Judicial Application of Daubert to Psychological Syndrome and Profile Evidence: A Research Note.

Abstract

The authors present previously unreported results from a nationwide survey (N ϭ 325) of state trial judges (S. I. Gatowski et al., 2001) that was conducted pre-Kumho. The authors report how the 1993 Daubert guidelines were applied to psychological syndrome and profile evidence, and the impact of the decision on the admissibility of such evidence. They found that judges' views of and experience with psychological testimony varied widely and that most judges neither understood nor applied the more technical Daubert guidelines, such as falsifiability and error rate, when assessing psychological evidence. Overall, the findings suggest that Daubert's impact on the admissibility of psychological syndrome and profile testimony is negligible and that most judges are more comfortable with pre-Daubert standards when this type of testimony is proffered.Psychological testimony has been controversial since initial efforts to offer such opinions in court (Smith, 1989;Yuille, 1989) and has become even more problematic with the dramatic increase in the use of such testimony (Faust & Ziskin, 1988). The use of psychological syndromes and profiles in courtroom testimony has been problematic for decades, as indicated by a

Attorney beliefs concerning scientific evidence and expert witness credibility

“…In essence, the acceptance of such data is confirmatory in nature, in that it is privileged when it supports the fact finder's preconceived conclusion, but subordinated when the data is inconsistent with the preferred conclusion (La Fond & Durham, 1992). In addition, legal standards that are in place as an attempt to regulate social science evidence in court may be falling short due to the common disinclination to apply these standards to what has been deemed "soft psychological evidence" (Dahir et al, 2005;Edens et al, 2012, p. 3). Because of the common proclivity toward perceiving social science as "soft", some decision makers may be less likely to consider this type of evidence as comparable to what may be considered "hard" or natural science.…”

Judicial gatekeeping and the social construction of the admissibility of expert testimony

“…These findings are also consistent with the findings of previous research. Gatowski and colleagues found that the judges in their sample felt that scientific knowledge could be distinguished from technical or other specialized knowledge, and the judges subsequently characterized several different categories of evidence as such (2001; see also Dahir et al, 2005). Gatowski et al (2001) reported that judges believed this determination should be made ''on a case-by-case basis, depending on the nature of the evidence proffered, the purpose for which the evidence is proffered, the qualifications of the expert, and existing precedents'' (p. 449).…”

“…Gatowski and colleagues surveyed 400 state trial court judges pre-Joiner about their use of the Daubert guidelines and their views about whether certain types of evidence were scientific, technical, or other specialized knowledge (2001; see also Dahir et al, 2005;. They found that 61% of the judges in their sample felt that scientific knowledge could be distinguished from technical or other specialized knowledge, and subsequently characterized several different categories of evidence as such.…”

The Roles of Scientific and Clinical Epistemologies in Forensic Mental Health Assessments

“…These difficulties appear to inhibit legal challenges to scientific testimony and may be why legal decisions involving psychological evidence are infrequently based on such challenges (Dahir et al 2005;Kane 2007a; Redding and Murrie 2007). Faced with disputing scientific experts, judges and juries are likely to be in the same position as they are when faced with disputing clinicians: relying largely on their subjective impressions or pre-existing beliefs.…”