Counsel for defendant offered an expert witness to testify to the result of a deception test (systolic blood pressure) made upon defendant.
While courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the (foundation) must be sufficiently established to have gained general acceptance in the particular field in which it belongs.
This test had not yet gained such standing and scientific recognition as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made.
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.
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.
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.
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 court may . . . enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection. An expert witness shall not be appointed by the court unless the witness consents to act. . . . The witness shall be subject to cross-examination by each party, including a party calling the witness.
The primary issue presented was whether the adoption of FRE 702 eliminated the general acceptance test of Frye and whether, if Frye remained valid, Rule 702 required that expert scientific testimony undergo peer review to be admissible in evidence.
The majority, articulated a two-part test:
the trial judge must ensure that any and all testimony or evidence admitted is not only relevant , but reliable .
there must be a sufficient "fit" between the testimony and the facts of the case so that the testimony will assist the trier in finding the facts.
Expert evidence based on otherwise inadmissible hearsay may be admitted pursuant to Rule 703 only if the underlying facts or data are of a type "reasonably relied upon by experts in the field in generating inferences or opinions upon the subject."
Rule 706 authorizes the court to appoint an expert to assist with the case.
The court may exclude evidence under Rule 403 "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury."
Not clear whether this applies to non-scientific expert testimony . . .
States accepting Daubert: States sticking with Frye: States with their own tests, or typically a Frye-plus test: Connecticut Indiana Kentucky Louisiana Massachusetts Missouri New Mexico Oklahoma South Dakota Texas West Virginia Alaska Arizona California Colorado Florida Illinois Kansas Maryland Michigan Nebraska New York Pennsylvania Washington Arkansas Delaware Georgia Iowa Military Minnesota Montana North Carolina Oregon Utah Vermont Wyoming
The court of appeals must apply an abuse-of-discretion standard when it reviews the trial court’s decision to admit or exclude expert testimony.
Nothing in either Daubert or the FRE requires a district court to admit opinion evidence which is connected to existing data only by the ipse dixit of the expert.
ipse dixit is Latin for " he himself said it ." The term labels something that is asserted but unproved .
1. The Daubert factors may apply to the testimony of engineers and other experts who are not scientists. (a) The Daubert “gatekeeping” obligation applies not only to “scientific” testimony, but to all expert testimony according to FRE Rule 702. (b) A trial judge determining the admissibility of an (engineering) expert’s testimony may consider one or more of the specific Daubert factors . . . The Daubert factors do not constitute a definitive checklist or test and should be applied with flexibility. Daubert applies to expert testimony that might be characterized as based not upon "scientific" knowledge, but rather upon "technical" or "other specialized" knowledge."
The Daubert court provided a non-exclusive checklist for trial courts to use in assessing the reliability of scientific expert testimony. The specific factors are:
whether the expert's technique or theory can be or has been tested - challenged in some objective sense, or whether it is simply a subjective, conclusory approach that cannot reasonably be assessed for reliability;
whether the technique or theory has been subject to peer review and publication;
the known or potential rate of error of the technique or theory when applied;
the existence and maintenance of standards and controls; and
whether the technique or theory has been generally accepted in the particular community.
The Court in Kumho held that these factors might also be applicable in assessing the reliability of nonscientific expert testimony, depending upon ''the particular circumstances of the particular case at issue.''
In Daubert the Court charged trial judges with the responsibility of acting as gatekeepers to exclude unreliable expert testimony.
The Court in Kumho clarified that this gatekeeper function applies to all expert testimony, not just testimony based in science.
The 2000 amendment of Rule 702 affirms the trial court's role as gatekeeper and provides some general standards that the trial court must use to assess the reliability and helpfulness of proffered expert testimony, including those in Rule 104.
The Rule as amended provides that all types of expert testimony present questions of admissibility for the trial court in deciding whether the evidence is reliable and helpful. Consequently, the admissibility of all expert testimony is governed by the principles of Rule 104(a).
Questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court. In making its determination it is not bound by the rules of evidence except those with respect to privileges.
