EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Friday, April 6, 2012

Article Of Interest: Anderew Jurs' Questions from the Bench and Independent Experts: A Study of the Practices of State Court Judges

In 1993, in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), the United States Supreme Court drove a stake through the heart of the old Frye test for the admissibility of expert evidence at the federal level. That old Frye test allowed for the admission of expert evidence as long as the technique or technology had general acceptance in the relevant expert community, and one of the criticisms of the test was that it allowed for the admission of "junk science." For instance, under Frye, a court would be constrained to allow for the admission of testimony by an arson expert as long as the expert followed techniques that had general acceptance in the arson investigation community, even if those techniques couldn't withstand outside scrutiny.

Daubert replaced Frye with the concept of the judicial gatekeeper, under which judges would dig beneath the "general acceptance" veneer and determine whether practices such as latent fingerprint identification, arson investigations, and the comparisons of tool marks, bite marks, handwriting, and non-DNA hair samples were truly reliable. Two of the tools in a judges arsenal are Federal Rule of Evidence 614, which allows for judicial interrogation of witnesses (including expert witnesses), and Federal Rule of Evidence 706, which allows for judicial appointment of expert witnesses. But to what extent have judges applying Daubert used these tools? And has Daubert increased judicial reliance on these rules as judges become judicial gatekeepers? These are some of the topics addressed by Drake Law School Professor Andrew Jurs in his article, Questions from the Bench and Independent Experts: A Study of the Practices of State Court Judges (Pittsburgh Law Review, forthcoming)

Professor Jurs' article relays the results of a survey that he sent to state court judges in Iowa, Nebraska, and North Dakota, which he 

selected due to several factors. First, each of the three selected states have Rules of Evidence for judicial questioning and independent experts that are nearly identical to each other and the Federal Rules of Evidence. Second, the states occupy a similar geographic area which may limit any effect of regional or cultural differences on the use of these techniques. Finally, the states included represent a variety of approaches on scientific gatekeeping standards. North Dakota uses the Frye standard, Nebraska follows Daubert, and Iowa has a third approach. With the different rules, this study could then compare the use of different techniques in jurisdictions with different scientific admissibility standards.

The results? A treasure trove of information about how judges use or do not use Rule 614 and Rule 706. For instance, Professor Jurs breaks down the data by gender, years of experience on the bench, and geographic location (urban vs. rural). And he also breaks it down by which expert admissibility test the judge applies. Here are the two relevant charts in this regard:

So, does Daubert increase judical questioning of expert witnesses under Rule 614 and judicial appointment of experts under Rule 706? According to Professor Jurs, the answer is "not really." There was no statistical significance in the number of judges asking questions of expert witnesses and the frequency with which judges asked such questions across the 3 states (and judges in Nebraska, the Daubert jurisdiction, were behind judges in North Dakota in both categories). Meanwhile, there was a slight statistical difference between the number of judges appointing experts and the frequency of appointment in Nebraska, the Daubert jurisdiction, and Iowa, the Frye jurisdiction. But there was no statistically meaningful difference between Nebraska and North Dakota or North Dakota and Iowa.

Thus, according to Professor Jurs, "[b]ased on the data, the standard for admissibility of expert testimony appears to have little effect on the overall use, or frequency of use, of the advanced factfinding methods in Rule 614 and Rule 706." 

For the rest of Professor Jurs' findings, check out his terrific article. I asked him what led him to write the article, and he responded:

I wanted to do this study for several reasons:

1)  Update prior research in the area, which relies on surveys performed in the 1990's (Krafka: 1998 & 1991; Dobbin: 1999) or is even older (Cecil & Willging: 1988). This includes both the gatekeeping/factfinding methodology studies  of Krafka (federal) and Dobbin (state), but also the Cecil & Willging study (surveys 1980's) on why independent experts are not used; 

2)  See if the use of these methodologies varies based on scientific admissibility standard (some general research says that both Frye-state and Daubert-state judges have similar views on gatekeeping, and I wanted to see if that  was true with specific methodologies); 

3)  Examine if any factor besides scientific admissibility standard had an effect on the use of these methods; and

4)  Determine the judges' opinion of why independent experts are rarely used (update Cecil & Willging). 

While it is a small study (and notes this), it does help examine all of these issues - sometimes with startling results. 



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