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Daubert for Dummies: Attacking Scientific and Quasi-Scientific Testimony 

  I.       Introduction

  Seems you can=t have a criminal trial these days without scientific evidence.  Pathologists, psychiatrists, serologists, trace evidence experts, and a host of others hold sway daily in courtrooms across the country.  Most of these experts testify for the prosecution, with predictably devastating results for our clients.  All too often this testimony goes unchallenged because the defense lawyer does not have her own expert, and feels incapable of taking on a scientific expert witness on cross-examination.  The purpose of this paper is to suggest a way of meeting the prosecution expert=s testimony and either get it excluded from the state=s case altogether, or, at least, limit its impact on the jury.

The role of the expert is to assist the jury in deciding the facts, not replace the jury.

Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579, 125 L.Ed.2d 469 (1993).

  Unreliable testimony is inadmissible; a conviction based thereon is unconstitutional.

Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579, 125 L.Ed.2d 469 (1993); Manson v. Braithwaite, 432 U.S. 98, 53 L.Ed.2d 140 (1977).

  AReliable@ means empirically sound.

Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579, 125 L.Ed.2d 469 (1993);

The trial court is the gatekeeper, screening expert testimony for scientific reliability.

Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579, 125 L.Ed.2d 469 (1993).

  The proponent has the burden of establishing the empirical soundness of the opinion.

Rules of Evidence, 702, 705

  Even opinions by experts qualified in Aestablished@ scientific fields are excludable if not based on a proper scientific foundation.

Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 143 L.Ed.2d 238 (1999).

  The opponent may examine the foundation of the expert's opinion on voir dire.

Rules of Evidence, 705.

  Scientific studies are a part of the foundation.

Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579, 125 L.Ed.2d 469 (1993).  

The expert's individual ability to form accurate opinions is part of the foundation.

Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 143 L.Ed.2d 238 (1999).

 

A.      Definitions:

  Science:  The systematic collection and analysis of data.

Junk:  An expert opinion that is not shown to be based upon science.  

Data:  Measurable, quantifiable observations, collected in studies and

published in journals.  

Fact:  An observation about which there can be no dispute; a datum.  

Opinion:  A conclusion or inference from a fact or set of facts.  

B.      Two Kinds of Junk:  

1. Opinion from a discipline that does not have a scientific underpinning.

Ex: Testimony of a psychic regarding the cause of death.

2. Opinion from a witness who cannot, or does not, establish the scientific foundation for the opinion. 

Ex: Testimony of a pathologist regarding the cause of death, where the witness cannot put the opinion into scientific terms and support the opinion with the scientific literature and her personal skill in accurately determining causes of death.  See infra.  

C.      Distinguishing Junk from Science:  

1. Science uses mathematical expressions, junk does not.  

Junk:

           -may have been

-occasionally

-rarely

-most

-perhaps

-slightly

-large  

Science:

-90.3% of the time

-3 cm or larger

-53.1% of subjects

 

2. Science Objectively Defines terms, junk does not.  

Junk:

-injuries like this

-stress disorder

-recent trauma

-large tumor  

Science:

-injury characterized by A, B, C, but not D;

-a score of 30 or more on the Smith Stress Test;

-a tumor measuring at least 2x2.5 cm;

-a trauma occurring within 72 hours of death  

3. Science Specifies the relationship between data, junk does not.  

        Junk:

-related to

-often caused by

-consistent with  

Science:

-a 75.3% correlation between

-is present in 99.2% of cases  

IV. How to Expose Expert Opinions as Being Junk

A. Pre-trial Preparation:

          1. Move for discovery of opinions and underlying data (attached)

If the judge denies your motions:

--take exception, cite constitutions

2. Move for a voir dire hearing on the foundation (attached)

If the judge denies your motion:

--take exception; cite constitutions.

--ask to make an offer of proof on what you would have asked the witness in the voir dire  

3. Predict the ultimate opinion that will be used against you.  E.g.,

AThis was an intentionally set fire.@  

4. Deduce the opinions underlying the ultimate opinions.  E.g.

AThere were two points of origin.@

ATwo points of origin indicate an intentionally set fire.@

AA point of origin is characterized by a AV@ pattern.@

AThere were two AV@ patterns on the walls.@

AI can accurately identify AV@ patterns.@  

                       5. For the opinions that will hurt your client, move for expert assistance. 

6. If you can=t get funds for an expert, seek volunteer expert or lay assistance to research the scientific literature. 

7. If you can=t get volunteer assistance, go to the Internet, technical library, treatises, etc, and research the science yourself.  

8. If you have an expert who will testify, make sure he is prepared to give the foundation of his opinions, and attack the foundation of the state=s expert. 

