Evidence Notes File 9

LAW 6330 (4 credits)
Professor Pedro A. Malavet
Fall 2012
Mondays and Wednesdays
3:00-4:50 p.m.
Room 285B

9.0 Opinion and Expert Testimony

9.1 Lay Opinion Testimony

Rule 701. Opinion Testimony by Lay Witnesses 

  • [CB] By longstanding tradition, lay witnesses testify to facts, not opinions based on facts. They did so before the Rules were adopted, and they do so in modern practice. Yet inevitably lay witnesses do give opinion testimony and always have. And while the Rules did not bring about a day-and-night change, they did significantly alter the approach to lay testimony, and are more generous than the common law in allowing lay opinions.
  • [CB] Still, courts long tried to separate "fact" from "opinion," for three reasons:
  • [CB] First was an apparent misreading of old English precedents, which sometimes expressed the (entirely sound) requirement of first-hand knowledge by rejecting opinion testimony. American courts seemed to overlook the purpose of the distinction and rejected opinions even where the witness had first-hand knowledge.
  • [CB] Second was the emergence of the idea that an expert witness (one trained in matters of science) should be allowed to state his "opinion," in the sense of analyzing and interpreting underlying data so as to paint a picture understandable by a lay trier of fact. It came to be understood that lay opinions were improper simply because, by definition, lay witnesses lacked special training.
  • [CB] Third was the notion that the trier of fact should draw its own conclusions, and that lay opinion testimony would "invade the province of the jury." See generally the account of these points in 7 Wigmore on Evidence §1917 (J. Chadbourn rev. 1978).
  • [CB] The Rules approach. The modern view recognizes that "facts" and "opinions" are regions in a continuum, and they differ in degree rather than kind: Facts are more specific or concrete, opinions more general or conclusory. While most courts would instinctively agree that testimony by lay witnesses should be specific rather than general, concrete rather than conclusory, Rule 701 does not try to preserve a fact-opinion dichotomy. Instead it speaks functionally.
  • [CB, middle of the paragraph] *** And the Rules reject the old fear about invading the province of the jury: FRE 704 says that lay opinion testimony is "not objectionable because it embraces an ultimate issue." ***
  • [CB] Modern Practice. *** The so-called collective facts doctrine makes the point that certain ideas well within common experience can best be expressed, and reliably so, by means of a shorthand word or phrase. ***
  • [CB, the Skeet Case:] If the jury can be put into a position of equal vantage with the witness for drawing the opinion, then the witness may not give an opinion. [But of course, this is often impossible, because recreating the scene viewed by the witness is not feasible]. [Therefore, b]ecause it is sometimes difficult to describe [various matters,] witnesses may relate their opinions or conclusions of what they observed.
  • Note the very good sets of examples of proper an improper admission collected by the authors.
  • [CB] In the spirit of these comments, modern reviewing courts have approved opinion testimony of the following sorts:
    • l. In deciding not to promote T, M did not base his decision on her national origin;
    • 2. Defendant was involved in gathering and transporting stolen farm equipment;
    • 3. The grade crossing was in poor condition and difficult to get across;
    • 4. Claimant was an alcoholic unable to work;
    • 5. It seemed that plaintiff had time to get out of the way.

Problem 9-A: It Was My Impression: Authors' Answers with my comments.

  • Probably the testimony by Carter should be disallowed as not "rationally based" on her perceptions, although the question is close. [FRE 701]
  • *** Often witnesses are allowed to "interpret" what friends have told them (note 1 after Problem 9-B), but the inference should be stronger than the one suggested on these facts.
    • In last year's class there appeared to be a gender divide on this one. Certainly, Ms. Fuller made a very good argument in favor of admissibility indicating that if you can show that they had a long-term relationship, and that they communicated in a particular way similar to what occurred here, then perhaps the conclusion would be objectively rational.
    • Keep in mind that under FRE 701 subjective belief is NOT enough. The conclusion has to be reasonable, albeit the particular relationship between the parties may in fact put this witness in a better position than others to "understand" what the person meant.
  • What the court actually held. On similar facts, the Ninth circuit found that admitting such testimony was error, but harmless:
  • Lay witnesses are normally not permitted to testify about their subjective interpretations or conclusions as to what has been said. . . . Under [FRE 701], some lay expressions of opinion or inference may be permitted but only if [objectively] rationally based on perception of a witness and helpful either to an understanding of the testimony of the witness on the stand or to the determination of a fact in issue.
  • Carter's conclusions derived from the fact that on two occasions the appellant had told her he knew someone who would blow up cars for fifty dollars, and that on one of these occasions he had also shown her a newspaper article concerning the second bombing incident. While her statement does go to the determination of a fact in issue, i.e., whether or not appellant was involved in the second bombing, the facts underlying her impression do not rationally lead to the conclusion made. Her "understanding did not aid the triers of fact in their understanding of what the appellant had said and done. The jury could draw its own conclusions from what Carter had already testified. Her additional analysis was irrelevant and should not have been admitted.
    United States v. Cox, 633 F.2d 871, 875-876 (9th Cir. 1980).
  • Malavet
    • In reading the real case, I did not get the impression that Carter was anything other than a friend or acquaintance of the defendant.

Problem 9-B: The Watchful Neighbor: The Authors' Answers, comments.

I will transcribe what the authors say about this, but I really liked the arguments made in class. Nevertheless, note that this is a very helpful problem to see how these are very much matters of knowledge and experience, and the reasonable conclusions derivable therefrom.

  • -- Direct Examination by Pinkston --
  • (1) Pinkston was taking Amy to ballet lessons. [Concluded or he knows?] Because the point is collateral, and Hanson volunteered it as part of a natural account of what he saw, no objection would be raised. If it were important in the case to prove where Pinkston was going, the calling party would be wise to lay a foundation for Hanson's opinion: He might first testify that Amy was wearing a tutu, or that he often saw mother and daughter leaving at this hour and day and knew from conversations with them that Amy took lessons. (The latter constitutes a hearsay basis, but one that would likely be allowed under the state-of-mind exception, if mother or daughter indicated that Amy was to have such lessons.)
  • (2) The pickup "plowed right into the side" of the car. Here Hanson makes a point of substantive importance, suggesting that Davis was at fault, that Pinkston "had position" and Davis should have given way. If Davis had objected (he didn't), Pinkston might be required to ask Hanson to describe the relative position of the vehicles at the time of impact. Davis might also interrupt Pinkston's case and ask permission to voir dire Hanson "in aid of an objection" and in hope that he could show that Hanson saw little or nothing of what occurred. On the facts given, however, the judge probably would not permit this interruption, and would tell Davis to "wait for your turn to cross-examine." Hanson's somewhat conclusory expression ("plowed right into the side") should be acceptable, if indeed Hanson can say the car had gotten into the street and the truck struck its side.
  • (3) Hanson "would guess" the truck driver is defendant Davis. If Hanson can do no more than "guess," he may be limited to describing the driver as best he can. On appropriate objection, the court would tell Hanson not to "guess" or "speculate," and instead to "stick to what you know" or "think to be true." But the uncertainty here may not be fatal, for Hanson seems to know at least something about the driver (he "had a beard"), and may well have enough basis to make at least a tentative identification of Davis.
  • (4) The pickup was going "thirty-five miles per hour." Here is a point on which any grown layperson would permitted to make an estimate. Driving at such speed, and seeing others doing so, are matters of common experience and well within the capacity of grown laypersons to estimate. Again, conceivably Davis might interrupt and "voir dire" Hanson, but the trial court would probably not permit the interruption. If Hanson did not actually look up until he heard the crash or got only a fleeting glance (so he did not observe the truck moving in the street), Davis would probably block the testimony. But even if Hanson saw the truck for a few seconds prior to the collision, that would suffice.
  • (5) The speed limit is 20 MPH. Here is a question of law to which Hanson cannot properly testify, particularly if he depends (as he indicates) on general application of a legal principle (the limit is 20 MPH within 500 feet of a school). But the legal limit is likely to be whatever limit is posted, and Hanson is clearly competent to say that a sign down the block says "Speed Limit 20," which is likely to be good enough.
  • (6) "Strong smell of pot." Here we would expect an objection, unless Davis knew he was ultimately going to lose on this point because in fact he was under the influence of marijuana. While Hanson can describe what he smells, knowledge of the way "pot" smells would not be viewed as part of common human experience. On appropriate objection, Pinkston would have to adduce testimony that Hanson meant "marijuana" when he said "pot" and that he knows what marijuana smells like.
  • (7) Davis had "a real guilty look" (he seemed "afraid" that he would "lose his license or get sued"). Hanson can testify to the apparent emotional state of Davis ("guilty look" is probably alright), but the suggested explanation (Davis feared license suspension or suit) is speculation and would be excluded on objection.
  • (8) Pinkston was "upset about her little girl." Appraisal of emotional condition is proper, and the situation presents a sufficient basis for Hanson to explain that her concern was directed to Amy. (Holding the child, focusing attention on her, or comforting her would support a reasonable opinion that Pinkston was "upset about her little girl.")
  • (9) Injuries ("broken back" and "dislocated shoulder"). Unless Hanson is a doctor, he cannot testify over objection to a medical diagnosis, so these answers are objectionable. But he can certainly testify that Amy was lying prone, and that any movement of her torso produced a response of pain; and he could testify that Pinkston was holding her shoulder and seemed unable to move her arm.
  • (10) Car was "totaled," and damage was "about $5,000." Hanson can describe physical damage ("whole right side was caved in"), though the conclusion that the car was "totaled" might be objectionable as requiring the expertise of an insurance adjuster. Pretty clearly Hanson should not be allowed to give a dollar figure unless he has some special basis in experience or expertise.
  • -- Cross by Davis --
  • (11) Pinkston "looked like she was in a hurry." Hanson can express such a conclusion if he saw Pinkston enter the car and back it up (and thinks that her actions, including speed in backing indicates rush). He can also say she "didn't turn around to look," and this point itself might support the conclusion.
  • (12) Davis did all he could "to avoid collision" and "couldn't have stopped in that short a space." These conclusory appraisals are proper if Hanson saw the whole thing, though the opinion might be stricken if a more particular account (which Pinkston would likely develop on redirect) makes it clear that the appraisal is not "rationally based" on what Hanson saw.
  • (13) The "hypothetical perfect driver." An objection to this question would likely be sustained as "speculative" (unrooted in the facts) and "vague" (does "perfect" driving have any meaning, outside of applicable legal standards?), and "not helpful to an understanding of his testimony" (what he has said does not call for comparison with any particular standard or norm). Pinkston might well object also that Hanson is not "an expert" in what constitutes perfect driving. [Note 4]

The Smell of Marijuana

The casebook authors are correct in pointing out that most courts rule that smelling marijuana requires expertise. The bulk of reported caselaw agrees, by referring to experienced agents often.

