Asking the gatekeepers: A national survey of judges on judging expert evidence in a post-Daubert world.

Abstract

Drawing on the responses provided by a survey of state court judges (N = 400), empirical evidence is presented with respect to judges’ opinions about the Daubert criteria, their utility as decision-making guidelines, the level to which judges understand their scientific meaning, and how they might apply them when evaluating the admissibility of expert evidence. Proportionate stratified random sampling was used to obtain a representative sample of state court judges. Part I of the survey was a structured telephone interview (response rate of 71%) and in Part II, respondents had an option of completing the survey by telephone or receiving a questionnaire in the mail (response rate of 81%). Survey results demonstrate that judges overwhelmingly support the “gatekeeping” role as defined by Daubert, irrespective of the admissibility standard followed in their state. However, many of the judges surveyed lacked the scientific literacy seemingly necessitated by Daubert. Judges had the most difficulty operationalizing falsifiability and error rate, with only 5% of the respondents demonstrating a clear understanding of falsifiability and only 4% demonstrating a clear understanding of error rate. Although there was little consensus about the relative importance of the guidelines, judges attributed more weight to general acceptance as an admissibility criterion. Although most judges agreed that a distinction could be made between “scientific” and “technical or otherwise specialized” knowledge, the ability to apply the Daubert guidelines appeared to have little bearing on whether specific types of expert evidence were designated as “science” or “nonscience.” Moreover, judges’ “bench philosophy of science” seemed to reflect the rhetoric, rather than the substance, of Daubert. Implications of these results for the evolving relationship between science and law and the ongoing debates about Frye, Daubert, Joiner, and Kumho are discussed.

Judging mechanistic neuroscience: a preliminary conceptual-analytic framework for evaluating scientific evidence in the courtroom

“…First, it is not clear how the standards should be applied. There is a lack of consistency across judicial Preprint Forthcoming in Psychology, Crime and Law opinion on whether scientific research must pass all four criteria or merely meet one or two of them (Gatowski, Dobbin, Richards, Ginsburg, Merlino, & Dahir, 2001 (2001) found that although the majority of U.S. judges surveyed (88%) considered testability/falsifiability to be an important Daubert criterion, only 6% conveyed an adequate understanding of this concept. Scholars (e.g., Gatowksi et al, 2001) also have pointed out that the way that science is understood by judge and jury is often misguided.…”

What do pediatric healthcare experts really need to know about Daubert and the rules of evidence?

“…The United States Supreme Court set the current admissibility standard for expert evidence in the federal courts in 1993 in Daubert v. Merrell Dow Pharmaceuticals Inc., [1], and to date 30 state courts have adopted the Daubert standard [2]. Even in states that have not adopted Daubert, most state court judges report that Daubert has had a powerful influence on their decisions to admit, exclude or limit expert evidence [3].…”

Expert Witness Participation in Civil and Criminal Proceedings

“…9 Critics have voiced concern over judicial discretionary power in admitting experts simply because some judges may lack the requisite scientific or medical background to interpret potentially complex medical issues. 13 Attorneys may request experts to state that their testimony is being given "within a reasonable degree of medical certainty." This rubric is not universally defined and has been interpreted differently by the courts.…”