|
Those interested in this discussion may wish to
consult Rule 702 of the Federal Rules of Evidence to take effect 01 Dec 2000
(available via http://www.uscourts.gov/rules/approved.htm ).
It states that opinions based on "...scientific, technical, or other specialized
knowledge ..." may be presented at trial if, "...(1) the testiminy [sic] is
based on sufficient facts or data, (2) the testimony is the product of reliable
principles and methods, and (3) the witness has applied the principles and
methods reliably to the facts of the case."
The meaning of Rule 702 was clarified (in advance) by the
U.S. Supreme Court in Daubert vs. Merrel Dow Pharmaceuticals, case no. 92-102,
The syllabus, partially quoted below, and the various complete opinions can be
obtained at:
"The Rules--especially Rule 702--place appropriate
limits on the admissibility of purportedly scientific evidence by assigning to
the trial judge the task of ensuring that an expert's testimony both rests on a
reliable foundation and is relevant to the task at hand. The reliability
standard is established by Rule 702's requirement that an expert's testimony
pertain to "scientific . . . knowledge," since the adjective "scientific"
implies a grounding in science's methods and procedures, while the word
"knowledge" connotes a body of known facts or of ideas inferred from such facts
or accepted as true on good grounds. The Rule's requirement that the testimony
"assist the trier of fact to understand the evidence or to determine a fact in
issue" goes primarily to relevance by demanding a valid scientific connection to
the pertinent inquiry as a precondition to admissibility. Pp. 9-12.
(c) Faced with a proffer of expert scientific
testimony under Rule 702, the trial judge, pursuant to Rule 104(a), must make a
preliminary assessment of whether the testimony's underlying reasoning or
methodology is scientifically valid and properly can be applied to the facts at
issue. Many considerations will bear on the inquiry, including whether the
theory or technique in question can be (and has been) tested, whether it has
been subjected to peer review and publication, its known or potential error
rate, and the existence and maintenance of standards controlling its operation,
and whether it has attracted widespread acceptance within a relevant scientific
community. The inquiry is a flexible one, and its focus must be solely on
principles and methodology, not on the conclusions that they generate.
Throughout, the judge should also be mindful of other applicable Rules. Pp.
12-15.
(d) Cross-examination, presentation of contrary
evidence, and careful instruction on the burden of proof, rather than wholesale
exclusion under an uncompromising "general acceptance" standard, is the
appropriate means by which evidence based on valid principles may be challenged.
That even limited screening by the trial judge, on occasion, will prevent the
jury from hearing of authentic scientific breakthroughs is simply a consequence
of the fact that the Rules are not designed to seek cosmic understanding but,
rather, to resolve legal disputes. Pp. 15-17."
Additional clarifications of Rule 702 may be found in
Kumho Tire Co. vs. Carmichael, Case no. 97- 1709, also available at the Cornell
web site.
The courts of the 50 States, the territories and the
Commonwealth of Puerto Rico, and Indian Tribes may have their own rules of
evidence.
2306 West River Street
Two Rivers, WI 54241 |