Serencipitous Timing: the Coincidental Emergence of the New Brain Science and the Advent of an Epistemological Approach to Determining the Admissibility of Expert Testimony - Edward J. Imwinkelried

• Jurisdiction: United States,Federal
• Publication year: 2011
• Citation: Vol. 62 No. 3

Serendipitous Timing: The Coincidental Emergence of the New Brain Science and the Advent of an Epistemological Approach to Determining the Admissibility of Expert Testimony

by Edward J. Imwinkelried*

"Mind is the great leveler of all things."

-Daniel Webster¹

This is an exciting time for students of the human brain. Worldwide there has never been such intense interest in and extensive research into the brain. Techniques for studying the brain are proliferating. By way of example, one group of scientists is employing electroencephalography (EEG) as a tool to investigate the brain's operations.² Some of these researchers have utilized EEG to identify brain damage; others, including Dr. Lawrence Farwell of Brain Fingerprinting Laboratories, are endeavoring to adapt EEG technology to the detection ofdeception.³ Another group of scientists has focused its research on BOLD fMRI (Blood Oxygen Level Dependent functional Magnetic Resonance

* Edward L. Barrett, Jr. Professor of Law, University of California Davis School of Law. University of San Francisco (B.A., 1967; J.D., 1969).

1. Daniel Webster, The Bunker Hill Monument Orations 22 (Albert F. Blaisdell ed., Clark & Maynard 1885).

2. Fundamental Neuroscience 1389 (Michael Zigmond et al. eds. 1999).

3. See, e.g., Brain Fingerprinting Laboratories, www.brainwavescience.com/About-Farwell.php (last visited Feb. 10, 2011).

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Imaging).⁴ Some researchers at Washington University have adapted the technique to identify the verbal center of patients' brains.⁵ As in the case of EEG, others, notably Cephos Corporation⁶ and No-Lie MRI,⁷ are using fMRI as a type of lie detector. The volume of literature in the area is growing exponentially. At the beginning of this century, there were already several published research studies on fMRI alone.⁸ The forthcoming third edition of the Federal Judicial Center's Reference Manual on Scientific Evidence will include a chapter devoted to the brain sciences.⁹

Although the mention of the courtroom use of brain science understandably brings to mind the possibility of introducing testimony based on such science, the courtroom impact ofbrain science will not be limited to its evidentiary use. The rules of evidence come into play when a litigator uses information for an adjudicative purpose, that is, to help a trier of fact decide the historical facts of the instant case.¹⁰ If the litigator proffers brain science data to help the trier determine the who, what, which, when, where, and why of the pending case, the litigator obviously must comply with formal evidentiary rules such as the limitations on expert opinion testimony. The third part of this article discusses several adjudicative uses of brain science data.

However, a litigator may put brain science information to other, very different uses. For instance, the litigator may proffer the information for the legislative or normative purpose of persuading the judge to formulate

4. See generally Richard B. Buxton, Introduction to Functional Magnetic

Resonance Imaging Principles and Techniques (2002); Scott A. Huettel et al., Functional Magnetic Resonance Imaging (2004).

5. Gerry Everding, Better Imaging Helps Surgeons Avoid Damage to Language Functions, Newsroom, Washington University St. Louis, Nov. 4, 2003, http://news. wustl.edu/news/Pages/494.aspx.

6. Cephos Corp., http://www.cephoscorp.com (last visited Feb. 10, 2011).

7. No Lie MRI, Inc., http://noliemri.com (last visited Feb. 10, 2011).

8. For a listing of some of these studies, see Kathleen M. O'Craven & Nancy Kanwisher, Mental Imagery of Faces and Placed Activates Corresponding Stimulus-Specific Brain Regions, 12 J. Cog. Neuroscience 1013 (2000).

9. The third edition of the Reference Manual on Scientific Evidence is expected to be issued in 2011. See Comm. On Science, Tech., and Law, The Nat'l Academics, http://sites.nationalacademies.org/pga/stVdevelopment_manuaVindex.htm (last visited Feb.

10, 2011).

10. See Fed. R. Evid. 201 Advisory Committee's Note; Kenneth Culp Davis, A System of Judicial Notice Based on Fairness and Convenience, in Perspectives of Law: Essays for Austin Wakeman Scott 69, 87 (Roscoe Pound et al. eds. 1964) [hereinafter Davis, A System]; Kenneth Culp Davis, An Approach to Problems of Evidence in Administrative Process, 55 Harv. L. Rev. 364, 404 (1942) [hereinafter Davis, An Approach]; Edward J. Imwinkelried, Expert Testimony by Ethicists: What Should Be the Norm?, 76 Temp. L. Rev.

91, 114-18 (2003).

