Applying Daubert and Rule 702 to Historians’ Testimony

From Saginaw Chippewa Indian Tribe of Mich. v. Granholm, 2010 U.S. Dist. LEXIS 9498 (E.D. Mich. Feb. 4, 2010):

The Daubert factors are not particularly helpful in this case. See First Tenn. Bank Nat. Ass'n v. Barreto, 268 F.3d 319, 335 (6th Cir. 2001) (citing United States v. Jones, 107 F.3d 1147, 1158 (6th Cir. 1997)). There is no way to "test" whether the experts' testimony concerning the historical understanding of the treaties is correct. Nor is it possible to establish an "error rate" for historical experts. Although publication, peer review, and general acceptance may be of some relevance to historical testimony, the parties briefs do not demonstrate that they are particularly helpful in this instance. Past publications on Indian history may indicate a particular expert is qualified to testify about Indian perception and understanding of events, but published research on the Saginaw, Swan Creek, and Black River Bands' understanding of the 1855 and 1864 treaties apparently does not exist. Moreover, even the most cursory review of the submitted reports reveals there is no generally accepted conclusion concerning the Chippewas' understanding of the treaties.

The limited applicability of the Daubert factors, however, does not relieve the Court of the duty to perform its gatekeeping function. First Tenn. Bank, 268 F.3d at 335. Other previously employed factors may be relevant, including whether the proposed expert's research and specialized knowledge was conducted for the purpose of the litigation or an independent purpose; whether the proposed expert has improperly extrapolated an unfounded conclusion from a generally accepted premise; whether the proposed expert has considered alternative explanations and conclusions; and whether the proposed expert has conducted the litigation analysis with the same level of "intellectual rigor" used outside the courtroom. Advisory Notes on 2000 Amendments, Fed. R. Evid. 702. No matter which factors are used, the key question remains the same: Does the expert possess "specialized knowledge" that will aid the trier of fact in determining a fact in issue, and is the proposed testimony the product of sufficient research that was conducted pursuant to reliable methods? ***

It is worth noting that all of the historical experts involved in this case are aware of the position of the party funding their research. Indeed, the "pressure" faced by historical experts when called on to prepare a report or offer testimony in support of litigation are immense. See Daniel A Farber, Adjudication of Things Past: Reflections on History as Evidence, 49 Hastings L.J. 1009, 1011-12 (1998). Use of historical experts in litigation requires scholars who are trained to seek answers through objective analysis into an arena where the answers come from comparing arguments made by opposing sides. See Maxine D. Goodman, Slipping Through the Gate: Trusting Daubert and Trial Procedures to Reveal the 'Pseudo-Historian' Expert Witness and to Enable the Reliable Historian Expert Witness--Troubling Lessons from Holocaust-Related Trials, 60 Baylor L. Rev. 824 (2008); Matthew J. Festa, Applying a Usable Past: The Use of History in Law, 38 Seton Hall L. Rev. 479 (2008); Jonathan D. Martin, Note, Historians at the Gate: Accommodating Expert Historical Testimony in Federal Courts, 78 N.Y.U.L. Rev. 1518 (2003). Nevertheless, the historical evidence provided is necessary to the resolution of this case, and the presence of bias and advocacy in an otherwise objective discipline will require careful analysis of the evidence provided by the experts, not exclusion. ***

The Court is cognizant of the important function it plays, pursuant to Rule 702, as the gatekeeper charged with admitting or excluding expert testimony based on a determination of whether the proffered testimony is both relevant and reliable. However, the fact that some experts retained by the parties may appear more reliable — based on their education, experience, research depth, and research methods — does not necessarily mean that the less reliable experts must be excluded. The question to be addressed at this stage is a threshold issue concerning which facts and opinions should even be considered by the finder of fact. ***

Legal scholars have suggested a variety of solutions to the problems associated with evaluating historical testimony, including the use of neutral, court-appointed experts; requiring the judge, or a special master, to evaluate the primary source data personally; and eliminating the "reliability" prong of the Daubert test. See Maxine D. Goodman, Slipping Through the Gate: Trusting Daubert and Trial Procedures to Reveal the 'Pseudo-Historian' Expert Witness and to Enable the Reliable Historian Expert Witness--Troubling Lessons from Holocaust-Related Trials, 60 Baylor L. Rev. 824, 861-73 (2008). Perhaps some of those solutions would provide for more nuanced and reliable historical testimony. In this case, however, a neutral expert was not requested or appointed, the demands of the Court's docket make independent primary-source research impracticable, and development of a new test for admissibility of historical testimony seems unnecessary. More importantly, the expert opinions provided, while perhaps flawed in some respects, are reasonably reliable and will be helpful in determining the ultimate issue in this case. Consequently, they are admissible under Rule 702, and will be considered and weighed appropriately.

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