DAUBERT/KELLY Texas Forensic Science Seminar 2010 Prepared by:

DAUBERT/KELLY Texas Forensic Science Seminar 2010 Prepared by: Judge Cynthia Stevens Kent John Bradley Sam Bassett

DAUBERT HEARINGS RULE 702/705 HEARINGS ON ADMISSIBILITY OF EXPERT TESTIMONY WHEN TO HEAR: – PRE-TRIAL EARLY OR LATE? – DURING TRIAL WHEN WITNESS IS AVAILABLE – DURING DAY OR AT EVENING BREAK?

EXPERT TESTIMONY DAUBERT ISSUES TRIAL JUDGE IS THE GATEKEEPER

JUDGES Experts are people who know a great deal about very little, and who go along learning more and more about less and less until they know practically everything about nothing. Lawyers, on the other hand, are people who know very little about many things, and who keep learning less and less about more and more until they know practically nothing about everything. Judges are people who start out knowing everything about everything, but end up knowing nothing about anything, due to their constant association with experts and lawyers.

FRYE TEST FRYE TEST OF “GENERAL ACCEPTANCE” IS NO LONGER THE RULE FOR DETERMINING ADMISSIBILITY OF RULE 702 EVIDENCE

RULE 702 TRIAL COURT JUDGE WILL BE GATEKEEPER AND DETERMINE IF THE PROPONENT OF THE EVIDENCE DEMONSTRATES: RELIABILITY RELEVANCE

RELIABILITY UNDERLYING THEORY IS VALID TECHNIQUE APPLYING THE THEORY IS VALID TECHNIQUE WAS PROPERLY APPLIED ON THE OCCASION IN QUESTION

FACTORS EXTENT TO WHICH THEORY IS ACCEPTED AS VALID BY RELEVANT SCIENTIFIC COMMUNITY QUALIFICATIONS OF EXPERT EXISTENCE OF LITERATURE SUPPORTING OR REJECTING THEORY

FACTORS - CONTINUED POTENTIAL RATE OF ERROR AVAILABILITY OF OTHER EXPERTS TO TEST TECHNIQUE CLARITY OF EXPLAINING THIS SCIENCE EXPERIENCE AND SKILL OF PERSON WHO APPLIED TECHNIQUE

T.R.E. 701 LAY OPINION TESTIONY A NON EXPERT MAY GIVE AN OPINION IF IT IS RATIONALLY BASED ON PERSONAL KNOWLEDGE AND IT IS HELPFUL TO A CLEAR UNDERSTANDING OF THE WITNESSES TESTIMONY OR A FACT IN ISSUE (EVEN ULTIMATE ISSUE)

701 TEST Opinion must be: 1. Based on personal knowledge (TRE 602) 2. Rational connection between opinion and facts upon which it is based (nexus) 3. Must be helpful in understanding the testimony or determining a fact in issue (relevant) 4. Not based upon knowledge within scope of TRE 702 (amendment)

Lay Opinion TRE 701 is a significant departure from the American common law which precluded lay witnesses from giving opinion testimony Evolution from recent common law to TRE 701: Courts tried to draw distinctions between fact and opinion inferences or conclusions. Drafters thought this was too difficult or contrived.

PURPOSE OF 701 Common law prohibition on lay opinion testimony was based partly on the assumption that facts and opinions are easily distinguishable and partly on the notion that jurors are as well equipped to draw inferences from the facts supplied by a lay witness as is the witness. TRE 701 abandons the common law’s nominally rigid approach to lay testimony

LAY VS. EXPERT The last clause of 701 precludes litigants from offering expert testimony under the guise of lay opinion testimony as a means of evading the discovery and reliability requirements associated with expert testimony. TRE 701 now makes it clear that there is no overlap between 701 and 702.

Opinions must be rationally based on witness’s perception Two elements required: – 1. Personal knowledge requirement of TRE 602 – 2. Mandate that the opinion must be one that a reasonable person could draw from the underlying facts. These requirements eliminate lay opinions based on hearsay, speculation, and irrational reasoning.

Helpful Requirements Test 1. The extent to which the testimony goes to the heart of the case. 2. The amount of factual matter subsumed in the opinion 3. The ability or inability of the witness to convey the information in the form of specific facts. 4. The extent to which the jury is equally wellpositioned to draw the inferences from the underlying data 5. The need for the testimony.

TRE 704: Opinion on Ultimate Issue 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 except in a criminal case where mental state is an element of the crime charged.

