We the people: juries, not judges, should be the gatekeepers of expert evidence.

• Author: Pikus, Krista M.

"I believe there are more instances of the abridgement of the freedom of the people, by gradual and silent encroachments by those in power, than by violent and sudden usurpations. "

--James Madison, 1788 (1)

INTRODUCTION

On August 18, 2007, Matthew Valente became paralyzed below the waist with partial paralysis to his upper body from a golf cart accident. (2) At the time of the accident, Valente was eighteen years old and working as a cart and range attendant at La Tourette Golf Course on Staten Island. (3) Valente's work responsibilities included driving and transporting golf carts. La Tourette properly trained Valente on how to operate the golf carts. On the day of the accident, Matthew was driving an E-Z-Go golf cart manufactured by Textron. (4) The golf carts did not have seatbelts or four-wheel brakes. (5) Valente was driving on the cart path when his hat blew off. (6) He applied the brakes, turned the wheel slightly, and the golf cart fishtailed, rolling over onto its passenger side, leaving Valente with a spinal fracture and paralyzed. (7)

Valente and his father brought a products liability suit against the manufacturer of the golf cart. (8) Despite his efforts, Valente's case never made it to a jury. (9) Nevertheless, Valente had his "day in court" when the judge conducted a hearing on the reliability of his expert evidence. (10) But that "day in court" consisted of findings made solely by a judge, not by a jury. (11)

The Framers of our Constitution considered the right to a trial by jury to be more than just a fundamental right--it was an essential safeguard against tyranny. (12) Thomas Jefferson said he considered trial by jury "the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution." (13) This right acted as a balance of power between the people and their government. (14) Approximately two hundred years later, Chief Justice Rehnquist proclaimed, "[t]he founders of our Nation considered the right of trial by jury in civil cases an important bulwark against tyranny and corruption, a safeguard too precious to be left to the whim of the sovereign." (15) Indeed, the U.S. Constitution does not contain a "sovereignty" clause. (16) Rather, the first words in the Preamble of the Constitution are: "We the People." (17)

At the time of the founding, Americans considered jury service as a form of political power. (18) This form of political power has dramatically plummeted since then. (19) In 1962, trials resolved approximately twelve percent of federal civil cases. (20) In 2002, that number had dropped to less than two percent. (21) One factor contributing to this significant decrease in trials is the increasing popularity of alternative dispute resolutions. (22) For those who choose to go to trial, the chance of actually getting the case before a jury is still very rare due to various procedural obstacles. (23) In addition to these procedural obstacles, there is an increasing trend in the law of taking decisionmaking power away from the jury and placing it into the hands of the judge. (24)

The implication of reduced jury authority is evident in the recent case, Valente v. Textron, Inc., (25) discussed above. The judge granted summary judgment for the defense after he excluded Valente's expert evidence following a Daubert (26) hearing on the reliability of the methods the expert used in arriving at his conclusions. (27) Since Daubert and its progeny reformed the standards on expert evidence, (28) every case involving an expert witness requires the judge to adjudicate the reliability of the expert's methods. (29) The Daubert hearing in Valente v. Textron, Inc. was thus not before a jury, but only the judge. (30) Valente appealed his case to the Second Circuit asserting that the judge abused his discretion in excluding the expert evidence. (31) The Second Circuit held that the judge's thoughtful and thorough explanation for excluding the evidence demonstrated that he acted within his discretion. (32)

The judge should not have this discretion in the first place. Rather, a jury should decide the reliability of the expert's testimony. (33) While the judge may determine if the proponent of the expert testimony laid enough foundation to establish the witness's qualifications as an expert since it presents questions of law, (34) the jury should determine the reliability of the methods the expert used since it primarily entails questions of fact. (35)