However, I have found a small line of cases that rule that lay opinion, i.e., FRE 602 + FRE 701 opinion, on what marijuana smells like, may be admitted. For example:

  • We find Santana's first evidentiary challenge meritless. It is axiomatic that a witness may testify as to his personal knowledge -- here, what he smelled. Fed. R. Evid. 602; see also Sheek v. Asia Badger, Inc., 235 F.3d 687, 695 (1st Cir. 2000). There was a sufficient foundation for this testimony because Drouin testified that his job exposed him to marijuana, and another witness testified that marijuana residue was found on the wrapper. See United States v. Paiva, 892 F.2d 148, 157 (1st Cir. 1989) (holding that past experience and personal knowledge and observation may qualify a lay witness to identify drugs). The content of the wrapper was in issue because the defense wanted the jury to infer that it could be cocaine, while the government alleged that it was marijuana. Santana suggests for the first time on appeal that the testimony should have been excluded under Rule 702. However, Drouin's testimony as to what he smelled was based on his perception and therefore he was not required to qualify as an expert under Rule 702. It was not an abuse of discretion to admit Drouin's lay opinion testimony that he smelled marijuana during a search of Nickerson's home. See id.” United States v. Santana, 342 F.3d 60; 2003 U.S. App. LEXIS 18170 (1s Cir. 2003) [but in this case the 702 objection was raised for the first time on appeal].
  • [But, see contra:] Noble raises two evidentiary issues. First, Noble contests the admission of lay opinion regarding the smell of marijuana in his apartment. Federal Rule of Evidence 701 permits the introduction of lay opinions that are based rationally on the perception of the witness and are helpful to a clear understanding of facts in issue. Fed. R. Evid. 701. Several police officers testified during the Government's casein-chief that when they entered Noble's apartment, they were overpowered by the strong odor of marijuana. This testimony was introduced to establish the quantity of marijuana that had been present in Noble's apartment prior to the officers' search. n6 Although the testimony was based on the perceptions of the witnesses, it was not helpful to a clear understanding of the facts. The freshness of an odor provides no direct corollary to the amount of odor-producing object present. Because, however, Noble's counsel failed to object to the introduction of these lay opinions, and the testimony had no bearing on proof of the elements of the substantive offenses charged, we see no reason to review further the impact of the evidence's admission on Noble's convictions or sentencing. See Fed. R. Crim. P. 52(b).? United States v. Noble, 1993 U.S. App. LEXIS 27062 (4th Cir. 1993), Reported in Table Case Format at: 8 F.3d 822, 1993 U.S. App. LEXIS 34890.
  • See also United States v. Martinez-Perez, 941 F.2d 295; 1991 U.S. App. LEXIS 19834, 5th Cir. 1991) ("Thus we frequently take into account matters of common sense or general knowledge." The attached footnote reads, in pertinent part: "… that marijuana smells like marijuana, United States v. Arrasmith, 557 F.2d 1093, 1094 (5th Cir. 1977)” [but note that in Arrasmith the court refers to experienced agent as the source of the opinion].
  • An interesting case held that state college officials violated its students' fourth amendment rights when conducting a warrantless search of dorm rooms for drugs, absent specific rules regarding such matters in their rules/conduct codes. The parties stipulated to the "very characteristic smell of marijuana." Smyth v. Lubbers, 398 F. Supp. 777; 1975 U.S. Dist. LEXIS 11672 (U.S. Dist. Ct. West. Mich. 1975).


  • In relation to the case described in Note 4, the authors caution: "But the question in Gorby would be harder to sustain because the opinion goes to the way a "semi-tanker" operates -- a situation far removed from common experience."
  • Does it not then become a FRE 702 vs. FRE 701?

9.2.1 Experts: Identifying, "Assisting," Bases of Testimony

Rule 702. Testimony by Experts 
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

  • [CB] Under Rule 702, as at common law, an expert is essentially someone with specialized knowledge.
  • [CB] Clearly Rule 702 embraces experts who have formal education or training, such as physicians, engineers, and geologists. The standard is intended to be lenient. A person with suitable training or education may qualify even if he is not a specialist or not renowned, and even if he lacks a certification or experience.
  • [CB] Rule 702 reaches much further, embracing people with practical experience but no formal training. See United States v. Thomas, 676 F.2d 239, 245 (7th Cir. 1980) (testimony by person who had worked in car repair shop and had rebuilt cars as a hobby, to the effect that defendant was not operating such a shop, since he only had tools for "taking apart" cars and none for "assembling, repairing or painting"), cert. denied, 450 U.S. 931 (1981).

The Content of Expert Testimony:

  • [CB] Under Rule 702, an expert may testify only if what he says will "assist the trier of fact to understand the evidence or to determine a fact in issue. " This standard-for it is too vague to be a test-is also intended to be generous, and under it courts have admitted a wide range of testimony.
  • [CB] Consider the following modern examples, all approved as proper: *** [Take a look at both the approved and disapproved examples, they will help.]
  • [CB] The question has arisen whether the helpfulness requirement means that experts should testify only on subjects beyond the ken of lay juries (as common law courts often held). Modern decisions conflict. Compare In re Japanese Electric Products Antitrust Litigation, 723 F.2d 238, 278-279 (3d Cir. 1983) (FRE 702 does not limit expert testimony to matters "beyond the jury's sphere of knowledge") with K -Mart Corporation v. Honeycutt, 24 S.W.3d 357 (Tex. 2000) (in suit by patron of store who was injured while sitting on lower rail of shopping-cart corral when employee pushed other carts into corral, error to let "human factors and safety expert" testify that missing top rail presented unreasonable risk of injury; where subject is within common knowledge of jurors, expert testimony should be excluded).
  • [CB, bottom of the page] Where expertise is only marginally helpful because the subject is simple or familiar, special education or experience may add little or nothing to common understanding, but in such cases a decision excluding such testimony might better rest on FRE 403.

Bases of Expert Testimony [CB]

This is a very important and complex section, be sure to read this text carefully.

  • Malavet
    • Proper Bases of Expert Testimony:
      (1) Firsthand Knowledge [x]
      (2) Facts Learned at Trial [x]
      (3) Outside Information/Data [x]
    • In evaluating the admissibility and the content of expert testimony you must consider not just FRE 702, but rather the entire scheme created by the rules, especially 702, 703, 704 and 705.
    • Keep in mind that you must read FRE 615[B](3) (allowing certain necessary witnesses to remain in the courtroom during other witnesses' testimony) together with category no. 2, although hypothetical questions are another source of information learned at trial.

Rule 703. Bases of Opinion Testimony by Experts 
[A] The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. [B] If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. [C] Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.

The last sentence was added as part of the 2000 amendments to emphasize the point that I made in class today: disclosure of underlying facts/data to the jury by the offering party is disfavored by the rules.

Rule 704. Opinion on Ultimate Issue 
(a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.
(b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.

Rule 705. Disclosure of Facts or Data
Underlying Expert Opinion 
[A] The expert may testify in terms of opinion or inference and give reasons therefor without first testifying to the underlying facts or data, unless the court requires otherwise. [B] The expert may in any event be required to disclose the underlying facts or data on cross-examination.

  • [CB] Rule 703 lets an expert witness base his testimony on facts or data of three sorts, provided that they are "of a type reasonably relied upon by experts in the particular field," even if not admitted (nor even "admissible") in evidence. [Compare Problem 6-F] First, an expert may rely on facts or data that he learns by firsthand observation "before the hearing." Second, an expert may rely on facts or data that he learns "at the hearing." Third, an expert may rely on what amounts to outside data, meaning information he gleans before trial by consulting other sources.
  • [CB] Firsthand knowledge. The first category embraces essentially the kind of personal knowledge (firsthand experience) that Rule 602 always requires of lay witnesses.
  • [CB] Facts learned at trial. The second category is unique to experts. It embraces information "perceived by or made known to" the expert at [702] trial. For all practical purposes, this category means (1) testimony heard by the expert while sitting in the courtroom listening to other testimony before taking the stand himself and (2) information conveyed in hypothetical questions summing up evidence previously admitted. (Note that Rule 602 contains a clause making the personal knowledge principle "subject to the provisions of rule 703, relating to experts," which accommodates these techniques.) [FRE 615[B](3)]
  • [CB-] Outside data. The third category, again unique to experts, is broad and somewhat problematic. Rule 703 lets experts rely on facts or data "reasonably relied upon" by other experts in the field. *** Here too the intent of Rule 703 is to be generous in admitting expert testimony, as illustrated in the following examples approved by modern reviewing courts: [Note the examples for and against in these pages].

