Keeping the reformist spirit alive in evidence law.

• Author: Saltzburg, Stephen A.
• Position: Tribute to Judge Edward R. Becker, Third Circuit Court of Appeals

"To state the facts of the cases, the decision, and the reasoning of his opinion will not show the overthrow of old doctrine.... Instead, it will show the application of existing doctrines with wisdom and discretion; an application that does not leave those doctrines wholly unaffected, but one that carries on their evolution as is reasonably required by the new facts before the court. When [he] is through, the law is not exactly as it was before; but there has been no sudden shift or revolutionary change."(1)

These are the words that Professor Arthur Corbin used to describe the judicial work of Justice Benjamin Cardozo, one of the preeminent jurists of the twentieth century. Justice Cardozo was a superb judicial craftsman in the grand tradition of the common law.(2) Drawing on accumulated experience,(3) he effected reform through evolutionary change in the law.(4) Even at this point in his career--hopefully well before his retirement---Chief Judge Edward Becket has established himself as a reformer following a path strikingly similar to Cardozo's.

Judge Becker has been a reformer both as a district court judge and as a court of appeals judge. He has made his mark in many areas of the law, one of which is evidence. It has been a joy for us to teach with, talk with, and learn from Judge Becker. He has not only reformed the law of evidence, he has seen problems that others have missed and provided answers to questions that had not been asked before. While many judges tire of the routine of deciding cases and find that many legal issues become repetitive and uninteresting, Judge Becker is virtually unique in his willingness to consider each case and each issue as though it were his first. We see this clearly not only in his opinions--where he has brought his incredible energy, insight, and judgment to clarify and advance the law of evidence--but in his other work as well.

1. JUDGE BECKER'S OPINIONS

   As a district court judge, Judge Becker demonstrated an interest and skill in handling evidence issues most clearly in the Japanese Electronics Litigation, in which he filled much of a volume of the Federal Supplement with three extraordinary evidence opinions.(5) Those opinions were a sign that Judge Becker was willing, if not eager, to tackle difficult evidentiary issues head on. He was not interested in deferring decisions or avoiding them; he addressed more evidence issues in those three opinions than, to our knowledge, any judge ever has before or since.

   The first opinion is one of the most comprehensive analyses of the reliability problems attendant to public records.(6) Indeed, we know of no other case in which a trial or appellate judge has been as discerning and as persuasive in dealing with the hearsay exception for public records set forth in Federal Rule of Evidence 803(8)(C).

   His second opinion addressed a number of evidentiary issues and examined them more carefully than any other judge had.(7) For example, Judge Becker ruled that only admissible evidence can be used to establish authenticity,(8) a proposition that seems clearly correct but rarely recognized in other judicial opinions. Another example is Judge Becker's treatment of parent and subsidiary corporations. He sets forth guidelines on when and whether a subsidiary's statements can be introduced against the parent as admissions.(9) Once again, the analysis is as good or better than any before or since.

   In his third opinion in the trilogy,(10) Judge Becker demonstrated how painstakingly he, as a trial judge, would screen expert opinions, particularly the bases of expert testimony. The opinion is one of the most sophisticated analyses of Federal Rule of Evidence 703 that has been done to date.(11) Judge Becker demonstrates so well his ability to distinguish the wheat from the chaff--between useful economic testimony that assists a trier of fact in understanding corporate behavior and spurious economic testimony that purports to be able to conclusively determine whether a conspiracy existed.

   The third opinion in the Japanese Electronics Litigation required Judge Becker to determine whether experts could rely upon data which he had earlier excluded as unreliable. Judge Becker dealt deftly with the interface between hearsay and expert testimony and noted the close relationship between the hearsay exception for opinions contained in trustworthy public reports (Federal Rule of Evidence 803(8)(C)) and the standards regulating expert opinion in Article VII of the Federal Rules of Evidence. Implicit in the trustworthiness requirement in both sets of rules is the right of the opponent to attack the basis of the expert's opinion. Judge Becker then conducted a detailed, in-depth analysis of the reliability of various hearsay passages relied upon by the experts. That analysis led him to exclude several of the passages in the proffered expert reports. Although the Court of Appeals for the Third Circuit later rejected Judge Becker's construction of Rule 703,(12) Judge Becker would be vindicated. Ironically, the Third Circuit criticized Judge Becker's analysis because, in effect, he had assumed the gatekeeper role that the Supreme Court would later mandate. The Court of Appeals asserted that "[t]he proper inquiry is not what the court deems reliable, but what experts in the relevant discipline deem it to be."(13) Ten years later, the Supreme Court would expressly direct district court judges to inquire into the reliability of proffered scientific testimony and to reject the notion that the dispositive question is "what experts in the relevant discipline deem" reliable.

   As it turns out, the Japanese Electronics Litigation opinions were only the first chapter in Judge Becker's substantial contributions to the law regarding expert testimony. No jurist has had more impact or made a more positive contribution than he has to an understanding of the judicial role in assessing the admissibility of expert opinions. In United States v. Downing,(14) Judge Becker anticipated the Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc.,(15) holding that the traditional, general acceptance test for the admissibility of scientific testimony set forth in the 1923 decision of Frye v. United States(16) was no longer controlling in federal practice.(17) The Downing opinion is a masterful interpretation of Federal Rule of Evidence 702, the main rule governing the admissibility of expert testimony. That rule essentially provides that expert testimony is admissible whenever it would be helpful to the fact-finder. In the following important passage from Downing, Judge Becker interpreted the Rule 702 standard of "helpfulness" as distinct from the traditional standard of "general acceptance":

   Although we believe that "helpfulness" necessarily implies a quantum of reliability beyond that required to meet a standard of bare logical relevance....it also seems clear to us that some scientific evidence can assist the trier of fact in reaching an accurate determination of facts in issue even though the principles underlying the evidence have not become "generally accepted" in the field to which they belong. Moreover, we can assume that the drafters of the Federal Rules of Evidence were aware that the Frye test was a judicial creation, and we find nothing in the language of the rules to suggest a disapproval of such interstitial judicial rulemaking. Therefore, although the codification of the rules of evidence may counsel in favor of a re-examination of the general acceptance standard, on balance we conclude that the Federal Rules of Evidence neither incorporate nor repudiate it.(18) Downing surveyed case law and literature, assessed it with a keen eye, and arrived at a sensible approach that, like Daubert, incorporated the general acceptance analysis into a more refined, flexible, and multifaceted test for reviewing expert testimony.

   Judge Becker described the proper approach to the admissibility of expert testimony in the following words:

   The language of Fed. R. Evid. 702, the spirit of the Federal Rules of Evidence in general, and the experience with the Frye test suggest the appropriateness of a more flexible approach to the admissibility of novel scientific evidence. In our view, Rule 702 requires that a district court ruling upon the admission of (novel) scientific evidence, i.e., evidence whose scientific fundaments are not suitable candidates for judicial notice, conduct a preliminary inquiry focusing on (1) the soundness and reliability of the process or technique used in generating the evidence, (2) the possibility that admitting the evidence would overwhelm, confuse, or mislead the jury, and (3) the proffered connection between the scientific research or test result to be presented, and particular disputed factual issues in the case.(19) This language was clear, cogent, and convincing enough that Justice Blackmun borrowed extensively from Downing in his Daubert opinion.(20) As we look back on Downing, we cannot help but think that the paragraph quoted above sets forth a clearer test for scientific evidence and provides more guidance for trial judges than...