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Daubert for Dummies:
Attacking Scientific and Quasi-Scientific Testimony
Mark
D. Montgomery |
Assistant
Appellate Defender |
123
West Main Street, Suite 600 |
Durham,
North Carolina 27701 |
(919)-560-3334 |
mdreierm@yahoo.com |
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.
6.
Because the outcome of this hearing will have a great impact on
trial strategy for both parties, it is important for the hearing to be
held in advance of trial.
WHEREFORE,
the defendant respectfully moves the Court to conduct a hearing on any
and all expert opinion testimony the state intends to present.
FURTHER, the defendant respectfully moves to exclude from
evidence any opinion testimony proffered by the state that the state has
not shown to have an adequate scientific foundation..
Respectfully
submitted, this ___ day of ____, 2000
__________________________
Joe
Lawyer
|