SC Lawyer, Nov. 2003, #4. How do you know what you know? A judicial perspective on Daubert and Council/Jones factors in determining the reliability of expert testimony in South Carolina.

AuthorBy the Hon. Roger M. Young

South Carolina Lawyer

2003.

SC Lawyer, Nov. 2003, #4.

How do you know what you know? A judicial perspective on Daubert and Council/Jones factors in determining the reliability of expert testimony in South Carolina

South Carolina LawyerNovember. 2003How do you know what you know? A judicial perspective on Daubert and Council/Jones factors in determining the reliability of expert testimony in South CarolinaBy the Hon. Roger M. YoungCourts are increasingly tasked with determining the reliability of new scientific and highly technical methods in a world that seems exponentially more complex on a daily basis. At the same time, courts are not particularly receptive to re-examining methods or techniques that have been unchallenged for decades. After all, the law is built on precedent and stability. But like it or not, judges have these duties and so must find ways to help them navigate in unfamiliar and uncharted waters.

Judges should understand they are not asked to become experts themselves. However, judges are required to make a threshold determination of the relevance and reliability of expert testimony and evidence. To accomplish this, they must acquire tools to perform the gatekeeping function of deciding what evidence can be considered by a jury. Or stated in more familiar terms, bad scientific or technical evidence is irrelevant evidence and therefore is not admissible as evidence.

Judges should not be overly intimidated when faced with issues involving science. Most judges and lawyers are trained to be, and by instinct often are, skeptics. Good scientists are skeptics as well. Both seek answers to the same basic question: "Can you prove what you say?" Richard Feynman, the late Nobel Prize physicist, once stated, "Science is the belief in the ignorance of experts." If scientists can question scientific facts, why can't judges and lawyers? There is nothing sacred about scientific facts. Every scientist knows that progress is made by challenging existing assumptions. Recall that it was once accepted as fact by the "experts" of the time that the earth was flat and that the universe revolved around it. Certainly there are, at any given time, facts that the current scientific community deem "established." However, science progresses through periods where puzzles and problems continue to arise in response to challenges of established facts. These anomalies build to the point where the established world-view, or paradigm, is challenged. Eventually the paradigm "shifts" as the old is replaced with the new. When examining scientific "facts," proper methodology helps ensure that the testimony presented is not raw, subjective observations, but rather represents the best evidence of what most scientists conclude is objective truth.

How then does a court decide whether scientific or technical evidence should be considered by a jury? One approach to answering this difficult question is to force the expert to answer one question: "How do you know what you know?"

To help interpret the expert's answer to this question and to know when an expert is giving an opinion based upon a reliable foundation of information, the U.S. and South Carolina Supreme Courts provide a broad starting reference point. Until the federal courts amended Rule 702 in 2000, the federal and South Carolina versions of the rule were identical. (Federal Rule 702 was amended in December 2000 to reflect the changes brought about by Daubert, although it does not enumerate the Daubert factors in the amendments.) The old federal and current state rule provides that "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." As a threshold matter, judges must make a determination that (1) the expert is qualified, (2) the evidence will assist the trier of fact and (3) the underlying...

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