Academic journal article The Journal of Mind and Behavior.
Expert testimony has troubled judges for centuries. Since judges rarely have backgrounds in science, having to tell genuine knowledge from hokum is frequently a challenge, especially in this era of increasing courtroom use of expert testimony.
In this book of "interdisciplinary essays," Susan Haack, renowned epistemologist, attempts to teach judges something about how to evaluate scientific testimony by focusing on the intersection of law, philosophy, and science, invoking concepts of inquiry and truth as they are used in all three disciplines. The reason it is up to judges to decide whether expert testimony is genuine knowledge that would be helpful to the jury is the Supreme Court's Daubert decision,1 which placed the gatekeeping task of evaluating scientific validity on federal judges.
The Court's subsequent decisions elucidated the gatekeeping requirement;2 and the amendment to Federal Rule of Evidence codifies these decisions. Based on the judge's duty to assess relevance in determining admissibility, the Daubert Court told federal judges to engage in a "preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and whether that reasoning or methodology properly can be applied to the facts in issue.
Daubert linked the idea of reliability to helpfulness: something cannot be helpful to the jury if it is not reliable - meaning trustworthy.
Rule as amended tries to give guidance to the trustworthiness inquiry. It provides that a qualified witness may testify if it would be helpful to the trier of fact usually the juryand "the testimony is based on sufficient facts or data.
Is a reliable method just one that gives the same results if repeated? Does reliably applied mean only that the protocols were followed?
Apr 2, Book Reviews. Law in Context. Evidence. Matters. Science, Proof, and Truth in the Law. HAA. CK. Evidence Matters. §. SUSAN HAACK.
And how would one know? None of these questions is addressed, either by the amended rule or by Daubert, so most judges continue to use the Daubert factors as a checklist10 in determining evidentiary reliability. Moreover, the formalistic way many judges apply these factors and their tendency to "transmute scientific subtleties into formalistic jargon" is a cause for concern, especially when dealing with causation concepts.
The Daubert case, in placing the onus of gatekeeping expert testimony on federal judges, attempted to link admissibility of expert testimony to relevance. Unless empirical testing can show what it purports to show, it cannot be relevant to any issue in a case.
According to Daubert, once the expert has demonstrated the basis of her testimony by explaining how her testing, methodology, error rate, exposure to critique and reasoning process lead to her conclusion, she ought to be permitted to testify.
Other experts may well disagree, and as long as their disagreement is based on a rational basis, the jury should hear that too. In other words, while the judge must determine relevance, it is not up to the judge to determine who is right.
That is the jury's province. Of course, as Learned Hand noted many years ago, that amounts to making the jury decide matters about which doctors disagree. An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while. Read preview. Read preview Overview. Cook LFB Scholarly, Spann New York University Press, The Journal of Negro Education, Vol. The National Public Accountant, Vol.