TRE 704 (Continued) Removes the court from determining whether an opinion goes to the ultimate issue and eliminates “invades the province of the jury” and “ultimate issue” objections. Need to do a TRE 701 or TRE 702 and TRE 403 analysis to determine admissibility. Court still permitted to exclude lay or expert opinions on issues of “fault,” “negligence” or “guilt” due to fact that opinion is not “helpful” or unnecessary per TRE 701 or TRE 702, and TRE 403

Opinions held inadmissible An expert’s opinion about accused’s guilt. U.S. v. Alonso, 48 F.3d 1536 (9th Cir. 1995) Expert may not testify as to an accused mental state or condition that constitutes an element of a crime charged or a defense to the crime charged. See U.S. v. Bennett, 161 F.3d 171 (3 Cir. 1998) But may testify that accused suffered from mental disease or defect to the describe characteristics and effects of such disease or defect.

Expert Witnesses: Overview Frye test: “General acceptance” TRE 702: Frye assist standard Daubert Test: Reliability relevance Daubert progeny TRE 703 Bases of expert opinion TRE 704 Opinion on ultimate issue TRE 705 Disclosure of data or facts TRE 706 Court appointed experts

ROLE OF THE EXPERT *The New WIGMORE The purpose of expert testimony is to provide the trier of fact useful, relevant information. Expert need not be a member of a learned profession. Expert have wide range of credentials and testify regarding a tremendous variety of subjects based on their skills, training, education or experience.

METHOD OF QUESTIONS 1. Experts may be questioned about general principles that would advance the jury’s understanding of the facts in dispute. 2. Experts may be asked to offer their own opinions based on their firsthand investigations and to describe certain observations they have made aided by their expertise. 3. Experts may be asked to provide opinions based on facts specific to the case but outside their personal knowledge.

HOW FACTS PROVIDED Facts can be supplied by the testimony of ordinary witnesses and known to the expert because the expert was present during their testimony. Alternatively, the expert may be asked to state an opinion based on hypothetical questions incorporating a party’s version of the facts as testified to by these other witnesses.

Facts not in Evidence Often experts rely on case-specific information that is not itself in evidence.

POTENTIAL DANGERS Experts are provided exemptions from rules to which other witnesses must adhere. Experts are not bound by the requirement that testimony be based on personal knowledge. Experts may serve as conduits for hearsay so long as others in the same field reasonably rely on such hearsay. Experts have been largely immune from perjury charges. BUT NOT ALWAYS.

Experts: Frye Test Frye v. United States 293 F. 1013 (D.C. Cir. 1923) “General acceptance” test The proponent must show that the theory and scientific evidence have been generally accepted within the relevant scientific community

FRYE *The New Wigmore Scrutiny of scientific as oppose to other forms of expert testimony began in 1923 with the FRYE standard of general acceptance.

FACTS OF FRYE James Frye was charged with murder. He sought to introduce testimony of psychologist who had administered a systolic blood pressure test to the defendant. The “expert” wanted to testify that the test revealed that Frye was truthful when he denied committing the murders. *Forerunner of lie detector test.

Frye Holdings Court ruled that the technique was too speculative. It found that other psychologists had yet to accept the claim of verifying honesty by measuring blood pressure. Subject of expert testimony must have gained general acceptance in the particular field to which it belongs.

Frye Results General acceptance test tended to screen out evidence. In a variety of cases it resulted in excluding the following types of evidence: – – – – – – – – – – Polygraph evidence Hypnotic and drug induced testimony Voice stress analysis Voice spectrograms Infrared sensing of aircraft Blood alcohol tests Polarized light microscopy Psychological profiles of battered women Post Traumatic Stress disorder as indicating rape Ear prints

Expert’s Opinion of Frye General acceptance standard never was popular with evidence scholars. Frye failed to provide uniformity in court’s rulings on admissibility. Frye shifted the evaluation of expert testimony reliability by the judge and jury to the general acceptance of such expert testimony within a certain field of study.

TRE 702: Testimony by Experts TRE 702: 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.

Daubert 1993 U.S. case Daubert v. Merrell Dow Pharm, Inc. 509 U.S. 579 (1993) held that the FRYE test did not survive the promulgation of the F.R.E. 702. The Supreme Court emphasized that the evidentiary rules provided for a flexible inquiry into the scientific validity of principles made the basis of an expert’s opinion, but that the court must make the preliminary determination of the admissibility of such expert testimony.