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a common-law rule,¹¹ determine the proper construction of a statute,¹² or frame a constitutional doctrine.¹³ When the litigator puts information to a normative use, the formal rules of evidence are inapposite.¹⁴ As James Bradley Thayer famously put it, the formal rules are "the child of the jury system;"¹⁵ the common law developed the rules to compensate for lay jurors' supposed deficiencies in critically evaluating evidence. Those policy concerns are inapplicable when the decision-maker is the judge rather than the jury. If a judge is performing an essentially legislative function, the technical evidentiary rules should not constrain his or her ability to gather and consider relevant information.¹⁶

In her presentation at this Symposium, Professor Susan Bandes discussed the propriety of imposing criminal responsibility for negligent conduct.¹⁷ As she noted, some commentators have argued that criminal sanctions ought to be imposed only for conduct involving "conscious choice." She argued that modern brain science undermines any simplistic distinction between the conscious and the subconscious. More specifically, she contended that to an extent persons can access their subconscious and that consequently, the imposition ofcriminal sanctions could influence and deter even negligent behavior.¹⁸ A litigator pressing this argument on a judge would clearly be using brain science data for a normative or legislative purpose and hence would not have to comply with formal evidentiary strictures.

Those strictures, though, are the focus of this Article. This Article deals with the adjudicative use of brain science data. At the same time that the scientific community is concentrating more attention on brain science, the legal community has been fashioning a new approach to determining the admissibility of expert testimony, including testimony based on the latest theories and techniques being developed by brain scientists. In 1923 the United States Court of Appeals for the District of Columbia Circuit rendered its famous decision in Frye v. United States.¹"⁹ The court in Frye announced that to introduce testimony

11. See Davis, A System, supra note 10, at 87.

12. See id.; see also 2 Kenneth C. Davis & Richard J. Pierce, Jr., Administrative Law Treatise § 10.6, at 154 (3d ed. 1994).

13. Davis, A System, supra note 10, at 87; Davis, An Approach, supra note 10, at 404.

14. Imwinkelried, supra note 10, at 114-27.

15. Fed. R. Evid. 104 Advisory Committee's Note.

16. See id.; Imwinkelried, supra note 10, at 114-18.

17. The Brain Sciences in the Courtroom, A Symposium of the Mercer Law Review, 62 Mercer L. Rev. 769, 811 (2011) (Susan Bandes's title in the Symposium program was The

Implications ofNeuroscience for Criminal Negligence Liability).

18. Id. at 815-17.

19. 293 F. 1013 (D.C. Cir. 1923).

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based on a scientific theory or technique, the proponent had to lay a foundation establishing that the theory or technique had "gained general acceptance in the particular field in which it belongs."²⁰ Over the course ofthe next halfcentury, the general acceptance test evolved into the overwhelming majority view in the United States.²¹ By the mid-1970s the Frye test had become the governing standard in federal court as well as in forty-five states.²²

However, in 1993 in Daubert v. Merrell Dow Pharamaceuticals, Inc.,²³ the Supreme Court of the United States ruled that the general acceptance test was no longer good law in federal court.²⁴ The Court reasoned that the enactment of the Federal Rules of Evidence in 1975 has impliedly overturned Frye²⁵ The Court stated that the text of Rule 402²⁶ had the effect of abolishing uncodified common-law exclusionary rules of evidence.²⁷ Writing for the majority, Justice Blackmun professed that he could not find any statutory language that could reasonably bear the interpretation that it preserved a general acceptance test; instead, the Justice derived a new, empirical validation test from the text of Rule 702.²⁸ That rule refers to expert testimony based on "scientific, technical, or other specialized knowledge."²⁹ Drawing on several amicus briefs submitted by scientists and scientific organizations, the Justice adopted a methodological definition of the expression, "scientific . . . knowledge."³⁰ The proponent must show that the theory or technique qualifies as "reliable" scientific knowledge.³¹ The decisive question is whether the proponent has demonstrated that the expert's theory or technique has been empirically validated, that is, whether it

20. Id. at 1014.

21. 1 Paul C. Giannelli & Edward J. Imwinkelried, Scientific Evidence § 1.06, at 13 (4th ed. 2007).

22. Betty R. Steingass, Comment, Changing the Standard for the Admissibility of Novel

Scientific Evidence: State v. Williams, 40 Ohio St. L.J. 757, 769 (1979).

23. 509 U.S. 579 (1993).

24. Id. at 597.

25. See Daubert, 509 U.S. at 597; see also Fed. R. Evid. 702.

26. Fed. R. Evid. 402 ("All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority.").

27. See Daubert, 509 U.S. at 587-88; Edward J. Imwinkelried, Federal Rule ofEvidence 402: The Second Revolution, 6 Rev. Litig. 129, 129 (1987).

28. See Daubert, 509 U.S. at 588-92.

29. Fed. R. Evid. 702.

30. Daubert, 509 U.S. at 589-90; Edward J. Imwinkelried, ...