                       

1. While the Prosecutor Examines Its Expert:

a) Check off each underlying opinion (from pre-trial) she testifies to. 

b) Add any Anew@ underlying opinions to the list. 

                                 c) Check off any opinions for which the witness gives a solid scientific foundation.

d) Note underlying opinions the witness did not testify to. 

e) Note opinions that were not shown to have a scientific foundation. 

f) Have your expert listen to the testimony of the state=s expert so that he can criticize her methods and/or conclusions. 

2. At End of State=s Direct:

a) Move to exclude ultimate opinion, or

to limit opinion to what can be scientifically supported.

  Ex: AI could not exclude the possibility of this having been an intentionally set fire.@

b) If you are surprised by opinion or foundation of the state=s witness,

move to dismiss for discovery and/or Brady violation

move for a continuance for unfair surprise

renew motion for Ake expert  

3. During Your Cross of the State=s Expert.

a) Get the witness to acknowledge the opinions that must be true in order to make the ultimate opinion true: 

AThere were two points of origin.@

ATwo points of origin indicate an

intentionally set fire.@

AA point of origin is characterized by a AV@ pattern.@

AThere were two AV@ patterns on the walls.@

AI can accurately identify AV@ patterns.@  

b) Get the witness to agree that these are opinions (not facts).

c) Make the witness put each opinion into scientific form:

AFires with two points of origin have been proven to be intentionally set ____% of the time.@

AA point of origin can be identified by a AV@ pattern ___% of the time.@

AI can correctly identify a AV@ pattern ___% of the time.@  

                       d) If she can=t do so, move to exclude her testimony. 

e) Make witness establish foundation of each opinion. 

f) If she can=t do so, move to exclude her testimony.  

A proper foundation would include:

Scientific Foundation(from studies reported in journals) 

AThere is a generally recognized set of criteria for determining whether a burn is a AV@ pattern or not.  This set includes A, B, C, etc.@  

AStudies conducted by ____ and reported in ______ have established the mathematical relationship between intentionally set fires and multiple points of origin.  This relationship is_____.@

Personal Skill(quality control of this witness) 

AThis is what I did to investigate the fire, and how I maintained my objectivity@  

AHere are pictures of the fire scene, showing what I consider to be points of origin.@ 

AI have been tested on my accuracy in identifying points of origin, causes of fires, existence of AV@ patterns, etc., and my accuracy rate is____%@  

g) Challenge the studies relied on by the witness:

Has the study been replicated?

Has the study been criticized by reviewers?

Has the study been contradicted by other studies?

How many subjects were involved in the study?

Was there a strategy to isolate the variable to be examined?  (e.g. control group, random selection)

Are the subject characteristics similar to your case?

Are the variables defined in a way similar to your case?

Was there a strategy to guard against investigator bias?  (e.g., double blind, cross-checking)

Have the data collection techniques (e.g. tests, interview protocols) been subjected to validation studies?

Are the statistical methods employed appropriate?

Does the investigator=s conclusions follow from the results?  

h) Use treatise examination to introduce counter-studies.  

i) Challenge data collection/analysis/skill of witness:

     Has the witness been evaluated for accuracy?

                                                   Did the witness=s methods conform to reputable studies?

                                                 Have the witness= data collection methods been validated?

                                                   Does the witness have a bias in this case?

                              4. After Your Cross of the State=s Witness.

Renew motions made at end of state=s direct.

 

1. Whenever the witness testifies to an opinion prior to establishing a scientific foundation:

AObjection, inadequate foundation.@

Continue to object, or ask for continuing objection

2. If the judge cuts you off during cross-examination on foundation:

When the jury is out, get answers for the record

Argue that you are entitled to expose flaws in opinion

3. If the witness exposes a flaw in foundation of an opinion already testified to:

Move to strike the opinion

STATE OF NORTH CAROLINA                IN THE GENERAL COURT OF JUSTICE

 

___________ COUNTY                                             SUPERIOR COURT DIVISION

 

  *****************************************

 

STATE OF NORTH CAROLINA    )

)

v.                                 )           Motion for Discovery of Foundation

)           For Expert Opinions

JOHN DOE                                        )

 

*****************************************

NOW COMES the defendant named, through counsel, pursuant to G.S. 15A-902 and 903, the Constitution of the United States, Amendments VI and XIV, and the Constitution of North Carolina, Article I, sections 19, 23 and 24, and hereby requests that the Office of the District Attorney for the ____ Judicial District voluntarily provide the discovery specified below.  In the alternative, the defendant moves the Superior Court for _____ County for an Order requiring the District Attorney to provide the discovery specified below.  In support of this Motion, the defendant shows the following:

  1.  The defendant has been indicted for ________. 

  2.  On _____, the defendant filed a Motion for Discovery.  This Motion included, inter alia , a request for results of tests and examinations under G.S. 15A-903(e).  In response to this request, the District Attorney disclosed a report by Dr. ______, stating the results of various tests and examinations.  The report does not contain the data underlying the results obtained by Dr. _______.

