TABLE OF CONTENTS INTRODUCTION FEATURES OF F.R.E. 706 CHALLENGES EXPERTS POSE IN THE ADVERSARIAL SYSTEM SENTIMENT FOR NEUTRAL EXPERTS VALIDATION FROM THE COURTS CONCLUSION "The idea of expert witness [es] who are not beholden to the parties who can provide information to judges and juries on technical issues, I think is a terrific opportunity worth exploring."--Judge Richard A. Posner, Seventh Circuit of the U.S. Court of Appeals (1)
Experts play an increasingly important role in the trial process. (2) The average civil trial includes approximately 3.7 to 4.1 experts (3) and in general, the testimony that experts provide at trial is influential. (4) Juries find experts to be credible and report being influenced by the expert testimony they hear. (5) At the same time, there is a growing trend that when parties in a lawsuit hire experts, juries perceive the experts' cloaks of objectivity as weakened or non-existent. (6) Put another way, experts lose credibility in the eyes of the jurors "when experts are too much of an advocate for a party." (7) Rather than viewing experts as objective suppliers of truthful information--information that is beyond the ken of the average juror--many jurors view experts as "hired guns" willing to say whatever the party paying them wants them to say if the compensation is enough. (8) Fair or not, such a perception damages the justice system because it feeds into the view that verdicts can be bought by those with the largest purse strings. This paper will encourage judges to exercise their inherent authority to appoint experts. Federal Rule of Evidence (F.R.E.) 706 provides for court-appointed experts to assist judges in their gatekeeping role of admitting only reliable expert testimony for the jury to weigh in deliberation. (9)
In a trilogy of United States Supreme Court cases beginning in 1993 with Daubert v. Merrell Dow Pharmaceuticals, Inc., (10) the Court has specifically entrusted trial judges with the role of gatekeepers of expert testimony to ensure that unreliable evidence is kept away from jurors. (11) The Supreme Court in Kumho Tire Company, Ltd. v. Patrick Carmichael (12) "conclude[d] that the trial judge must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable." (13) The Kumho Court further held that "[t]he objective ... is to ensure the reliability and relevancy of expert testimony. It is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." (14) The Court went on to say: "[a]nd whether the specific expert testimony focuses upon specialized observations, the specialized translation of those observations into theory, a specialized theory itself, or the application of such a theory in a particular case, the expert's testimony often will rest 'upon an experience confessedly foreign in kind to [the jury's] own.'" (15) The trial judge is expected to ensure that both scientific and technological testimony is reliable and relevant to assist the jury in evaluating "whether the testimony reflects scientific, technical, or other specialized knowledge." (16) The Kumho Court asserted, "[i]n sum, Rule 702 grants the district judge the discretionary authority, reviewable for its abuse, to determine reliability in light of the particular facts and circumstances of the particular case." (17)
In General Electric Co. v. Joiner, (18) the Supreme Court noted that the Federal Rules of Evidence left "in place the 'gatekeeper' role of the trial judge in screening such evidence." (19) In their gatekeeping role, trial judges are expected to assess the relevance and reliability of proffered expert evidence and reject specious or junk science to prevent confusion of juries. (20) This evaluation process requires judges to understand various scientific and technical principles. However, the "current practice and training of the judiciary may not sufficiently prepare [judges] to perform the role of scientific evaluator." (21) Expert testimony by forensic scientists can be both highly technical and highly persuasive.
On the one hand, judges have admitted forensic science testimony for decades in such areas as fingerprinting, handwriting, bite marks, and other domains, both before and after the judicial gatekeeping responsibility was established in Daubert. (22) One might argue then that judges need not reinvent the wheel in each case where a Daubert objection is raised to some item of forensic science evidence because courts have considered the scientific merits of this type of evidence many times before. On the other hand, academicians outside of forensic science have pointed to a pervasive "lack of standards, research, and established error rates" in the forensic sciences. (23) These and other concerns are detailed in a 2009 National Academy of Sciences (NAS) report on the state of non-DNA forensic sciences entitled "Strengthening Forensic Science in the United States: A Path Forward" (NAS Report). (24)
The NAS Report suggests that many assumptions and foundational principles in the forensic sciences have not yet been sufficiently demonstrated to be reliable. (25) The NAS committee found that "although there are many dedicated and skilled forensic professionals, the quality of practice in the forensic disciplines varies widely and the conclusions reached by forensic practitioners are not always reliable." (26) Specifically, judges and lawyers reviewing this NAS Report will hopefully realize that the vast amount of improvement needed in the forensic science disciplines with regard to establishing and testing techniques and methodologies used "is neither pro-defense nor pro-prosecution; it is, rather, both pro-science and pro-justice." (27)
Most recently, the President's Council of Advisors on Science and Technology (PCAST) issued a report in September 2016 following the lead of the NAS Report, which unveiled its study's results on additional steps needed to ensure the validity of forensic science in the United States. (28) PCAST, in its letter to the President of the United States, "aimed to help close these gaps for a number of forensic 'feature-comparison' methods--specifically, methods for comparing DNA samples, bitemarks, latent fingerprints, firearm marks, footwear, and hair." (29) PCAST found that two important gaps exist regarding the validity of forensic sciences in the United States' legal system: "(1) the need for clarity about the scientific standards for the validity and reliability of forensic methods and (2) the need to evaluate specific forensic methods to determine whether they have been scientifically established to be valid and reliable." (30)
Senior Judge Harry Edwards of the U.S. Court of Appeals for the D.C. Circuit and Jennifer Mnookin, Dean of UCLA School of Law, opine that the PCAST Report "persuasively explains that expert evidence based on a number of forensic methods--such as bite mark analysis, firearms identification, footwear analysis and microscopic hair comparisons--lacks adequate scientific validation." (31) These scholars support PCAST's "plausible, workable test for validity" which entails members of the forensic disciplines conducting empirical testing for error rates and accuracy as to conditions existing in "the real world." (32)
Forensic science practitioners will benefit from the results of such legitimate studies. They will gain a better understanding of "what they do not know about the limits of their disciplines, and it will cause them to be more forthright in explaining these limits to judges and jurors." (33) By making strides in validity and reliability, the forensic science disciplines will eliminate the wide variability in "reliability, error rates, reporting, research foundations, general acceptability, and published material." (34) Both of these reports aim to make judges and lawyers aware that the levels of scientific development and evaluation vary substantially among forensic science disciplines. (35) While the solution of a "long-term research agenda will require a thorough assessment of each of the assumptions that underlie forensic science techniques," forensic practitioners "presented with a standardized set of realistic training materials that vary in complexity" can begin to address these concerns immediately. (36)...