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In United States federal law, the Daubert standard ( ) is a rule of evidence regarding the admissibility of expert witness testimony. A party may raise a Daubert motion, a special motion in limine raised before or during trial, to exclude the presentation of unqualified evidence to the jury. The Daubert trilogy are the three United States Supreme Court cases that articulated the Daubert standard:
Important appellate-level opinions that clarify the standard include Judge Alex Kozinski's opinion in Daubert on remand, and Judge Edward Becker's opinion.
In 2000, the Federal Rules of Evidence, Rule 702 was amended in an attempt to codify and structure elements embodied in the " Daubert trilogy".
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Although trial judges have always had the authority to exclude inappropriate testimony, prior to Daubert, trial courts often preferred to let juries hear evidence proffered by both sides. Once certain evidence has been excluded by a Daubert motion because it fails to meet the relevancy and reliability standard, it will likely be challenged when introduced again in another trial. Even though a Daubert motion is not binding to other courts of law, if something was found untrustworthy by one court, other judges may choose to follow that precedent. Of course, a decision by an appellate court that a piece of evidence is inadmissible under Daubert would be binding on district courts within that court's jurisdiction. An evidentiary hearing on the motion may not be necessary if the court finds that it would not assist the court in ruling on any of the matters in the motion.
In one case where a Daubert hearing was conducted on the day of the trial, in which the district court excluded all plaintiff's expert testimony, resulting in the dismissal of all claims, the appellate court remanded the case because of multiple irregularities and a defective record of lower court proceedings.Webster v. Fulton County, Ga., 85 F. Supp. 2d 1375, 1377 (N.D. Ga. 2000) (denying defendant's Daubert motion as untimely, when brought after court had relied on plaintiff expert's report in denying defense summary judgment motion, and within days of trial date). See also Alfred v. Caterpillar, Inc., 262 F.3d 1083, 1087 (10th Cir. 2001 ) (counsel should not sandbag Daubert concerns until close of opponent's case ; however, appellate court did not reach issue of late filing of motion because district court chose to address defendant's Daubert objections on merits, rather than deeming them waived); Pullman v. Land O'Lakes, Inc., 262 F.3d 759, 763 (8th Cir. 2001) (appellate court noted with disapproval that defendant failed to bring Daubert motion until shortly before the trial began ; Daubert inapplicable to experimental test evidence not presented by expert witnesses). The appellate court noted that in cases that rely heavily on expert testimony, a district court should set a discoverySee Smith v. Ford Motor Co., 215 F.3d 713, 722 (7th Cir. 2000) . See also Goebel v. Denver and Rio Grande W. R.R., 215 F.3d 1083, 1087 (10th Cir. 2000) (district court orally denied motion to exclude expert testimony on morning of trial); McPike v. Corghi S.p.A., 87 F. Supp. 2d 890, 891 n.1 (E.D. Ark. 1999) (court telephoned attorneys with ruling denying defendant's motion to exclude plaintiff's expert testimony, because closeness of trial did not allow time for formal written memo and order at that time; court later rendered substituted memorandum and order, fully stating reasons for its decision in writing). and trial schedule that realistically provides both sides with an adequate opportunity to introduce necessary evidence. The application of Federal Rule of Evidence 702 to proposed expert testimony can often be an uncertain process and is best conducted in such a manner that litigants have a reasonable opportunity to locate experts who meet the rule's requirements.
In another case in which the defendant was apparently at fault for filing a motion to exclude expert testimony one week before the trial date, the district court denied the motion on that ground, but it advised the defendant that it might conduct its own voir dire of the expert in question before he testified. The district court preliminarily found that defendant's motion was predicated on a ruling made almost three months earlier by a district court in another state, and that defendant had shown no good cause for waiting to file the motion. The defendant ultimately lost that case, following the admission of the disputed expert testimony, and ultimately failed in its appeal.See Clay v. Ford Motor Co., 215 F.3d 663, 674 (6th Cir. 2000)
In Daubert, the Supreme Court ruled that the 1923 Frye standard was superseded by the 1975 Federal Rules of Evidence, specifically Rule 702 governing expert testimony. Rule 702 originally stated (in its entirety),
In Daubert, the court ruled that nothing in the Federal Rules of Evidence governing expert evidence "gives any indication that 'general acceptance' is a necessary precondition to the admissibility of scientific evidence. Moreover, such a rigid standard would be at odds with the Rules' liberal thrust and their general approach of relaxing the traditional barriers to 'opinion' testimony." By requiring experts to provide relevant opinions grounded in reliable methodology, proponents of Daubert were satisfied that these standards would result in a fair and rational resolution of the scientific and technological issues which lie at the heart of product liability adjudication. Daubert has not appeared to further the Federal Rules philosophy of admitting generally all relevant testimony, and specifically of relaxing the traditional barriers to 'opinion' testimony. The Daubert decision has instead been heralded by some political commentators as one of the most important Supreme Court decisions in imposing higher barriers for toxic tort and product liability cases, by allegedly reducing the volume of so-called junk science in the court room.