Daubert Trial Court under TRE 702 must make a preliminary assessment of whether the reasoning or methodology underlying the expert testimony is “scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.”

Daubert Trial judges are gatekeepers of expert testimony admissibility in both criminal and civil cases. TRE 702 and TRE 104 requires that the court must determine whether the proponent of the proffered expert testimony has demonstrated by clear and convincing evidence that the expert evidence is: – 1. – 2. Reliable Relevant

Daubert To be reliable, the proponent must prove that: 1. The underlying scientific theory is valid, 2. The technique applying the theory is valid, and 3. The technique was properly applied on the occasion in question.

Daubert In determining reliability the court may consider factors, non-exclusive list: 1. Extent to which the underlying scientific theory and technique are accepted as valid by the relevant scientific community, if such a community can be ascertained. 2. The qualifications of the testifying expert 3. Existence of literature supporting or rejecting the underlying scientific theory and technique

Daubert 4. 5. 6. 7. In determining reliability the court may consider factors, non-exclusive list(continuing): Potential rate of error of the technique The availability of other experts to test and evaluate the technique; The clarity with which the underlying scientific theory and technique can be explained to the court. The experience and skill of the person who applied the technique on the occasion in question.

Daubert If the Court determines the evidence is RELIABLE - then the trial judge must then determine if the evidence is RELEVANT to the determination of a fact issue which if of consequence in the case. Then the balancing test must be applied.

Daubert Daubert envisioned a flexible inquiry focusing solely on the underlying principles and methodology not on the conclusions they generate. Judges do not have to be trained in science to evaluate the reliability of a theory or technique and are capable of understanding and evaluating scientific reliability.

Daubert Judges have limited formal training or practical experience in the use and evaluation of scientific methodology. “Daubert Readiness of Texas Judiciary ” 6 Tex. Wesleyan L.R. 1 (Fall 1999) – Authored by Yours Truly

TRE 702 Criteria for admissibility: – Will the specialized knowledge assist the trier of fact? – What is the evidence?(Fingerprint, DNA, toxicology, microanalysis) – What is the issue? – What is the state of the art? – Although admissible, should it be excluded under TRE 403 – Is the witness qualified: Knowledge/ skill/ experience/ training/education

The Evolution of TRE 702 The judicial response to TRE 702 and Frye. Ex. Many states struggled and defined general acceptance prong of Frye to include such things as peer review, publication, independent validation and testing, etc . and tried to reconcile the two competing standards. The “reliability” standard: United States v. Downing, 753 F.2d.1 224( 3rd Cir. 1985)

Experts: Daubert Daubert v. Merrell Dow, 113 S.Ct. 2786 (1993). Supreme Court held that the rules do not give any indication that “general acceptance” is a necessary precondition to the admissibility of scientific evidence. “General acceptance” is a factor but is not dispositive.

Experts: Daubert (Continued) Reliability: – – – – – can be tested peer review & publication known or potential error rate standards wide spread acceptance NEW FORMULA: QUALIFICATIONS (RELEVANCE AND RELIABILITY) ADMISSIBILITY

Split of Authority in the Federal Circuits Some Federal Circuit Courts of Appeal limited Daubert to novel scientific expert opinion testimony others gave it broad application.

Daubert Progeny: Federal Daubert II (added new criteria on remand) Lacobelli Const. V. Monroe ( 3rd Cir. limited scope) Berry v. Detroit ( 6th Cir. expanded view) U.S. v. Bonds (6th Cir. admissible under Frye and Daubert) U.S. v. Starzecpyzel ( DC NY limited view but let in because Daubert didn’t apply to other parts of the rule) In re Paoli R.R. Yard PCB litigation( 10th Cir added new criteria) U.S. v. Posado (5th Cir. ought to reconsider polygraph under new standard) U.S. v. Scheffer ( Daubert/ polygraph/ MRE 707) Compton v. Subaru (10th Cir. Daubert didn’t apply to design defect case) U.S. v. Sinclair (limited view) Ninth Circuit Split: Southland Sod (broad)/ Webb(limited)

TRE 703: Bases of Opinion Testimony by Experts The bases of opinion testimony may include hearsay. “ If 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.” See also TRE 803 (18) Learned Treatise Significant departure from the common law. Under common law could not rely on inadmissible hearsay. TRE 703 permits expert to rely on hearsay.