Underlying Data: I think that readings explain it well.

  • [CB] Use at trial of outside information. *** The intent of Rule 703, in authorizing expert testimony based on outside information, is not to make underlying data admissible for all purposes. As indicated above, the framers of Rule 703 had nearly the opposite purpose in mind-simply recognizing that inevitably experts rely on outside data, that doing so is proper, hence that it is foolish (even risky) to ignore this reality. [Compare 6-F]
  • [CB] On a second point we can also be clear. The framers assumed (and made it express in Rule 705) that sometimes the outside data would come before the trier of fact, if only because the adverse party will cross-examine the expert on the bases of his opinion in hopes of showing it to be ill-founded.
  • [CB] Here is the rub. These impeaching and supporting uses of the data do not mean that the data themselves are admissible for all purposes. Hence we face a paradox: In effect, Rule 703 envisions a category of outside data experts may reasonably rely upon, but not the trier of fact. In other words, some pretty refined distinctions are in order. And we also face the difficulty of admitting evidence susceptible of misuse, and of tempting the parties to exploit the opening thus provided. In other words, Rule 403 has a role to play.
  • [CB] Consider first the paradox. It is commonplace for experts to rely on out-of-court statements, which would be hearsay if introduced to prove what they assert. But Rule 703 does not obviate the hearsay objection to this use of such statements, even where a testifying witness relies upon them. [Problem 6-F]

Problem 9-C: "They Saw it the Same Way I Did".

  • Authors' Answers [with my comments]
  • Heart of the Matter. Donna Weaver can testify to the standard of care in Tampa: She practices there as a urologist, and surely has insight and knowledge based on training and experience that help her address this matter. (Plaintiff’s experts come from far away – Atlanta and Cleveland – as often happens because claimants cannot find “local” doctors who are willing to testify against one of their colleagues. Indeed, Drs. Miller and Nielson have more need to rely on hearsay than does Dr. Weaver just because they cannot know as much about the local standard, as we point out in note 4 after the Problem.)
  • Malavet
    • Does Note 2 after the problem explain the difficulties of this standard?
    • The actual case is from the Florida Supreme Court, Linn v. Fossum, 946 So.2d 1032, 1038-1039 (Fla. 2007).
    • The authors summarize it as follows:
  • The Problem tracks a decision by the Florida Supreme Court in 2007 in the Linn case (cited and described in note 3 after the Problem in the text). Here the Florida Supreme Court reversed a judgment for the defendant on facts substantially similar to those set forth in the Problem. Agreeing that experts can rely on “facts or data” that are “not admissible in evidence” under Fla. Stat. §90.704 (the Florida counterpart to FRE 703, which lacks the language added to FRE 703 in 2000, under which the proponent cannot bring out inadmissible facts or data in presenting the expert’s opinion), the court says that this principle is qualified in two ways: First, the facts or data must be “of a type reasonably relied upon” by experts (same standard that appears in FRE 703), and second, “an expert cannot bolster his or her testimony by testifying that a particular treatise supports an opinion.” The Court then concludes that opinions by other experts “who have no firsthand knowledge of the case” are not “facts” and are not “data,” but are instead “hearsay opinions” that are “neither recorded nor verifiable objective evidence.” It is one thing, the Court suggests, to consult with other experts who are familiar with the case, and another to consult with experts who are not familiar with the case. The Court was willing to “assume” that an expert may testify if she relies “in part on consultations with other experts,” but still the expert may not be used as a conduit.


  • 4: An expert must give her own opinion, even if she relies on others.
  • Note the sixth amendment issue raised in note 7.

Problem 9-D: .24 Percent Alcohol has been left out of the text (p. 610 5th ed.)

This is a good problem to consider the challenges of Crawford and Melendez.

  • Malavet
  • FACTS of the Old problem, as it was included in the 5th Edition. I post them so that you may use it as a guide to an interesting problem.
  • While driving her car late one night, Brenda Ditmer leaves the road and strikes a telephone pole, sustaining serious injuries. At the hospital, Emmet Fuller (the attending physician) draws a blood sample and orders a test for alcohol.
  • The laboratory reports a blood alcohol content of .24 percent, and Ditmer is charged with driving while intoxicated. Before trial she successfully moves to suppress the results of the test, on ground that they were illegally taken in violation of the state's implied consent law.
  • At trial, the prosecutor calls Dr. Fuller. In a sidebar conference, Ditmer objects that Dr. Fuller "should not be allowed to testify concerning any conclusions he may have reached on the basis of the suppressed blood test." The prosecutor replies that "under Rule 703, expert opinion testimony need not rest on admissible evidence." Over Ditmer's continuing objection, Fuller then testifies (1) that in his opinion Ditmer was under the influence of alcohol at the time of the accident, (2) that his opinion rests upon a blood alcohol test, and (3) that the test disclosed a concentration of .24 percent in Ditmer's blood. Should the trial court have sustained Ditmer's objection on any of these three points? Why or why not?
  • Questions Presented
    • May the doctor rely on the blood alcohol test generally or in this case? [FRE 703]
    • May the doctor testify without relying on the test results?
  • Malavet
    • Note that it is absolutely crucial to realize that this is a criminal prosecution, not a civil negligence suit, and that the test results had been suppressed.
  • Authors' Answers, with my comments
  • Here the opinion of the examining physician seems to be in substance the lab report itself (at least to rest on the report). The prosecutor might formally separate them ("my opinion is that Ditmer was so under the influence that she could not safely drive"; "the report shows a blood alcohol content of .24%"), but the separation would be mostly semantic where the physician to relies heavily on the report itself.
  • In a case similar to this Problem, the Court of Appeals of Oregon held that the physician could not disclose the test results. The court noted that the statute requires blood tests to be performed "according to approved techniques and by qualified individuals," and only "with the suspect's express consent." Finding "no indication" that state Rule 703 was "intended . . . to modify the exclusionary principles of the implied consent law" and that Rule 703 "does not authorize an expert witness to tell the jury the inadmissible details of the basis of his opinion," the court concluded that the expert cannot testify about excludable test results on direct examination. State v. Knepper, 62 Or. App. 623, 661 P.2d 560 (1983). And see generally Erwin, Defense of Drunk Driving Cases (3d ed. 1988).
  • Malavet
    • Dr. Fuller might have testified as to his independent observations of the defendant. However, since the fact-pattern indicates that she sustained serious injuries in the accident, it is unlikely that his observations would be helpful.
    • In this case, the Oregon statute required actual consent. However, read your Florida Driver's License, which at the front bottom states: "Operation of a motor vehicle constitutes consent to any sobriety test required by law."
    • Note that under the U.S. Constitution, there would be a 4th Amendment problem with the report if the sample that was tested was obtained illegally by the government. That would lead to suppression of the report and of the doctor's opinion. The Sixth Amendment comes into play with reports of this nature because of the right to confront, i.e., cross-examine, the person who prepared the report. The constitutional provisions are not likely to affect civil proceedings. For hearsay purposes, the report is treated as a written assertion, and the declarant is the person who prepared/generated it.
    • Note that in Florida the results of blood alcohol and field sobriety tests conducted by the government solely for criminal investigatory purposes (as opposed to simple accident investigation reports) are protected by a statutory privilege and are thus not admissible in civil trials. Fla. Stat. Sec. 316.066.
    • However, tests conducted by the hospital for the purpose of medical treatment, with no governmental intervention, may be admitted in criminal or civil cases under the business records exception to the hearsay rule. The custodian of records must lay the foundation, and the defendant has a confrontation clause right to attack the validity of the test. Barber v. State, 775 So.2n 258 (Fla. Sup. Ct. 2001).
    • As to admission of tests conducted by the government in criminal cases, generally at the request of law enforcement agents, Fla. Stat. 316.1933 governs the matter and validity foundation as well as actual reliability foundational testimony from the chemist or technician and chain of custody testimony is required to admit the results. In other words, the report itself is hearsay and the actual live testimony of a certified technician with personal knowledge relevant to the case must be presented at trial. 

9.2.2 Other considerations (review this material as a prelude to Daubert and Kuhmo Tire).

Ultimate Issues

  • [CB] Common law tradition restricted expert testimony in various ways that seem more formal than substantive. Rule 704 abolishes one such restriction-the one barring testimony on "ultimate issues." But in 1984 Congress amended Rule 704 to reinstate the old restriction when it comes to expert testimony on the mental conditions amounting to elements of charges or defenses in criminal cases. And some of the underlying traditional concerns persist in modern cases.
  • [CB] One aspect of the old thought remains. Modern courts continue to reject expert testimony concerning the proper application of legal standards. The Advisory Committee's Note to Rule 704 suggests that courts ought to disallow questions phrased "in terms of inadequately explored legal criteria," but permit more specific questions, apparently phrased in readily understood terms. Thus an expert could not testify that decedent had "capacity to make a will" but could testify that he knew "the nature and extent of his property and the natural objects of his bounty."
  • [CB] Mental condition as element of claim or defense. In 1984 Congress amended Rule 704(b) to prevent an expert in a criminal prosecution from stating an opinion that defendant had or lacked a mental state or condition "constituting an element of the crime charged or of a defense."