This Note urges restoration of the proper balance of power (36) between judges and juries regarding expert evidence. Our justice system has steadily moved away from letting juries decide important questions of fact and toward putting the decisionmaking power into the hands of judges. (37) The recent developments in evidence law, requiring judges to act as the "gatekeepers" of expert evidence, present significant obstacles for plaintiffs attempting to get cases to a jury. (38) This newer standard in expert evidence is a violation of the foundational precept in American jurisprudence that the people should be the sovereign, not the judge. (39)

Part I discusses the history and development of jurisprudence regarding jury decisionmaking. Part II discusses the development of jurisprudence regarding expert evidence. Part III discusses the current status and empirical implications of the expert evidence standards. Specifically, it seeks to show the jurisprudential flaws in the Daubert trilogy, which takes fact-finding away from a jury and allows for more judicial activism by policy-driven judges. Finally, Part IV proposes solutions to resolve the flaws of today's expert evidence standard by returning to juries their proper fact-finding authority and limiting judicial discretion. Practical and theoretical implications are discussed.

1. HISTORY AND JURISPRUDENCE OF JURY DECISIONMAKING IN AMERICA

   One of the central tenets in American jurisprudence is the right to a trial by jury. (40) This right to be tried by the people became a symbol of the overthrown power of the king. (41) The Framers saw this right as such a critical aspect of ensuring equality and justice that it appears multiple times in the Bill of Rights. The Fifth Amendment states that "[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury." (42) The Sixth Amendment similarly states that " [i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury. " (43) Additionally, the Seventh Amendment proclaims, " [i]n Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved." (44)

   1. Development of the Right to Serve on a Jury

      Even though the right to a jury trial is a critical and fundamental right, the right to serve on a jury was not extended to all on an equal basis until recently. In 1879, the Supreme Court in Strauder v. West Virginia (45) held that the Equal Protection Clause of the Fourteenth Amendment applied to the right of a trial by jury (46) and that service on a jury cannot be limited by race. (47) In that same year, the Supreme Court decided Virginia v. Rives, (48) holding that the right to be considered for jury service was distinct from the right to serve on a jury. Accordingly, blacks and minorities were frequently excluded from consideration for jury service. Such discrimination continued until the civil rights movement when more explicit steps were taken to eliminate such discrimination. (49) In 1986, the Supreme Court held in Batson v. Kentucky (50) that the Equal Protection Clause forbids prosecutors from challenging potential jurors solely on account of their race. (51) In 1994, the Supreme Court extended the Batson rule to gender in J.E.B. v. Alabama ex rel. T.B. (52)

      Women faced similar struggles in attempting to gain an equal right to serve on a jury. Women could not serve on juries on equal terms as men until the mid-1970s. (53) After such efforts to secure equal rights regarding jury service, one would expect that such a right would be treasured and greatly appreciated today. However, the opposite has occurred. Courts have given to judges much of the decisionmaking power originally held by juries. (54) The importance of the right to a trial by jury and allowing the people to act as the fact-finder, however, remains a critical safeguard of the foundational precepts of our Constitution.

   2. Jurisprudential Theories of Jury Decisionmaking

      Our system of government is based on the idea that the people are sovereign. (55) The idea of popular sovereignty is demonstrated by the structure of our Constitution in Articles I and II, which provide that the people elect representatives for the legislature (56) and elect a President. (57) The President then nominates individuals for the Supreme Court that must be confirmed by the Senate. (58) Jury service is another mechanism of popular sovereignty, as people sit on juries. (59) The right to a trial by jury of one's peers is an integral part of our legal system. (60)

      The basis of jury decisionmaking in American jurisprudence is that juries provide a strong check against governmental oppression. (61) One of the primary structural principles of our Constitution that prevents government oppression is the separation of powers. (62) James Madison wrote in the Federalist Papers that " [t] he accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny." (63) Safeguards are put in place so that each branch acts as a check and balance on the other branches. (64) The power of judicial review implied in Article III of the Constitution (65) is one example of the principle of checks and balances. (66)

      Some have argued that judicial review is at...