Defining the "task at hand": Non-science forensic science after Kumho Tire Co. v. Carmichael

Washington and Lee Law Review, Summer 2000 by Risinger, D Michael

I. The Lessons of Kumho Tire Co. v. Carmichael

The 1970s and early 1980s were a period of virtually unbridled expansion of asserted expertise in civil and criminal courtrooms, limited only by the imagination of an attorney with a point to prove and a hole in her more conventional evidence.1 The appeal of using such experts stemmed in large part from two aspects of the law, one in regard to experts and one in regard to sufficiency of evidence. Courts allowed experts to phrase opinion testimony in terms of the ultimate issues in the case.2 If the "opinion" of the expert was competent, the jury might adopt the opinion in toto, making failure of proof on the issue legally impossible. Combine this situation with decidedly lax threshold standards of admissibility for expertise, and the stage was set for the acceptance of some fairly questionable practices in the utilization of expertise by litigants. Consequently, although all sides were free to play the game, the result was generally much more favorable to parties with the proof burdens (generally civil plaintiff and the prosecution in criminal cases, though criminal defendants were substantial players in regard to various affirmative d).

loudest and was heard most clearly, spoke almost exclusively of the injustice of junk expertise used against civil defendants. I refer, of course, to Peter Huber and his 1991 book, Galileo's Revenge,4 which popularized the phrase "junk science." Given the polemical success of that book, it seems unlikely to have been pure coincidence that the United States Supreme Court chose a civil case to review the appropriate threshold criteria of reliability for expert testimony, or that its two subsequent forays into these waters have also been in civil cases. Be that as it may, the pronouncements of the Supreme Court are given as trans-substantive constructions of the Federal Rules of Evidence, and so have application in criminal as well as civil cases.

vector, which points towards a more rigorous standard of reliability, is characterized by the Court's emphasis on scientific standards and its encouragement of gatekeeping review under Rule 702 of the Federal Rules of Evidence.9 The second vector, which points in the opposite direction, is characterized by the uniqueness of the trial setting, the "assist the trier" standard,10 and flexibility (coupled with its rejection of "general acceptance" as an absolute sine qua non of admissibility for scientific expertise)."

Even as it became reasonably clear that the effect of the Daubert decision in regard to scientific testimony was to raise the bar for admission, 12 two general schools of thought about the "true meaning of Daubert" in regard to "non-scientific" expertise emerged. The first school saw Daubert as essentially a general construction of Rule 702 and the judge's systemic gatekeeping duties in regard to the sufficient reliability of all proffered expert testimony. To members of this school, Daubert's particular expositions about scientific evidence were important as guides to the kind of reliability that ought to be required of all expertise, even if the so-called "Daubert factors" (which the Daubert opinion itself said were neither sine qua nons themselves, nor exhaustive) applied most powerfully to the products of the conventional sciences. People of this persuasion have, under the banner of Daubert, tended to call upon courts to examine proffered claims o fexpertise specifically and critivally and have tended to advocate for generally rigorous standards of reliability as a condition of admissibility.

group which supervises accreditation (and an expert's membership in it) is taken as a sufficient warrant to infer reliability for admissibility purposes. In the courts, these usually conflated approaches" have been especially prevalent in regard to the products of "forensic science" in criminal cases. Unfortunately for their adherents, the Supreme Court's decision in Kumho Tire Co. v. Carmichael 16has pretty much destroyed the tenability of these approaches.17

I could not write a more elegant or efficient summary of circumstances involved in the Kumho Tire case than that of the Reporter of Decisions in the Syllabus:

determining the reliability of a particular scientific theory or technique... and found that those factors argued against the reliability of Carlson's methodology. On the plaintiffs'' motion for reconsideration, the court agreed that Daubert should be applied flexibly, that its four factors were simply illustrative, and that other factors could argue in favor of admissibility. However, the court affirmed its earlier order because it found insufficient indications of the reliability of Carlson's methodology. In reversing, the Eleventh Circuit held that the District Court had erred as a matter of law in applying Daubert. Believing that Daubert was limited to the scientific context, the court held that the Daubert factors did not apply to Carlson's testimony, which it characterized as skill - or experience based.18