  • Malavet
    • The notes in general are becoming increasingly important. Pay special attention to Note 2, regarding the interpretation of FRE 704(b). The note raises the following question: Is the new 704(b) limited to insanity defense cases?
    • The accompanying Senate Note says that FRE 704(b) reaches "all such 'ultimate' issues," including "premeditation in a homicide case" and "lack of predisposition" in entrapment. Some recent authority reads FRE 704(b) narrowly, but other authority gives it greater effect, and the cases raise the possibility that the phrasing of expert testimony might be proper when the issue is intent but improper when the issue is insanity.

Presentation of Expert Testimony [CB]

Qualification of the expert:

Recommended movie scene: The voir dire of Ms. Vito on her qualifications as an automotive expert in My Cousin Vinny.

  • [CB] When a party calls an expert witness, usually the first questions establish that the matter at hand could benefit from expertise. Then comes the foundation. In the case of a professional person (such as a physician or engineer), usually the calling party brings out (1) educational background, including degree and perhaps certificate or license to practice, (2) experience, such as employment or practice in the area to be covered by the questioning, and (3) familiarity with the subject in suit. The pattern is similar (usually less elaborate) with skilled people having informal expertise resting on experience.
  • Keep in mind that the court has broad discretion under FRE 702 et seq. and under FRE 403 to conduct as much voir dire (in the presence or out of the presence of the jury) as it is willing to allow. Therefore, do not focus on just one rule, but rather on the overall scheme of the rules. Qualifications are important, but you can have the most qualified expert in the world and her field still has to be relevant to the case and her opinion must still have a reasonable basis.
  • Note the practical aspects of qualification discussed, I think quite well, by the authors. Note as well that the qualification is a matter for the judge under FRE 104(a).
  • Finally, note the discussion of how the witness' testimony is elicited: (1) (pp. 614-615) by asking opinion as to the case (FRE 705) and even as to an ultimate issue (FRE 704(a)) or (2) (pp. 615-617) by way of hypotheticals.
  • Finally, this section has a very good discussion on why you should be in a position to ask certain questions at trial, or to make tactical decisions about how to conduct voir dire with or without the jury, and what arguments to explore: DISCOVERY should have disclosed the qualifications of the expert, and the basics of their opinions and bases therefor, accordingly, most parties can raise objections by way of motions in limine, or at the bench, asking that the jury be excused.


  • Again, the notes are very important.
  • Note 3 raises the concerns over the distinction between voir dire (presumptively to take place without the jury) and cross-examination (which takes place before the jury/trier of fact). As a practical matter, a lot of voir dire goes on before the jury simply as a matter of efficiency.
  • FRE 705 does not preclude the opposing party from asking about (1) the expert's qualifications and (2) the basis of their opinion during voir dire. This was true even before the amended language of FRE 702, which now expressly requires the court to inquire into the bases of expert testimony when determining admissibility. However, FRE 705 does impose a limit on the extent of the challenge to the underlying basis. The challenge cannot just be about the weight to be given to the conclusion/opinion, it has to go to the its underlying validity and admissibility (yes, not always an easy line to draw, but there it is).

Court-Appointed experts FRE 706 [CB]

  • Note that the courts of the U.S. rarely appoint experts. As I mentioned in class, in many civil law countries, the pattern is reversed: most experts will be court-appointed rather than party-presented.

9.2 Scientific Evidence-1: Daubert

Frye is dead, in the federal system. The question is, how much of a lower standard have we allowed with Daubert.

Also, look at the newly-added last clause of FRE 702, is this an admission that Daubert is being applied too liberally? YES.

Malavet: The Florida Supreme Court Had Rejected the Legislative Attempt to Adopt Daubert, and Then Reversed Itself

Updated 18 November 2019

  • Statute Approved Summer 2013; Rejected by the Florida Supreme Court in February of 2017
    • Passed by the Florida Legislature during the Summer of 2013
      • House Bill No. 7015
      • Amended Fla. Stat. § 90.702 & 704
      • But the Florida Supreme Court ruled that the matter required adoption by the Court under the Florida Constitution, and it declined to adopt it, as explained below.
        • Fla. Constitution Art. V(2)
  • Amending The Old Rule (1997-2013)
    • Brim v. State, 695 So. 2d 268 (Fla. 1997). The Florida Supreme Court ruled that DNA population frequency statistics were subject to scrutiny under expert testimony rules. It notes that Frye is still the law in Florida, expressly declining to adopt more lenient Daubert standard. On remand, the Circuit Court for Hillsborough County found that the statistical evidence satisfied Frye and was thus admissible. The defendant attempted to appeal directly to the Florida Supreme Court, but that court sent the case to the District Court of Appeals, with instructions that it review the Circuit's decision de novo rather than for abuse of discretion. The Second District Court of Appeals reversed the trial court, holding that DNA statistical evidence did not meet the "general acceptance" of Frye and should have been excluded. Brim v. State, 779 So. 2d 427 (Fla. App. 2000).
  • The Florida Bar Board of Governors voted against adoption of the new standard in December 2015.
  • The Florida Supreme Court initially declined to adopt Daubert.
    • The matter was heard by the Florida Supreme Court on September 1, 2016 and the court issued its opinion on February 16, 2017, ruling that the matter was procedural and declining to adopt the Daubert standard.
    • In Re : Amendments to the Florida Evidence Code

Casebook Notes

  • [CB] As trial judge, you might find yourself drawn to one or another of the following three approaches:
    • First, admit the evidence because the experts are qualified and let the jury resolve the dispute.
    • Second, decide for yourself whether the plaintiff's proof is valid science and admit or exclude accordingly.
    • Third, defer to the broader scientific community for its judgment on the validity of the science, asking the proponent to show not only what the proof is and what it means, but also to show that scientists generally agree with it.
  • The Frye standard most clearly resembles the third of these approaches. As trial judge, can you imagine being glad to have a way out? Frye would let you say to yourself, "I'm not going to let everything in and I'm not going to resolve scientific disputes myself; if I exclude anything I'll do it because other scientists don't accept the proof and I can tell the expert it's not my opinion that counts, but the verdict of other scientists."

Case: Daubert

Consider my previous highlighted version of FRE 702 when looking at Daubert for the first time.

Then, look at the new one:

Rule 702. Testimony by Experts 
[A: Relevance and 403] If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, [B: Qualified Expert] a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, [C: Reliable Science] if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Keep in mind that what I label "C" was added by the 2000 Amendments to the rule. Take the time to read the ACN on this one, it is extremely helpful.

