A recent article talks about how unscientific America’s court system is, especially when it comes to things like false confessions, witnesses having false memories, and juror bias. In many trials attorneys for both sides present “scientific evidence” to the jury – whether it’s the testimony of a psychiatrist in a murder trial, the report of an accident reconstructionist in an auto accident case, or a handwriting expert in a forgery case. All of these examples are doing the same thing, at least in concept: presenting the jury with expert scientific testimony about the defendant’s mental state, what happened to cause a car crash, or whether a person could have forged a signature on a document.
Parties in a court case can’t just have any person come to court, call themselves an expert, and then tell the jury that “in their expert opinion” that aliens built the Aztec pyramids. Although we trust (many times wrongly) juries to be impartial, we also don’t expect juries to be experts themselves. So how, exactly, does Florida’s court system decide which expert witnesses are legitimate, and which have no business testifying in court?
A note here: when lawyers talk about whether or not something is “admissible,” it means something very specific: whether or not something can be shown or told to the jury. Often a piece of evidence or a witnesses’ testimony will be presented to the judge at a hearing, and the judge will have to make a call on whether or not the jury gets to see or hear the evidence. If something is “inadmissible” that doesn’t mean it stays out of the trial, it means that the jury doesn’t get to see or hear it because, for one reason or another, the evidence could cause them to reach the wrong result. As you can imagine the issue of whether or not something is admissible causes a lot of fights in court cases.
The Frye or Daubert Standard?
Florida has recently changed the rules on how courts decide whether or not to allow scientific testimony. Up until 2013, Florida used a standard called the “Frye Standard” to determine whether or not scientific testimony could be presented to a jury in trial. Now Florida uses a standard called the “Daubert Standard” which makes it much harder to put a bogus “expert” in front of the jury.
The Frye Standard is pretty simple in concept – if the basis for an expert’s testimony is “generally accepted in the scientific community” then it can be presented to the jury. As long as the scientific community generally accepts it, then the jury is trusted to sort out any other concerns about the expert’s testimony.
This is a pretty loose standard. As long as the side pushing for an expert to testify can show the judge that other people out in the “scientific community” accept the expert’s opinion generally, then the testimony should be admitted.
The Daubert Standard is a more difficult standard for scientific testimony. The Daubert rule says the following:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) The testimony is based on sufficient facts or data;
(c) The testimony is the product of reliable principles and methods; and
(d) The expert has reliably applied the principles and methods to the facts of the case.
To get in front of the jury, Daubert requires that the party wanting to present the expert testimony do the following:
- Show that the expert is qualified as an expert by knowledge, skill, experience, training, or education;
- Show that the expert’s scientific, technical, or other specialized knowledge will help the jury understand the evidence or to determine a fact in issue;
- Show that the expert’s opinion is based on sufficient facts or data;
- Show that the testimony is the product or reliable principles and methods; and
- Show that the expert has actually applied these principles and methods to the facts of the case.
Rather than depending on the jury to decide whether one side’s expert is “more scientific” than the other’s, the Daubert Standard depends on the judge to be the scientist-gatekeeper. Often judges (who aren’t scientists) have to make decisions about how the scientific community perceives the conclusions that an expert will testify to at trial. This sometimes means determining which double-blind study in which scientific journal to believe, all the while knowing that no matter what decision you make will result in an appeal by the losing party. This often results in judges just admitting the evidence, since it’s the best way to insulate the case from an appeal.
The problem is not that courts are “unsceintific” – it’s that our court system is built upon some very old assumptions about juries and judges. It assumes that juries are a color-blind and impartial difference engine that will make decisions without regard to ethnicity, class, gender, sexuality, or any of the other factors that they’re not supposed to consider. It assumes judges are “umpires” and can make accurate decisions not only on difficult issues of law, but difficult and unclear issues of scientific opinion as well.