According to a 2002 RAND Corporation study, following Daubert, the percentage of expert testimony by scientists that was excluded from the courtroom significantly rose. This rise likely contributed to a doubling in successful motions for summary judgment in which 90% were against plaintiffs.Dixon, Lloyd, and Gill, Brian. "Changes in the Standards for Admitting Expert Evidence in Federal Civil Cases Since the Daubert Decision". Santa Monica, California: RAND Corporation, 2001. Beyond this study, there is little empirical evidence of the impact of Daubert. However, some critics argue that Daubert has disrupted the balance between plaintiffs and defendants: "The exclusion of expert testimony affects plaintiffs far more than defendants because plaintiffs may then not be able to meet their required burden of proof. Furthermore, there is little point in plaintiffs going to the expense of Daubert motions to exclude defendant's experts until they know if their case will proceed. So if more experts are now being excluded, then Daubert has undoubtedly shifted the balance between plaintiffs and defendants and made it more difficult for plaintiffs to litigate successfully." Similarly, Daubert hearings can be subject to various abuses by attorneys attempting to bolster a weak case. These tactics can range from simply attempting to delay the case to driving up the costs of the litigation forcing settlement.
A different pattern has emerged in criminal cases. In criminal cases, the prosecution has the burden of proof and uses a host of forensic science methods as evidence to prove their case; but Daubert motions are rarely made by criminal defendants and when they do, they lose a majority of the challenges. Some critics of the use of unreliable science in court argue that Daubert has had beneficial effects in civil litigation, but fails to address the underlying pathologies of the forensic science system that leads to dubious verdicts in criminal cases.
Some commentators believe that Daubert caused judges to become—in the phrase used in Chief Justice William Rehnquist's dissent in Daubert—amateur scientists, many lacking the scientific literacy to effectively fulfill their role as gatekeeper of scientific evidence. Although "science for judges" forums have emerged in the wake of Daubert in order to educate judges in a variety of scientific fields, many are still skeptical about the usefulness of the Daubert standard in discerning valid science. The responsibility to assess scientific relevance has shifted from highly trained expert witnesses to judges deficient in science education. The Daubert ruling furthermore admits the possible introduction of non-peer reviewed data and conclusions. This increasingly shifts the burden of scientific judgement onto judges who have not had an education which would enable them to properly evaluate such data.
Pursuant to Rule 104(a), in Daubert the U.S. Supreme Court suggested that the following factors be considered:See (c) of the syllabus of the Daubert case.
The Supreme Court explicitly cautioned that the Daubert list should not be regarded by judges as "a definitive checklist or test". Yet in practice, judges have judged the admissibility of scientific evidence using the " Daubert factors" as a checklist; for example, the trial court judge in Kumho admitted to erroneously treating the factors as mandatory.
Later, in 2016, the Supreme Court of Canada in White Burgess Langille Inman v. Abbott and Haliburton Co. 2015 2 SCR 182 endorsed the parts of R v. J.-L.J. that cited Daubert, saying: "in the case of an opinion based on novel or contested science or science used for a novel purpose, the reliability of the underlying science for that purpose: J. (J.-L.), at paras. 33, 35–36 and 47". White Burgess Langille Inman v. Abbott and Haliburton Co. 2015 2 SCR 182. This suggests that reliability using the Daubert factors should be assessed when novel or contested science is adduced.
Additionally, in 2005, the Science and Technology Select Committee of the United Kingdom House of Commons recommended the creation of a Forensic Science Advisory Council to regulate forensic evidence in the UK and observed that:
The Law Commission for England and Wales proposed a consultation paper (No.190) to adopt a criterion like the Daubert standard to help reform the law of evidence in regards to the admissibility of scientific evidence. "The Admissibility of Expert Evidence in Criminal Proceedings in England and Wales". (PDF). The Law Commission.
International influence
The Canadian Supreme Court expressly discussed the Daubert standard in R. v. J.-L.J., 2000.
See also
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