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ON APPEAL: Challenge evidence that doesn’t meet Daubert test

Amelia L. Bizzaro

Amelia L. Bizzaro

On Jan. 31, 2011, the Legislature did something that the Wisconsin courts have resisted for years. It made Wisconsin a Daubert state for the purposes of admitting expert testimony.

Before Jan. 31, the admission of expert testimony depended on (1) the expert’s qualifications, (2) whether the testimony will assist the trier of fact, and (3) whether the testimony is relevant. Under the relevancy test, the judge played the role of a limited gatekeeper and testimony was routinely admitted so long as it helped the jury. Opponents of the evidence had to use cross-examination or its own experts to counter the admitted evidence, because there was little chance the judge would exclude it prior to trial.

Now, Wisconsin joins the federal system and the majority of states that follow Daubert v. Merrell Dow Pharmaceuticals. Inc. In Daubert, the court held that the “trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Evidentiary reliability, it held, is based on several factors including scientific validity. Courts can consider methodology, peer review, publication, error rates, and standards in determining reliability and admissibility.

Under the new standard, the judge will play a much more powerful gatekeeper role. The jury will no longer be solely responsible for weeding junk science from good science. Now, the court takes on some of that responsibility, permitting the proponent to introduce the evidence only if the expert is qualified and his or her testimony is based on sufficient facts or data, is the product of reliable principles and methods and the witness has applied the principles and methods reliably to the facts of the case.

While the trial court plays a much bigger role, one thing remains unchanged: The court’s decision is discretionary. Thus, whether under the relevancy test or the Daubert test, the admission (denial of admission) of expert testimony will be reviewed for a misuse of discretion.

The question is what practical effect will this change have? While it is impossible to predict what the circuit courts across the state will do, I am not convinced the change in the law will have a big practical impact. The courts will have to undertake steps that it has never had to perform in the past, but at the end of the day, the court’s decision is a matter of discretion. It is hard for me to imagine that long-accepted forensic evidence, for example, will suddenly be ruled inadmissible because it is unreliable.

The Committee Notes to Rule 702 reveal that rejection of expert testimony is the exception, not the rule. “Daubert did not work a ‘seachange over federal evidence law,’ and ‘the trial court’s role as gatekeeper is not intended to serve as a replacement for the adversary system.’”

But even if the change in the law will not yield any practical difference, counsel still has an obligation to try to prevent the admission of evidence he or she believes does not meet the test for admissibility. Numerous resources and experts exist to help call into question evidence that has been routinely admitted in the past.

This is an opportunity for counsel to educate the bench in a way it could not in the past, particularly when it comes to the admission of forensic science. It is possible that the court is unaware of some of the problems with forensic science, as highlighted in the National Academy of Sciences’ report Strengthening Forensic Science in the United States: A Path Forward, similar to one of the co-chairs of the committee that authored the report, the Hon. Harry T. Edwards: “I started the NAS project with no skepticism regarding the forensic science community. Rather, I assumed, as I suspect many of my judicial colleagues do, that the forensic disciplines are well grounded in scientific methodology and that crime laboratories and forensic practitioners follow proven practices that ensure the validity and reliability of forensic evidence offered in court. I was surprisingly mistaken in what I assumed.”

Consider the actions of Hon. Nancy Gertner, a federal district judge in Boston. She has a standing order in her court requiring that before the pre-trial conference the parties identify whether they seek to admit trace evidence, whether a Daubert hearing is necessary and identify the witnesses and exhibits for the hearing. “In the past, the admissibility of this kind of evidence was effectively presumed, largely because of its pedigree — the fact that it had been admitted for decades. As such, counsel rarely challenged it, and if it were challenged, it was rarely excluded or limited. The NAS report suggests a different calculus — that admissibility of such evidence ought not to be presumed; that it has to be carefully examined in each case, and tested in the light of the NAS concerns, the concerns of Daubert/Kumho case law, and Rule 702 of the Federal Rules of Evidence. This order is entered to accomplish that end.” (citations omitted).

If nothing else, the change in law presents new opportunities for counsel to seek to prevent or admit expert testimony. Requesting pre-trial hearings on expert testimony preserves the issue for appeal and may provide counsel with valuable information about the strength or weakness of the case. Time will tell whether the change in the test of admissibility will have any practical effect. In the meantime, counsel should vigorously challenge evidence that does not meet the Daubert test as science continues to evolve.

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