  • Admitting Expert Testimony After Daubert:
    Preliminarily: The Judge decides (FRE 104(a))
    (1) Relevance? (FRE 401, 402)
    (2) Reliability of Expert Testimony [Daubert, FRE 702 et. seq.]
    -- (a) Qualified Expert
    -- (b) Valid Science
    (3) Balancing probative value and the six 403 Dangers
    (this is always the final hurdle, but it should be kept in mind at every stage).
  • Scientific Evidence [p. 621]: 
    Assuming the experts to be qualified THE JUDGE could:
    ==> First, admit the evidence because the experts are qualified and let the jury resolve the dispute. 
    ==> Second, decide for yourself whether the plaintiffs proof is valid science and admit or exclude accordingly. (Daubert, at least in theory).
    ==> Third, defer to the broader scientific community for its judgment on the validity of the science, asking the proponent to show not only what the proof means and what it is, but also to show that scientists generally agree with it. (Frye).
  • While Frye might be criticized as deferring too much to the "relevant scientific community,"Daubert, in spite of what I think is sound doctrine, has, on the one hand, resulted too much judicial deference to the "community of experts testifying [for one side?] at trial" (which sometimes may be a community of one), and, on the other hand, too much reliance on the jury to sort it all out. That is why the FRE 701, 702 and 703, were amended in 2000, all expressly to require the court to exercise more authority over expert testimony, at the admissibility stage.
  • The case itself:
    • Note the discussion at page 622, especially that the experts for both sides were qualified. The question that remained was, was the evidence they offered legally reliable, under the applicable standard.
  • Frye: Cited by the court at pages 623-624:
    • [CB] Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.
  • Did Frye survive the Adoption of the FRE? NO.
    • [CB] Petitioners' primary attack, however, is not on the content but on the continuing authority of the rule. They contend that the Frye test was superseded by the adoption of the Federal Rules of Evidence.5 We agree.
  • Relevance is the Starting Point
    • [CB] We interpret the legislatively-enacted Federal Rules of Evidence as we would any statute. Beech Aircraft Corp. v. Rainey, 488 U.S. 153 (1988). Rule 402 provides the baseline [Court quotes Rule]. "Relevant evidence" is defined as that which has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." FRE 401. The Rule's basic standard of relevance thus is a liberal one.
  • The Rules and the Common Law
    • [CB] Frye, of course, predated the Rules by half a century. In United States v. Abel, 469 U.S. 45 (1984), we considered the pertinence of background common law in interpreting the Rules of Evidence. We noted that the Rules occupy the field, but, quoting Professor Cleary, the Reporter, explained that the common law nevertheless could serve as an aid to their application:
  • Specific Rule as to Expert Testimony:
    • [CB] Here there is a specific Rule that speaks to the contested issue. Rule 702, governing expert testimony, provides: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." [Note the missing language, when you compare this to your text; it was added in 2000.]
  • B The FRE Test, Rationale: Relevance and Reliability
    • [CB] That the Frye test was displaced by the Rules of Evidence does not mean, however, that the Rules themselves place no limits on the admissibility of purportedly scientific evidence.7 Nor is the trial judge disabled from screening such evidence. To the contrary, under the Rules the trial judge must ensure that any and all scientific testimony or evidence admitted is not only [1] relevant, but [2] reliable.
    • [CB] The primary locus of this obligation is FRE 702, which clearly contemplates some degree of regulation of the subjects and theories about which an expert may testify. "If scientific, technical, or other specialized knowledge will assist the trier-of-fact to understand the evidence or to determine a fact in issue" an expert "may testify thereto." The subject of an expert's testimony must be "scientific . . . knowledge."8 The adjective "scientific" implies a grounding in the methods and procedures of science. Similarly, the word "knowledge" connotes more than subjective belief or unsupported speculation. The term "applies to any body of known facts or to any body of ideas inferred from such facts or accepted as truths on good grounds." Webster's Third New International Dictionary 1252 (1986). Of course, it would be unreasonable to conclude that the subject of scientific testimony must be "known" to a certainty; arguably, there are no certainties in science.
    • ***
    • [CB] But, in order to qualify as "scientific knowledge," an inference or assertion must be derived by the scientific method. Proposed testimony must be supported by appropriate validation -i.e., "good grounds," based on what is known. In short, the requirement that an expert's testimony pertain to "scientific knowledge" establishes a standard of evidentiary reliability.9 FRE 702 further requires that the evidence or testimony "assist the trier of fact to understand the evidence or to determine a fact in issue." This condition goes primarily to relevance. "Expert testimony which does not relate to any issue in the case is not relevant and, ergo, non-helpful." *** However (absent creditable grounds supporting such a link), evidence that the moon was full on a certain night will not assist the trier of fact in determining whether an individual was unusually likely to have behaved irrationally on that night. FRE 702's "helpfulness" standard requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility.
  • Malavet
    • FOOTNOTE 9: Note the distinction between scientific validity and scientific reliability. Note further that the Court finds that scientific validity may be enough to make the testimony legally reliable.
    • [CB] 9. We note that scientists typically distinguish between "validity" (does the principle support what it purports to show?) and "reliability" (does application of the principle produce consistent results?).
  • C: [Implementation, Scientifically Valid, Factors]
    • [CB] Faced with a proffer of expert scientific testimony, then, the trial judge must determine at the outset, pursuant to FRE 104(a),10 whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue.ll This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue. We are confident that federal judges possess the capacity to undertake this review. Many factors will bear on the inquiry, and we do not presume to set out a definitive checklist or test. But some general observations are appropriate. [FRE 702]
  • (1) Tested
    • [CB] Ordinarily, a key question to be answered in determining whether a theory or technique is scientific knowledge that will assist the trier of fact will be whether it can be (and has been) tested.
  • (2) Peer Review and Publication
    • [CB] Another pertinent consideration is whether the theory or technique has been subjected to peer review and publication.
  • (3) Scientific reliability, fn. 9
    (4) Control Standards
    • [CB] Additionally, in the case of a particular scientific technique, the court ordinarily should consider the known or potential rate of error, see, e.g., United States v. Smith, 869 F.2d 348, 353-354 (7th Cir. 1989) (surveying studies of the error rate of spectrographic voice identification technique), and the existence and maintenance of standards controlling the technique's operation. See United States v. Williams, 583 F.2d 1194, 1198 (CA2 1978) (noting professional organization's standard governing spectrographic analysis), cert. denied, 439 U.S. 1117 (19 79).
  • (5) General Acceptance [Frye lives?]
    • [CB] Finally, "general acceptance" can yet have a bearing on the inquiry.
  • [Other Rules]
    • [CB] Throughout, a judge assessing a proffer of expert scientific testimony under FRE 702 should also be mindful of other applicable rules. FRE 703 provides that expert opinions based on otherwise inadmissible hearsay are to be admitted only if the facts or data are "of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject." FRE 706 [FRE 705] allows the court at its discretion to procure the assistance of an expert of its own choosing. Finally, FRE 403 permits the exclusion of relevant evidence "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury...." Judge Weinstein has explained: "Expert evidence can be both powerful and quite misleading because of the difficulty in evaluating it. Because of this risk, the judge in weighing possible prejudice against probative force under FRE 403 of the present rules exercises more control over experts than over lay witnesses."
  • [CB] III: Concerns [new FRE 702]
    • We conclude by briefly addressing what appear to be two underlying concerns of the parties and amici in this case. Respondent expresses apprehension that abandonment of "general acceptance" as the exclusive requirement for admission will result in a "free-for-all" in which befuddled juries are confounded by absurd and irrational pseudoscientific assertions. [Unfortunately, juries are often dazzled and misled, rather than confused.]
  • [Scientific Orthodoxy?]
    • [CB] Petitioners and, to a greater extent, their amici exhibit a different concern. They suggest that recognition of a screening role for the judge that allows for the exclusion of "invalid" evidence will sanction a stifling and repressive scientific orthodoxy and will be inimical to the search for truth. [The reality is quite the opposite, to the extent that there is problem].
  • [IV: General Acceptance is DEAD! (sort of).]
    • [CB] To summarize: "general acceptance" is not a necessary precondition to the admissibility of scientific evidence under the Federal Rules of Evidence, but the Rules of Evidence -especially FRE 702- do assign to the trial judge the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand. Pertinent evidence based on scientifically valid principles will satisfy those demands.
  • The Rehnquist Opinion.
    • [CB] The Court concludes, correctly in my view, that the Frye rule did not survive the enactment of the Federal Rules of Evidence, and I therefore join Parts I and II-A of its opinion.
    • ***
    • [CB, bottom] I defer to no one in my confidence in federal judges; but I am at a loss to know what is meant when it is said that the scientific status of a theory depends on its "falsifiability," and I suspect some of them will be, too.
    • [CB] I do not doubt that FRE 702 confides to the judge some gatekeeping responsibility in deciding questions of the admissibility of proffered expert testimony. But I do not think it imposes on them either the obligation or the authority to become amateur scientists in order to perform that role. I think the Court would be far better advised in this case to decide only the questions presented, and to leave the further development of this important area of the law to future cases.
  • [Many district judges, intentionally or otherwise, appear to have read Daubert as Justice Rehnquist suggests in this last paragraph. However, I think that the 2000 amendments clearly indicate that his is wrong.]


  • [CB] 4. One criticism of Frye was that it excluded too much evidence, but a new concern had arisen by the time Daubert was decided, which was that courts were being flooded with "junk science," and were taking more responsibility for risk management than they could handle. The term "junk science" was popularized in Peter Huber, Galileo's Revenge: Junk Science in the Courtroom (1991), which the Ninth Circuit cited in Daubert.
  • Malavet: Junk Science:
    • American anthropologist Louise Robbins, who dazzled juries in the 1970s and '80s with her amazing forensic "feet-reading"abilities.
      She once identified a 3.5 million-year-old fossilized footprint from Tanzania as that of a 5-1/2-months' pregnant prehistoric woman.
      Before dying of brain cancer in 1987, Dr. Robbins' footprint identification testimony in U.S. and Canadian trials helped send more than a dozen people to jail, including one man who went to death row. (From a Canadian news report).
  • Malavet: Bottom Line:
    • I have given you the structure of the analysis and annotated the opinion, as usual. That is what you need to know for class purposes.
    • On a more practical note, I don't think that Daubert is a bad opinion. In fact, I think that it is a pretty well-crafted opinion. The problem has been in its implementation, in my view for two reasons: (1) It is hard to deal with scientific evidence in courts of law; and (2) judges have shown a reluctance to become, in Justice Rehnquists words, "amateur scientists." (I suppose I should add that lawyers have not been very helpful either). Judges do not have to be amateur scientists, but they do have to be judges, and they get paid the big money to decide questions of admissibility.
    • The Authors argue that while Daubert is not so bad, abuse of discretion review is. They would prefer de novo, or at least mixed law/fact review. Consider our discussion about the future in this area. I think that a good argument might be made for a higher level of review as a result of the 2000 amendments to FRE 701, 702 and 703. I don't know where this might lead, but it might be worth a shot.
  • Daubert Postscript:
    • On remand, the Circuit Court held that the plaintiffs' expert testimony did not meet the new Daubert standard. I think that this ruling is clearly wrong. However, they also ruled that the evidence would be insufficient under applicable state substantive law. Accordingly, probably because of the adequate independent state ground for the ruling, the Supreme Court denied cert. Daubert, 43 F. 3d 1311 (9th Cir. 1995); cert. denied, 516 U.S. 869 (1995).


9.4. Scientific Evidence-2: Kumho Tire

Kumho Tire generally expands Daubert to apply to all expert testimony, not just to scientific evidence.

Note that, like Daubert, Kumho Tire predates the amendments to FRE 702.