TRE 703 (continued) Third great hearsay exception

703 – Bases of Opinions Facts within knowledge Facts presented to expert at trial Facts presented to expert out of court, not in evidence, but reasonably relied upon by experts in the field.

Otherwise Inadmissible facts May be considered in experts opinion Before the court allows disclosure of such facts to the jury, the court must determine that their probative value substantially outweighs their prejudicial effect. Just because the expert may use this information does not always mean that those inadmissible underlying facts are admissible through the expert’s testimony.

Opinions on Prohibited Data Data obtained in violation of law or constitution cannot be the basis of expert opinion. See. Estelle v. Smith, 451 U.S. 454 (1981) Even in civil cases. See Robertson v. Union Pacific RR Co. 964 F.2d 1433 (8th Cir. 1992)

MY RECOMMENDATIONS NOT INSTRUCTIONS JUST ‘CAUSE YOU’RE FOLLOWING A WELLMARKED TRIAL . . . DON’T MEAN THAT WHOEVER MADE IT KNEW WHERE THEY WERE GOIN’. » Texas Bix Bender

TRE 705: Disclosure of Facts or Data Underlying Expert Opinion An expert does not need to disclose underlying facts or data before giving an opinion or the reasons for that opinion. The expert may be required to disclose underlying facts and data on cross -examination. Issue:Does the hypothetical question survive in light of 705 and 703?

ADMISSION OF UNDERLYING FACTS If facts are admissible then allow disclosure with no limiting instruction If facts are inadmissible they possess probative value only if they may help the jury to evaluate the expert’s opinions. Court has several opinions in this situation:

INADMISSIBLE FACTS OPTIONS 1. Allow expert to disclose the inadmissible underlying facts and then give a limiting instruction to the jury. See. Brennan v. Reinhardt Institutional Foods 211 F.3d 449 (8th Cir. 2000).

INADMISSIBLE FACTS OPTIONS 2. Restrict the expert to a description of the types of underlying data upon which he relied, but not allow the expert to give any details. See Marsee v. U.S. Tobacco Co. 866 F.2d 319 (10th Cir. 1989)

INADMISSIBLE FACTS OPTIONS 3. Prohibit any mention of the otherwise inadmissible material. Opposing counsel may not use crossexamination as a means of bringing inadmissible hearsay or opinions before the jury. Thus counsel may not bring before the jury inadmissible hearsay reports or data to impeach testifying expert if expert did not rely on material in question.

TRE 706: Court Appointed Experts TRE 706 permits court to appoint experts. Make certain you follow procedure set forth in the rule otherwise it might result in disqualification due to an ex parte contact.

706 Procedure for appointment – – – – – – Court may appoint sua sponte or on motion of party Notice to parties is required Court expert may be deposed Either party may call court appointed expert Compensation in amount allowed by court Court may authorize disclosure that this is court expert – Parties may still have their own experts

LET’S LOOK AT SOME SPECIFIC TYPES OF EVIDENCE UNDER FRE 702

Physical and Chemical Instrumentation Tests derived from the physical and biological sciences and requiring sophisticated laboratory instruments are uniformly treated as meriting special scrutiny.

Mathematical and Statistical Models Although not involving sophisticated laboratory instruments, mathematical and statistical models can be inscrutable and impressive to those not schooled in these areas and might seem to qualify for heightened scrutiny of TRE 702.

Dog Sniff Evidence - Tracking No strict standard of either Frye or Daubert needed in dog tracking evidence. See Brooks v. People, 975 P.2d 1105 (Colo. 1999). Use general standards for expert testimony. See Winston v. State, 78 S.W.3d 522 (Tex.Ct. App. 2002) Special scrutiny when used as substantive proof of an accelerant in a fire. See State v Schultz, 58 P.3d 879 (Utah Ct. App. 2002)

Tests for Drunkeness Blood samples chemical analysis: look to proper laboratory procedures being followed and sample correctly obtained and preserved then reliable estimates for BAC can be proven. Extrapolations back to time of driving is more complex. Breath tests are even more challenging but the scientific cautions does not make blood and breath test inadmissible.

Drunkness Testing Mosiac of laws and rules for testing and admissibility of testing across the country which are superimposed on the more general evidence code or common law rules.

Blood, Tissue and DNA Types Many of these tests have gained such scientific acceptance that the courts may take judicial notice of their scientific acceptance and reliability. For some time there was considerable debate in court about the admission of DNA evidence.

