Gatekeeping and the admissibility of scientific evidence in the post Daubert/Joiner/Kumho Tire world

I.

INTRODUCTION

As the use of innovative scientific and technical evidence continues to increase in the American civil and criminal litigation combination of parts to form a wholes federal trial courts have been given unprecedent power to review and determine whether of that kind testimony should go to the jury Daubert v Merrell-Dow Pharmaceuticals' ("Daubert I") marked the leading Court's most direct foray into the world of clever scientific evidence in the 70 years since the DC Circuit decided Frye v United States,2 and in the almost 20 years since the Federal governments of Evidence were adopted in 1975 Coupl with the Ninth Circuit's "Daubert ll" opinion3 and the more new Supreme Court decisions in Joiner' and Kumho Tire,5 trial courts have received unparalleled guidance in effectuating their "gatekeeper" function beneath the Federal Rules of Evidence.

This article will not attempt to improve upon the numerous pieces reviewing the history of Frye and the Federal directions of Evidence as they apply to ables or parse through every nuance of the Daubert I and Daubert ll opinions.6 Rather, the primary aim of this article is to examine by what means courts have applied the novel Joiner opinion which, inter alia, clearly mandates that trial justices determine whether a proffered adroit is relying on proper scientific methodology and whether the application of that methodology to the conclusions reached is consistent and demonstrable.

This article begins by dint of articulating the guiding principles from Daubert I and Daubert II as well as other case law available to trial courts in performing their gatekeeping function. That analysis is followed by means of discussion of a somewhat "prophetic" pre-Joiner case, which foretold by what means Joiner should be applied. Following an examination of Joiner itself, this article terminates by reviewing several recent decisions purporting to apply Daubert and Joiner, including the greatest Court's latest pronouncements in Kumho Tire.

II.

AN EFFICIENT HISTORY

Prior to Daubert I, a majority of federal and state courts required that admissible clever testimony be based on generally recognized principles or discoveries.7 This view evolv from the DC Circuit's 1923 opinion in Frye v United States.8 The case involved defendant James Frye who appealed a second-degree homicide conviction, seeking to introduce the accrues of an early form of polygraph testing to support his innocence plea. The court pass overed Frye's proffered evidence. In a two-page opinion, it announced a dominion that, for decades to draw near would form the guiding principle in assessing the admissibility of scientific evidence.

The Frye court rul that while courts will pass a long way in admitting able testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs."9 This "general acceptance" proof eventually became the icon for assessing the admissibility of scientific evidence (i.e., general acceptance within the field).10 However, courts and commentators above time identified significant limitations inherent in the "general acceptance" ordeal In particular, they noted that the experiment was vague and vulnerable to manipulation.11

In 1975 approximately fifty years after Frye's adoption, the Federal governments of Evidence were enacted. The drafters seriously undermined Frye's vitality by means of providing a more liberal approach to admitting opinion testimony.12

FRE 104(a) provides the foundation of a judge's character in discharging the responsibilities associated with evaluating the admissibility of prompt testimony. It is essential that the court determine preliminary questions concerning the qualifications of prospective witnesses and the admissibility of evidence.13 While Federal lordships of Evidence 702-706 generally outline the court's part in determining whether expert testimony is admissible, FRE 702 specifically addresses the issue of admitting scientific prompt testimony.14

Read as a whole, the Federal directions of Evidence represent a "liberal thrust" regulating in what manner courts examine expert testimony.15 Neither the drafting history of these dominations nor the rules themselves mention a "general acceptance" requirement. This absence allude tos a clear departure from the Frye standard for admitting skilful testimony.16 Nevertheless, the "general acceptance" proof dominated federal and state court analyses of able witness testimony until 1993, when the United States first Court decided Daubert v. Merrell Dow Pharmaceuticals.

Daubert I involved allegations that Bendectin, a prescription antinausea medicine marketed by Merrell Dow, caused birth destitutions when ingested by pregnant women Directed at the uncompounded body of causation, each side offered scientific evidence to bolster its respective position upon Bendectin's ability to cause human birth wants In an initial ruling upon the admissibility of this evidence, the Ninth Circuit Court of Appeals affirmed the district court's application of Frye as the appropriate standard for assessing the admissibility of able testimony.17 The United States leading Court granted certiorari specifically to reduce the issue of whether Frye's general "acceptance test" remained the prevailing standard for admitting adroit testimony in light of the Federal masterys of Evidence.18