Kumho Tire

    Kumho Tire does two things:
    First, it extends the Daubert standard beyond the parameters of "scientific evidence" to all expert testimony.
    Second, it lays such stress on flexibility and "discretion" that it seems almost to dilute Daubert.
    • Can you identify how the case does these things?
    • As to the expert's opinion: is the expert's opinion consistent with his own assumptions?
  • [CB] [The trial court ruled Carlson's testimony inadmissible because his methodology failed the reliability requirement of FRE 702 and Daubert, and granted summary judgment for the defense. Plaintiffs appealed, and the Eleventh Circuit reversed, concluding that Daubert applies only to scientific evidence, not to expert testimony more generally. The Supreme Court granted certiorari.]
  • [CB] In Daubert, this Court held that FRE 702 imposes a special obligation upon a trial judge to "ensure that any and all scientific testimony . . . is not only relevant, but reliable." The initial question before us is whether this basic gatekeeping obligation applies only to "scientific" testimony or to all expert testimony. We, like the parties, believe that it applies to all expert testimony.
  • [Court quotes FRE 702, which then consisted only of the first sentence of present FRE 702.]
  • [CB] *** Hence, as a matter of language, the Rule applies its reliability standard to all "scientific," "technical," or "other specialized" matters within its scope. We concede that the Court in Daubert referred only to "scientific" knowledge. But as the Court there said, it referred to "scientific" testimony "because that [wa]s the nature of the expertise" at issue.
  • [CB] *** The Rules grant that latitude to all experts, not just to "scientific" ones.
  • [CB] Finally, it would prove difficult, if not impossible, for judges to administer evidentiary rules under which a gatekeeping obligation depended upon a distinction between "scientific" knowledge and "technical" or "other specialized" knowledge. There is no clear line that divides the one from the others. ***
  • [CB] General Standard for FRE 702
    • We conclude that Daubert's general principles apply to the expert matters described in Rule 702. The Rule, in respect to all such matters, "establishes a standard of evidentiary reliability." It "requires a valid ... connection to the pertinent inquiry as a precondition to admissibility." And where such testimony's factual basis, data, principles, methods, or their application are called sufficiently into question, the trial judge must determine whether the testimony has "a reliable basis in the knowledge and experience of [the relevant] discipline."
  • B [Factors?]
    • [CB] Petitioners ask more specifically whether a trial judge determining the "admissibility of an engineering expert's testimony" may consider several more specific factors that Daubert said might "bear on" a judge's gatekeeping determination.
    • ***
    • [CB] Emphasizing the word "may" in the question, we answer that question yes.
    • [CB] *** [May the trial judge consider the Daubert factors when testing evidentiary reliability? Yes. But the court explains:] Our emphasis on the word "may" thus reflects Daubert's description of the Rule 702 inquiry as "a flexible one." Daubert makes clear that the factors it mentions do not constitute a "definitive checklist or test." And Daubert adds that the gatekeeping inquiry must be "tied to the facts" of a particular "case" (quoting United States v. Downing, 753 F.2d 1224, 1242 (C.A.3 1985)). We agree with the Solicitor General that "[t]he factors identified in Daubert may or may not be pertinent in assessing reliability, depending on the nature of the issue, the expert's particular expertise, and the subject of his testimony." Brief for United States as Amicus Curiae. The conclusion, in our view, is that we can neither rule out, nor rule in, for all cases and for all time the applicability of the factors mentioned in Daubert, nor can we now do so for subsets of cases categorized by category of expert or by kind of evidence. Too much depends upon the particular circumstances of the particular case at issue.
  • [CB, What about General Acceptance?]
    • *** Nor, on the other hand, does the presence of Daubert's general acceptance factor help show that an expert's testimony is reliable where the discipline itself lacks reliability, as, for example, do theories grounded in any so-called generally accepted principles of astrology or necromancy.
  • [CB] Flexibility in Judging Reliability
    • To say this is not to deny the importance of Daubert's gatekeeping requirement. The objective of that requirement is to ensure the reliability and relevancy of expert testimony. It is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field. Nor do we deny that, as stated in Daubert, the particular questions that it mentioned will often be appropriate for use in [636] determining the reliability of challenged expert testimony. Rather, we conclude that the trial judge must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable. That is to say, a trial court should consider the specific factors identified in Daubert where they are reasonable measures of the reliability of expert testimony.
  • [CB] C [GE v. Joiner:
    Abuse of Discretion Appellate Review]
    • [CB] The trial court must have the same kind of latitude in deciding how to test an expert's reliability, and to decide whether or when special briefing or other proceedings are needed to investigate reliability, as it enjoys when it decides whether or not that expert's relevant testimony is reliable. Our opinion in General Electric Co. v. Joiner, 522 U.S. 166 (1997), makes clear that a court of appeals is to apply an abuse-of-discretion standard when it "review[s] a trial court's decision to admit or exclude expert testimony." That standard applies as much to the trial court's decisions about how to determine reliability as to its ultimate conclusion. ***
  • [CB] III [Using the Factors]
    • We further explain the way in which a trial judge "may" consider Daubert's factors by applying these considerations to the case at hand, a matter that has been briefed exhaustively by the parties and their 19 amici. The District Court did not doubt Carlson's qualifications, which included a masters degree in mechanical engineering, 10 years' work at Michelin America, Inc., and testimony as a tire failure consultant in other tort cases. Rather, it excluded the testimony because, despite those qualifications, it initially doubted, and then found unreliable, "the methodology employed by the expert in analyzing the data obtained in the visual inspection, and the scientific basis, if any, for such an analysis." ***
    • [CB] In sum, Rule 702 grants the district judge the discretionary authority, reviewable for its abuse, to determine reliability in light of the particular facts and circumstances of the particular case. The District Court did not abuse its discretionary authority in this case. Hence, the judgment of the Court of Appeals is Reversed.
  • [CB] JUSTICE SCALIA, with whom JUSTICE O'CONNOR and JUSTICE THOMAS join, concurring.
    • [Trial judges have discretion to "choose among reasonable means" of appraising science; they do not have discretion to perform the gatekeeping responsibility "inadequately."] MALAVET: Are these justices suggesting that abuse of discretion review may not be appropriate in this area?
    • How does one distinguish between "scientific" and "nonscientific" expertise?


The notes are very important and have been updated to include the caselaw since 2000, please review them with care.

  • [CB] 4. One criticism of Frye was that it excluded too much evidence, but a new concern had arisen by the time Daubert was decided, which was that courts were being flooded with "junk science," and were taking more responsibility for risk management than they could handle. The term "junk science" was popularized in Peter Huber, Galileo's Revenge: Junk Science in the Courtroom (1991), which the Ninth Circuit cited in Daubert.
  • Malavet
    • Junk Science:

      => American anthropologist Louise Robbins, who dazzled juries in the 1970s and '80s with her amazing forensic "feet-reading"abilities.

      => She once identified a 3.5 million-year-old fossilized footprint from Tanzania as that of a 5-1/2-months' pregnant prehistoric woman.

      => Before dying of brain cancer in 1987, Dr. Robbins' footprint identification testimony in U.S. and Canadian trials helped send more than a dozen people to jail, including one man who went to death row. (From a Canadian news report).

      PROBLEM: She was lying.
  • [CB] (c) That concept [of judicial discretion] is usually invoked in connection with the most general principles, such as those embodied in FRE 403 (weighing probative value against unfair prejudice) and 611 (controlling the mode and order of presentation in order to make it effective and efficient, and to protect witnesses). And the concept of discretion is invoked where we think trial judges can do as well or better than reviewing courts. But Daubert sets out a multifactor standard that is more detailed and particular than FRE 403 and 611, doesn't it? Don't Daubert and Kumho Tire, taken together, tell trial judges that "you must be very careful, but we won't look too hard at what you do?"
  • [CB] 8. Consider amended FRE 702. Paraphrasing, the new language says expert testimony must be "sufficiently based upon reliable facts or data," and must be "the product of reliable principles and methods" that are "applied reliably to the facts." Does this amendment capture the tasks described in Daubert and Kumho Tire? The idea of a sufficient basis is at best implicit in Daubert, but it is reasonable, isn't it, to require a sufficient basis as part of an overall assessment of reliability? Daubert holds that trial judges perform the "gatekeeping" role under FRE 104(a), and the new language in FRE 702 looks very much like specifications of admissibility. Hence it seems that trial judges determine these matters, and not juries under FRE 104(b) (describing conditional relevancy). The question whether technicians followed laboratory protocol determines whether principles and methods were "reliably applied to the facts," doesn't it? That means that trial judges determine this point as a matter affecting "admissibility," rather than juries determining it as a matter of "weight." Although the ACN does not reflect this point, modern cases had split on this point. Compare United States v. Martinez, 3 F.3d 1191, 1197 (8th Cir. 1993) (under Daubert, court should require expert to show that he "properly performed the protocols involved in DNA profiling") with United States v. Chischilly, 30 F.3d 1144, 1154 (9th Cir. 1994) (questions relating to conduct of lab procedures go to weight, not admissibility). For an argument that indeed courts rather than juries should perform this roll, see Edward J. Imwinkelried, The Debate in the DNA Cases Over the Foundation for the Admission of Scientific Evidence: The Importance of Human Error as a Cause of Forensic Misanalysis, 69 Wash. U. L. Q. 19 (1991) (matters of laboratory protocol should affect admissibility, not just weight).
  • Malavet
    • Note that Daubert makes it clear in Footnote 10 that the judge determines reliability of the expertise using Bourjayli's preponderance standards. PRIOR TO THE 2000 amendments of FRE 702 and 703, some courts held that factual basis was a weight question under 104(b). That does not appear to be a the rule under Daubert, and it certainly seems inconsistent with the amended language of FRE 702.
    • What is a Daubert Hearing? Should they generally be held? Must judges' constantly reinvent the wheel?

9.5. Toxic Torts & Syndromes,

I think that the readings on Toxic Torts essentially speak for themselves. However, let me emphasize the point of the Blue Bus article cited above: science might be able to afford to be patient with human lives, the law cannot.

Note also that preparation is the key to proper expert examination and that can only happen through discovery and proper investigation and research.