DNA 99.9 percent of the DNA sequence in any two people is identical. DNA testing is looking to detect the relatively rare stretches of DNA called alleles that vary among individuals. Various procedures for this. First decade of DNA testing used typing procedure RFLP (restriction fragment length polymorphism)

DNA Following the initial wave of acceptance of RFLP testing the defendants pointed to problems of controlling the experimental conditions of analysis and of interpreting the results. Courts became more critical in their scrutiny of this evidence but still it was generally admitted.

DNA The attack on DNA profiling lead to cases where the courts held that estimates of the probability of a coincidentally matching VNTR (variable number of tandem repeats) were inadmissible. More research was done and the National Academy of Sciences in 1996 concluded that the usual method of estimating frequencies of VNTR profiles in broad racial groups was sound. Court responded with general admissibility.

DNA PCR (polymerase chain reaction) – based testing, small portions of DNA molecules are amplified by heating and cooling with an emzyme called DNA polymerase. There is general court acceptance that the more commonly used PCR-based procedures satisfy TRE 702 standards. This is the current status of DNA testing.

DNA Started as a fertile area of 702 litigation but has now settled down to a reliable expert area based on good scientific methodology.

Shoeprints This type of expert testimony is generally accepted. See U.S. v. Ferri, 778 F.2d 985 (1985) cert. denied.

Fingerprints Generally admissible. Techniques are generally accepted. Look to method of extraction, taking of known sample. Computer analyzed

Handwriting Generally accepted. But I suggest you look at this for TRE 702 consideration

TYPES OF EXPERTS Psychiatric Experts Use is limited only by imagination Psychological Experts You can find one for any opinion but generally accepted

TYPES OF EXPERTS Chemist Look to the specifics of the study. Porter v. Whitehall Lab. 9 F.3d 607 (7th Cir. 1998) Theory linking ingestion of ibuprofen to renal failure was rejected.

PATHOLOGIST Jackson v. State 992 S.W.2d 469 (Tex.Crim.App. 1999) and Rey v. State, Id. Pathologist in capital case which the mechanism of death was a significant factor.

DRUG EXPERT Look at scientific methodology

POLYGRAPH Courts generally rejected polygraph evidence. There was a number of courts who took a fresh look at the evidentiary value of the most commonly used polygraph tests. However there is a widespread and strongly rooted reluctance to permit polygraph evidence in that the technique is not generally accepted in the scientific community as reliable.

POLOYGRAPH Generally this evidence is excluded as it will not aid the jury because the credibility of a witness is susceptible to resolution without expert testimony. This area invades the province of the jury. However there is limited acceptance based on stipulation or for impeachment or corroboration in some jurisdictions.

POLOYGRAPH U.S. v. Posado, 57 F.3d 428 (5th Cir. 1995) rejected a per se rule of exclusion. U.S. v. Cordoba, 194 F.3d 1053 (9th Cir. 1999) affirmed finding of unreliability. U.S. v. Prince-Oyibo, 320 F.3d 494 (4th Cir. 2003) affirmed per se rule of inadmissibility. LOOK TO YOUR STATE STATUTES

POLOYGRAPH Jackson v. State 992 S.W.2d 449 Tex.Crim.App. 1999 Defendant not entitled to assistance of state funded polygraph examiner - No consensus that polygraph evidence is reliable or admissible.

Hypnosis Court are most reluctant to admit this type of evidence.

IDENTIFICATION Eye witness identification experts are generally excluded. Invades province of jury. See U.S. v. Langan, 263 F.3d 613 (6th Cir. 2001)

GANG ASSOCIATION Might be an area for consideration if a significant factor in the State’s case and they have a “gang association” expert.

ACCIDENT RECONSTRUCTION Look carefully at qualifications and methodology

EXPERTS ALLOWED IN OTHER JURISDICTIONS Blood Cardiology Psychiatrist Dental Drug Analysis Intoxication Electroencephalograph

EXPERTS ALLOWED IN OTHER JURISDICTIONS Fingerprint Firearms Hypnosis Jury selection (not in Texas) Neurologist Pathologist Questioned documents

EXPERTS ALLOWED IN OTHER JURISDICTIONS Serologist Statistics and Demography

Grounds for finding lack of reliability or helpfulness Lack of relevance Expert testimony not needed Based on speculative or incomplete data Questionable theories Too conjectural Conclusory Too great gap between data and opinion Beyond expertise

NEW AREAS What do you think? Look at the evidence the state is presenting and consider what experts would be HELPFUL