by the parties and their expert for a their expert for a DaubertDaubert hearing is hearing is critical.critical.

Some courts will enter detailed orders Some courts will enter detailed orders prior to a prior to a DaubertDaubert hearing. hearing. See, e.g.See, e.g., , In In re TMI Consolidated Proceedingsre TMI Consolidated Proceedings, 1995 , 1995 WL 848519 (M.D. Pa. November 9, 1995).WL 848519 (M.D. Pa. November 9, 1995).

Under Federal Rule of Evidence 702, a Under Federal Rule of Evidence 702, a federal court may appoint an expert in federal court may appoint an expert in any civil or criminal case.any civil or criminal case.

The consequences of a The consequences of a lack of preparation can lack of preparation can

be dire.be dire. In one case, six of eight studies In one case, six of eight studies

presented were given with insufficient presented were given with insufficient or no evidence as to the study’s rate or no evidence as to the study’s rate of error. of error. In re TMI Litigation Cases In re TMI Litigation Cases Consolidated IIConsolidated II, 911 F.Supp. 775 , 911 F.Supp. 775 (M.D. Pa. 1996). Seven of these (M.D. Pa. 1996). Seven of these studies were excluded. studies were excluded. IdId. at 829-30.. at 829-30.

Questions for Further Questions for Further ThoughtThought

Should there be a relationship Should there be a relationship between the different burden of proof between the different burden of proof in civil and criminal cases and an in civil and criminal cases and an acceptable error rate?acceptable error rate?

Should there be a relationship Should there be a relationship between the error rate of the scientific between the error rate of the scientific method and the purpose for which it is method and the purpose for which it is offered (i.e. identification, causation, offered (i.e. identification, causation, mitigation, intent, or credibility, etc.)?mitigation, intent, or credibility, etc.)?