  • [CB] In the 1990s, expert testimony describing behavioral syndromes and social frameworks came of age. In at least three settings such proof has become commonplace although controversy and disagreement continue on points of detail.
  • [CB] In child abuse prosecutions, courts often admit testimony describing battered child syndrome (BCS) or child sexual abuse accommodation syndrome (CSAAS). In the sexual abuse cases, experts describe delays in reporting and initial reporting of only part of what happened, behavioral problems at school, vomiting, sexualized play, and regression in toilet training (among younger children), disclosure to a friend, withdrawal and daydreaming, and low self-esteem (among older children).
  • [CB-646] In sexual assault trials, courts often admit evidence of "rape trauma syndrome" (RTS) to help assess conduct by the victim after the fact and evaluate defense claims of consent.
  • [CB-646] Finally, in trials of men for beating women in intimate relationships and in trials of women for killing men in such relationships (where the issue is typically self-defense), courts often admit evidence of battered woman syndrome (BWS) to shed light on the behavior of the woman.
  • [CB-646-647] When such testimony describes generalized behavioral patterns based on observing many people, the term "social framework" seems an appropriate description. In terms of the criteria in FRE 702, the important questions are whether the expert has an adequate basis in observation and theory and whether the jury needs the kind of help an expert c an provide.
  • [CB-647] When such testimony describes the behavior of a crime victim or criminal defendant, the term "social framework" is no longer accurate, and syndrome evidence draws close to being character evidence of the sort regulated by FRE 404 and 405.
  • [CB-647] When expert testimony comments on the credibility of crime victims or criminal defendants, it draws close to being character evidence of the sort regulated by FRE 608. See State v. Grecinger, 569 N.W.2d 189, 193-194 (Minn. 1997) (in trial of man for attempted murder and batter against intimate companion, admitting expert testimony on BWS under MRE 608 as bearing on her veracity).

Problem 9-E: Authors' Answers, my comments in blue & red.

  • Malavet
    • I personally would allow the testimony, but I would try to narrow it. I would not allow the use of the specific term for the syndrome, as your notes indicate some courts do (see note 2 following the problem), and I would likewise limit statements such as "Sandra fits the pattern exactly," the jury should decide that. I am not sure that I would allow the last item either: "I can also say that it's extremely rare for children to make up stories of this sort."
    • Naturally, I am also troubled by the FRE 608 use of this evidence as a comment on credibility. Unfortunately, the more the testimony is based on the expert's examination of the witness, the higher the danger that the jury will substitute it for its own credibility assessment. The best way to avoid this is to have the expert testify in general terms about the syndrome and let the jury decide if the child fits within it.
    • But many courts disagree, and allow just about anything.
    • In the Grecinger case, cited above, one psychologist testified that she had treated the complainant and described her symptoms and her diagnosis of post traumatic stress disorder. Then another expert testified about the general nature and effects of Battered Woman Syndrome.
    • In the actual case that appears to have provided the foundation for this problem, State v. Myers, 359 N.W.2d 604 (Minn. 1984), the psychologist WAS allowed to testify as to each and every point, including the "extreme rarity" statement. She does not appear to have stated that the child "fit the pattern exactly," but she did "identified those characteristics commonly exhibited by sexually abused children which she had observed in the complainant."
    • Keep in mind, however, that, generally speaking, there has to be an attack on credibility to justify such testimony.
  • (1) No generally accepted behavioral models. Essentially this objection claims syndrome evidence fails the validity standard. Courts differ on the question whether there really exist patterns of behavior by victims that are clear indicators of familial sexual abuse (in note 3 after the case, we cite the decision in St. Pierre saying there are such indicators, and Dunkle that says the opposite). Courts also disagree on the question whether such testimony must satisfy a validity standard, and sometimes legislators get into the act. We think the Daubert standard should apply, and develop this point in the discussion of note 6, below.
  • (2) Invading jury's province. This argument should be rejected summarily: FRE 704 abolishes the "ultimate issue" objection, and numerous modern cases apply the modern view by rejecting claims that framework or syndrome evidence somehow invades the jury's province.
  • (3) Jury doesn't need help. This ground (helpfulness requirement of FRE 703 is not satisfied) is more serious.
    • It is not so clear that jurors cannot make sense of domestic child-abuse cases; there are slippery slope problems (if jurors need help here, couldn't they use it in virtually all criminal prosecutions?); various forms of post-traumatic stress seen in victims of beatings or rape or child abuse are not surefire signs that these crimes have occurred and could reflect other traumatic experiences.
  • Malavet
    • NOTE: As I mentioned in class, FRE 702, not 703, is the source of the GENERAL helpfulness requirement applicable to expert opinion testimony (specifically, 702[A] "will assist the trier of fact"); Rule 703 also has a helpfulness requirement, but narrowly limited to the admissibility of the facts or data on which the expert bases her opinion (FRE 703[C] "assisting the jury to evaluate").
  • On balance, however, probably this objection too should be rejected:
    • Jurors have experience with the dynamics of family life, but incest or sexual abuse of minor children in a family setting is not in the expected experience of the typical person, and the reactions and psychological realities of this setting are matters on which lay jurors probably need help. As one modern opinion commented, jurors are likely to understand what it means if a burglary victim fails promptly to report a crime, but have "less than adequate foundation" to assess the credibility of a child who might be "either unaware or uncertain" that the abuser even committed a crime. Incest is unusual enough and hard enough to understand, and the average jury is likely to have little feel for the offense or likely response of the child. And on balance neither the objection about "generalities" nor the claim of "speculation" should lead to exclusion of the evidence because (a) providing perspective on a problem not commonly understood can be helpful, and (b) the available body of experience is too large to be dismissed as speculation.
  • (4) Credibility is for jury to determine. The defense has a valid point here.
    • Juries are entrusted with credibility issues, and are expected to be able to separate truth from falsehood. Many cases reject expert testimony offered directly on the issue of witness credibility. ***
    • Still the objection should be rejected: Dr. Burton would not evaluate credibility by assessing the demeanor of Sandra (which is what juries do) nor by appraising her character for truthfulness (which even experts generally cannot do). Instead, Burton would testify that when people behave as Sandra did, that does not mean their story is untrue, and that children who have been abused by their father may not trust their mother. Most courts would admit such testimony.
    • The court might balk at letting Burton say that "Sandra fits the pattern exactly" or that "it's extremely rare for children to make up stories of this sort" because both these remarks come too close to a direct comment on Sandra's credibility and a direct claim (in the former case) that a crime occurred. A court might let the expert say that behavior like Sandra's does not mean what she says is untrue. [Limiting]
  • (5) Expert will snow the jury. The fifth ground has some merit too, for a lay jury is not in a good position to evaluate an expert analysis of a problem which the jury itself does not understand very well. Fears that juries will be overwhelmed, or that trials will turn into a "battle of experts" have regularly kept similar expert testimony out, and this point is often cited as a kind of makeweight factor in decisions excluding expert testimony.


As the notes indicate, this is a controversial area, with conflicting decisions on almost every point. We will talk about this again when we get to FRE 404 and 405 in the next weeks.

  • [CB] 1. Do jurors need help understanding battered or sexually abused children?
  • Malavet
    • I think that they do. As we discussed, typical family and personal experience do NOT include incest and rape. Moreover, how many of us even thought about "Codependency" in battering situations before law school? Can we expect jurors to be any different?
  • Malavet
    • Former UF Law Professor Tony Massaro (she now teaches at Arizona) wrote one of the ground-breaking articles in this area, and she writes, as summarized by our casebook authors:
      • "rape is a crime that "few understand," misperceiving "why it occurs, when or where it happens, how it might be prevented, and what effect it has on a victim"; when a claim of rape is met with a claim of consent, "misperceptions about rape play a prominent and documented rule in the fact finder's imagination," and a qualified expert who has examined the woman can "help to educate this fact finder in several ways," as by confirming "the existence of trauma consistent with the woman's allegations of nonconsent," helping jurors "understand the psychological cost of rape" and helping "dispel the fact finder's confusion of seduction fantasies with the reality of rape" and helping overcome "traditional disbelief of a complainant who was raped by someone who was not a stranger wielding a weapon in a dark alley".
      • Tony Massaro, Experts, Psychology, Credibility, and Rape: The Rape Trauma Syndrome Issue and Its Implications for Expert Psychological Testimony, 69 Minn. L. Rev. 395 (1985).
  • [CB] 2. If experts give syndrome evidence in child abuse cases, should they use terms like "battered child syndrome"? Should they say the victim suffers from (or exhibits) this syndrome? In the other settings described above, should experts use the terms "battered woman syndrome" and "rape trauma syndrome"? Should experts say the particular woman suffers from (or exhibits) the syndrome? Courts have tended to say no.
  • [CB] 3. Absent clinical symptoms, do experts understand children well enough to know whether they were likely beaten or sexually abused? Compare United States v. St. Pierre, 812 F.2d 417, 419420 (8th Cir. 1987) (scientific community recognizes "certain emotional and psychological characteristics" in sexually abused children) with with Miller v. Commonwealth, 77 S.W.2d 566 (Ky. 2002) (CSAAS is not a diagnosis generally accepted in the relevant scientific community, and may invade province of jury; one may not introduce "evidence of the habit of a class of individuals either to prove that another member of the class acted the same way under similar circumstances or to prove that the person was a member of that class because he/she acted the same way"). Do experts understand women well enough to know whether they were likely raped? See People v. Bledsoe, 681 P.2d 291 (Cal. 1984) (RTS was devised as "therapeutic tool" to identify and treat emotional problems; counselors try to help rape victims deal with trauma, and accuracy of their descriptions is not "vital" to the task; rape counselors try to avoid credibility judgments and do not probe inconsistencies) (RTS inadmissible to show rape). If Bledsoe is right that RTS is a therapeutic rather than an investigative technique, does it follow that such evidence should be excluded altogether?
  • [CB] 5. In 1974 the California Evidence Code was amended to add language making expert testimony on "battered women's syndrome" admissible for the state or the defense "except when offered against a criminal defendant to prove t he occurrence of the act or acts of abuse which form the basis of the criminal charge." See Cal. Evid. Code §1107.
  • [CB] 6. Isn't it clear, at least after Kumho Tire, that syndrome evidence must satisfy the scientific validity standard of Daubert? On this point, compare United States v. Hadley,918 F.2d 848, 852-853 (9th Cir. 1990) (psychiatric testimony on behavioral patterns in sexually abused children need not satisfy pre-Daubert standard of Frye) and Cal. Evid. Code §1107 (BWS "shall not be considered a new scientific technique whose reliability is unproven" if expert is properly qualified) with United States v. Amador-Galvan, 9 F.3d 1414, 1 417-1418 (9th Cir. 1993) (remanding so trial court can apply Daubert in ruling on motion to admit expert testimony on reliability of eyewitness identification).