(b) Relevancy conditioned on fact.
When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon the introduction of evidence sufficient to support a finding of the fulfillment of the condition.
(c) Hearing of jury.
. . .Hearings on (other) preliminary matters shall be out of the hearing of the jury when the interests of justice require, or when an accused is a witness and so requests.
(d) Testimony by accused.
(e) Weight and credibility.
This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.
Justice Blackmun explained that “ absent an acceptable showing of such a nexus, evidence on the phases of the moon indicating that it was full on a certain night could not be received to show that a particular individual was behaving irrationally on that evening. ”
After a six-week trial, a jury acquitted Abbey of first-degree murder.
Abbey had a blue teardrop tattoo inscribed under his right eye after the killing, according to a gang specialist.
In excluding the expert evidence, the judge said the tattoo was a "scarlet letter" that could have a "prejudicial effect" on the trial.
"I am erring on the side of not letting it in, because I'm terrified if I do, I will, after four months of good hard work ... have a new trial on this case," he said, referring to the prospect of an appeal.
Documents relied upon to establish existence of gang, establish client is a GANG member, pattern of conduct; predicate acts (state or federal), establishing activity/organization of gang (Reports, FI cards, self-admission)
The defendant’s affiliation with the gang is often borne out by objective evidence such as tattoos, field identification cards revealing associations, and self-admissions to other officers.
It is helpful if the expert knows not only the gang in general, but the defendant himself. There is no prohibition against using multiple experts—one who is intimately familiar with the gang, and another who knows the defendant personally.
Render an opinion, based on the facts presented by the prosecutor, as to whether the crime committed benefited or promoted a criminal street gang.
Otherwise inadmissible evidence—hearsay, for instance—can be the proper basis for an expert’s opinion.
Experts can base their opinions on the defendant’s statements, other gangsters’ statements, review of graffiti or photographs of graffiti, conversations with other police officers, review of prior police reports, and centralized computer database records.
8th Circuit: CIRCUMSTANCES POINT TO DRUG CONSPIRACY. (2006, May). Narcotics Enforcement & Prevention Digest, 12(7), 6.
8th Circuit: EXPERT TESTIMONY IS VALID FOR BACKGROUND. (2004, November). Narcotics Enforcement & Prevention Digest, 10(16), 5.
9th Circuit: AGENCY RULES CAN'T BAR ACCESS TO WITNESS. (2006, July). Narcotics Enforcement & Prevention Digest, 12(10), 6-7.
Edward K Cheng (2006). SAME OLD, SAME OLD: SCIENTIFIC EVIDENCE PAST AND PRESENT. Michigan Law Review, 104(6), 1387-1402.
Shirley A Dobbin, Sophia I Gatowski, Rebecca J Eyre, Veronica B Dahir, et al. (2007). FEDERAL AND STATE TRIAL JUDGES ON THE PROFFER AND PRESENTATION OF EXPERT EVIDENCE*. Justice System Journal, 28(1), 1-VIII.
Jacqueline McMurtrie (2005). THE ROLE OF THE SOCIAL SCIENCES IN PREVENTING WRONGFUL CONVICTIONS. The American Criminal Law Review, 42(4), 1271-1287.
Craig S Neckers, Matthew L Wikander. (2006). Daubert and the Soft Sciences: Can a Forensic Economist Ever Make It Past the Gatekeeper?[dagger]. FDCC Quarterly, 57(1), 27-49.
Irving Prager, Kevin S Marshall. (2005). Examination of Prior Expert Qualification and/or Disqualification-(Questionable Questions Under the Rules of Evidence). The Review of Litigation, 24(3), 559-580.
Peter H Rast (2006). The Daubert Decision: Accident Reconstruction Considerations. Forensic Examiner, 15(4), 37-41.
David Wende (2005, December). Expert testimony. CA Magazine, 138(10), 49-50.
Joseph M White (2007, January). Effective Cross-Examination Of Expert Witnesses. The Practical Litigator, 18(1), 17-24.