Commercial Litigation and Arbitration

Daubert — Strict Interpretation — Good Quotes — Criminal vs. Civil Daubert

From United States v. Hebshie, 2010 U.S. Dist. LEXIS 120746 (D. Mass. Nov. 15, 2010):

Daubert’s extra vigilance is essential for two reasons: First, while opinion testimony is generally excluded, expert witnesses are permitted to opine on the basis of evidence not given to the jury. See Fed. R. Evid. 703. Second, as I have previously written, "a certain patina attaches to an expert's testimony unlike any other witness; this is 'science,' a professional's judgment, the jury may think, and give more credence to the testimony than it may deserve." United States v. Hines, 55 F. Supp. 2d 62, 64 (D. Mass. 1999); see also Michigan Millers Mut. Ins. Corp. v. Benfield, 140 F.3d 915, 920 (11th Cir. 1998) ("The use of 'science' to explain how something occurred has the potential to carry great weight with a jury, explaining both why counsel might seek to couch an expert witness's testimony in terms of science, as well as why the trial judge plays an important role as the gate-keeper in monitoring the evidentiary reliability of such testimony.").

When scientific evidence does not meet the minimal requirements, advocacy tools that may be effective as to other evidence are not effective here. Just because the testimony has been admitted sends the jury the message that the opinions are entitled to some weight. See N.J. Schweitzer & Michael J. Saks, The Gatekeeper Effect, 15 Psychol. Pub. Pol'y & L. 1, 12 (2009) ("[J]urors assume that judges review scientific evidence before it is presented to them, and that any evidence used in a trial must be above some threshold of quality. Because of these assumptions, jurors seem to be less critical of scientific evidence used in trials and are more persuaded by it."). Cross-examination suffices only when experts have reached different conclusions, but the underlying approach is sound. Where it is not, exclusion, or in some situations, limitation, is the only option. See United States v. Green, 405 F. Supp. 2d 104, 109 (D. Mass. 2005) (limiting the ballistics expert to describing the similarities between the shell casings, but not the ultimate conclusion that they came from a specific pistol "to the exclusion of every other firearm in the world").


While most of the above cases are civil, it cannot be that science is different in criminal cases than in civil ones. Bad science is bad science; unreliable methodologies are unreliable methodologies, no matter the side of the docket. See Paul C. Giannelli, The Supreme Court's "Criminal" Daubert Cases, 33 Seton Hall L. Rev. 1071, 1111 (2003) ("Daubert has evolved into a stringent standard in civil cases; D. Michael Risinger, Navigating Expert Reliability: Are Criminal Standards of Certainty Being Left on the Dock?, 64 Alb. L. Rev. 99, 149 (2000) (comparing "the heightened standards of dependability imposed on expertise proffered in civil cases" with "expertise proffered . . . in criminal cases [which] has been largely insulated from any change in pre-Daubert standards or approach."). Paradoxically, and perhaps shamefully, this standard has not been consistently imposed in criminal cases.").

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