  3.  Defendant anticipates that the state will attempt to introduce opinion testimony through expert witnesses in this case.

  4.  It will be the responsibility of the trial court, as Agatekeeper,@ to evaluate the proffered opinions to determine the adequacy of the scientific foundation for the opinions.  See Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579, 125 L.Ed.2d 469 (1993); Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 143 L.Ed.2d 238 (1999); State v. Goode, 341 N.C. 513, 461 S.E.2d 631 (1995); State v. Spencer, 119 N.C. App. 662, 459 S.E.2d 812 (1995).

  5.  The discovery statutes and both state and federal Constitutions entitle the defendant to more than a conclusory statement of opinion contained in a report.  Rather, the defendant is entitled to the data, if any, underlying the final opinion.  State v. Cunningham, 108 N.C. App. 185, 423 S.E.2d 802 (1992); G.S. 15A-903(e).

  6.  Defendant is also moving for the trial court to conduct a pre-trial hearing in order to evaluate the adequacy of the foundation of the opinions to be proffered by the state and to exclude opinions which have an inadequate scientific foundation.;

  7.  In order to adequately represent the defendant at this hearing, as well as at trial, the undersigned hereby moves for discovery of matters pertinent to the state=s proffered expert testimony.  Specifically, the defendant moves for the Court to order the District Attorney to disclose the following:

            a.  A concise and specific statement of each expert opinion the state intends to introduce;

            b.  The name, address and curriculum vita of each witness the state intends to qualify as an expert in order to present such opinion testimony;

 

c.  The scientific or technical foundation of each opinion, including, but not limited to:

           i  Citations to empirical studies supporting the opinion;

ii  Citations to articles or chapters in scientific treatises or journals supporting the opinion;

iii  Data collected by the witness or those under his/her supervision, in connection with this case, including the data collections instruments used, the data collection procedures, and the statistical analysis applied to the data in forming the opinion to be proffered.

9.         Counsel cannot adequately prepare to meet the anticipated expert testimony without the requested information.

WHEREFORE, the defendant requests that the State voluntarily provide the foregoing items of discovery prior to trial or any pre-trial hearing on the admissibility of expert testimony.  FURTHER, if the District Attorney fails or refuses to provide the requested voluntary discovery, Defendant moves this Court for a hearing on this Motion in advance of trial.

  Respectfully submitted this the ___ day of ____, 2000

  __________________________

Joe Lawyer

Joe Lawyer=s Address

 

STATE OF NORTH CAROLINA                IN THE GENERAL COURT OF JUSTICE

 

___________ COUNTY                                             SUPERIOR COURT DIVISION

******************************************

  STATE OF NORTH CAROLINA    )

)           Motion for Pre-trial Hearing

v.                                 )           on Admissibility of Expert

)           Opinion Testimony

JOHN DOE                                        )

  *****************************************

NOW COMES the defendant named, through counsel, pursuant to the Constitution of the United States, Amendments VI and XIV, and the Constitution of North Carolina, Article I, sections 19, 23 and 24, and moves the Court for a pre-trial hearing on the admissibility of expert opinion testimony.  In support of this Motion, the defendant shows the following:

  1.  The defendant has been indicted for ________. 

  2.  Defendant anticipates that the state will attempt to introduce opinion testimony through expert witnesses in this case.

  3.  It is the responsibility of the trial court, as Agatekeeper,@ to evaluate the proffered opinions to determine the adequacy of the scientific foundation for the opinions.  See Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579, 125 L.Ed.2d 469 (1993); Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 143 L.Ed.2d 238 (1999); State v. Goode, 341 N.C. 513, 461 S.E.2d 631 (1995).  Allowing the jury to hear unfounded opinion testimony would violate the Due Process and Confrontation Clauses of both federal and state constitutions. 

  4.  The state has the burden of establishing to the Court the scientific reliability of the opinions it intends to present to the jury.  State v. Spencer, 119 N.C. App. 662, 459 S.E.2d 812 (1995); Rules of Evidence, 705.  It is the duty of this Court to exclude opinion testimony that is not supported by empirical study and based upon data collected under accepted scientific conditions.  Daubert.

  5.  In order to avoid the inevitable prejudice from having the jury hear improper opinion testimony, the defendant respectfully requests the Court to conduct a hearing out of the presence of the jury on any and all expert testimony to be proffered by the state.