9.6. DNA Evidence (Not Covered)

In general, I am not concerned with the specific scientific detail in this section. However, that detail should give you a strong illustration of the challenge for the lawyer who cross-examines a DNA expert.

The Innocence Project of Cardozo Law School at Yeshiva University has participated in the post-conviction exoneration of 125 persons using DNA evidence.

Statistical Information controversial. See, e.g., U.S. v. Mason, 2003 CCA Lexis 10, at n. 11, (US Army Ct. of Criminal Appeals 2003).

Case: Moore

  • [CB] Before trial the defense moved to exclude all DNA evidence, but the court denied the motion. The defense then moved to exclude testimony describing statistical calculations "which would have presented a probability that any alleged match between the tissue samples and the Brisbin children is not coincidental." The trial court granted this motion.
  • [CB] The court admitted DNA analyses of human blood and small pieces of human muscle and brain tissue found in the cab of the defendant's truck. Cellmark Diagnostics conducted RFLP analysis ("restriction fragment length polymorphism") on a muscle fragment and the Analytic Genetic Testing Center (AGTC) performed PCR analysis ("polymerase chain reaction") on another muscle fragment and the cerebellum tissue. An expert from AGTC testified that the samples it analyzed "could not be excluded as having come from the biological father" of Brad Brisbin's children. An expert from Cellmark testified that DNA in the muscle tissue was "consistent with" that of Brad Brisbin's mother.
  • [CB] Genetically, humans are more alike than dissimilar. Approximately [750] 99 percent of human DNA molecules, i.e., base pair sequences, are the same, creating such shared features as arms and legs. Other sections of the DNA ladder, however, vary distinctly from one person to another. It is these variable regions, called "polymorphisms," which make it possible to establish identity and differences between individuals.
  • [CB] A particular region on the DNA molecule where a specific VNTR occurs is called a "locus." A locus is considered polymorphic when the number of VNTR's varies from one person to another. Of the approximately three billion base pairs contained in one DNA molecule, roughly three million are thought to be polymorphic. DNA profiling focuses on several highly polymorphic or hypervariable segments of the DNA. Different people will have the same VNTRs in a particular hypervariable locus, but the loci will differ in length because varying numbers of the VNTRs are linked together. Although a person may not have a unique polymorphic area at any one locus, the frequency with which two people will exhibit eight or ten of these alleles at four or five different locations is extremely low. Thus DNA analysis attempts to detect these highly variable regions and distinguish among the alleles that exist there.
  • [CB] 8. Statistical Analysis. Statistical analysis is used in both RFLP and PCR analysis. If the two DNA samples match, then population geneticists determine the likelihood that the match is unique. The scientists deter- [752] mine the frequency with which a particular allele is found in the population, then by using a multiplication or product rule, compute an aggregate estimate of the statistical probability that the suspect's combination of alleles would be found in the relevant racial population.
  • Malavet
    • Note that this is precisely the type of testimony that the Florida Supreme Court disapproved of in the Brimm case.
  • [CB] [The trial court properly admitted the DNA testimony. By requesting exclusion of statistics, the defense waived the claim that DNA evidence should not be admitted without statistical correlations, the question whether such proof should be presented without statistics in other cases is reserved. DNA evidence satisfies the Daubert standard. Problems with missing bands in the autorads for the wife and children did not require exclusion of the evidence, nor did inconsistencies in the test results for defendant's mother, nor did alleged problems with the "thermal cycler" used in the PCR process.]
  • Malavet
    • The court ruled that the errors in the testing did not require exclusion because it went to the weight of the evidence. But note that the newly amended FRE 702[C](3) requires the judge to make a threshold finding of reliability in methods as applied to the facts of the case at the admissibility stage, as Mr. Hernandez quite correctly pointed out.

Problem 9-F: Authors' Answers with my comments in blue

I received a note from a DNA researcher who participated in the initial AFIP studies, who indicated that because of the census category of "Hispanic," which is not used by anyone other than the U.S., the U.S. researchers collected samples from persons who self-identified as "Hispanic" and classified the samples as such. Scientifically, they did try to isolate DNA characteristics common to that "group."

The scientific validity of this methodology might easily be questioned in a court.

  • [CB] If allowed, Mullens would say "only one Hispanic person in 187,000 would produce such a match" (Vanbart being Hispanic).
  • Malavet
    • As I mentioned in class "Hispanic" is a U.S. census category, not one of the traditional anthropological classifications of "race."
  • (1) Untested Science.[ OVERRULED (in Montana, perhaps not in Florida).] Of course Moore holds that DNA evidence satisfies Daubert (discussion of this point is short and we edited it out). Daubert says theory, technique, and application must be scientifically valid. Genetic theory is well accepted, especially those aspects that are crucial in identifying sources. [Note 1] [As Mr. Hernandez noted, now there is even more of a reason to test the methods under amended FRE 702[C](3)]
  • (2) Lab Technique. [OVERRULED, IF.] The soundness of laboratory procedure is part of the universe of science that is subject to Daubert's validity standard (recall that Daubert refers to "methodology" and "technique"). That means in turn that the judge decides the issue under FRE 104(a). What Cellmark does in RFLP analysis is not the same as what Lifecodes does, so success in validating the Cellmark procedure does not validate the Lifecodes procedure. We consider the implications of this point further in note 2.
  • (3) Following Protocols. [OVERRULED, IF a proper foundation can be laid.] As noted in the discussion of Moore, the prevailing view on the question whether the lab followed the protocol properly in a given case is that this question is one of foundation which is to be resolved by the jury as a matter of "conditional relevancy" under FRE 104(b).
  • Malavet
    • But: arguably the 2000 amendment to FRE 702 gives the question goes to the judge, which we consider to be the wiser course. As noted in the discussion of Moore, the new language says that the expert must have "applied the principles and methods reliably," which seems likely to mean that judges are now to decide these matters (in the Notes on Daubert, Kumho Tire, and the Reliability Standard, see note 8 on page 642).
  • In any event, the language of Daubert itself (with its references to "methodology" and "technique") can be read to reach this point, and we think the issues are too technical for juries to deal with constructively, particularly in light of the other problems.
  • (4) Statistical Analysis (and Population Substructure). [OVERRULED, IF a proper foundation can be laid.] There is no doubt that the statistical analysis that comes with DNA evidence must satisfy the [Daubert] validity standard: This aspect of the proof is central to its probative worth, and the analysis is highly technical and is linked directly with the underlying observations and the very theory of genetic coding. Nor is there any doubt that the judge should pass on this objection -- like the validity standard generally, this issue affects admissibility under FRE 104(a) and is for the judge to determine.
  • (5) Compare data with Hispanics? [SUSTAINED.] This objection is well-founded: While Vanbart is Hispanic and he shows a match to the crime sample, the relevant inquiry is not How many Hispanics would show such a match but How many people in the general population would show such a match?.
  • Malavet
    • There are counter-arguments to be made (and note the cases admitting such testimony in note 6), but this is a difficult area. As I mentioned in class, and discuss above, it is not at all clear that DNA can tell the difference between racial or ethnic groups. It is possible in fact that scientists are replicating societal constructs (for example, in the DNA case, researchers gathered samples from persons who self-identified as "Hispanic" and then looked for similarities).
    • I would also remind you of the general judicial dislike for statistical evidence, which we discussed in Chapter 2, with People v. Collins and Problem 2-I.
  • Malavet:
    Since I have done research in this area, please indulge me for a second.
    • Can Kevin R. Johnson be Mexican?
      See Kevin R. Johnson, How did you get to be Mexican? (Temple 1999).
    • A recent article in the New York Times describes the debate in the scientific community. [Click here to read the article]
    • Dr. Whisenant was kind enough to procure some interesting websites that discuss DNA testing of evidence in sexual assault cases:
    • http://www.blc.arizona.edu/courses/181gh/rick/DNA_profile/assault.shtml
      [click here to go to the site]
    • http://www.vaw.umn.edu/documents/commissioned/2forensicevidence/2forensicevidence.shtml
      [click here to to the site]
  • (6) Prejudicial and misleading.
  • Malavet
    • Overruled in Montana, probably SUSTAINED in Florida. [Note 6]. I am inclined to say that this objection might be overruled in the Federal System under Dubert, although, as I discussed in class, I believe that it raises troubling questions about unfair prejudice.
  • Malavet
    • Finally, I think that DNA testing has become firmly established as valid and reliable science in the courtroom. The variations, as notes 4, 5, and 6 explore, will more often occur in what is actually admitted. "Consistency" or "inconsistency" testimony is most likely to be admitted. Statistical evidence is less likely to be admitted than "consistency" data, racialized or ethnicized statistical data is least likely to be admitted. However, as the case cited at the end of note 6 indicates, some leeway might well be appropriate to allow the witness to emphasize the strength of the consistency or inconsistency, thus improving the weight to be given to the evidence by the jury.