The use and acceptance of social science evidence in business litigation after Daubert.

The landmark U.S. Supreme Court case of Daubert v. Merrell Dow Pharmaceuticals , which overturned the venerable Frye test for the admissibility of scientific evidence, has sparked considerable interest among scholars and practitioners, within both the law and the various sciences. The discussion of the impact of Daubert on social science evidence, however, has been largely confined to a narrow range of issues, primarily concerning criminal law and mental health. Indeed, the Daubert case thus far has received relatively scant attention in the published cases involving business litigation, and in most of these instances, the focus has been on evidence from the hard sciences rather than from the social sciences. The author explores the use and acceptance of social science evidence in business litigation within the post- Daubert era. First, the specific Daubert factors are analyzed from the perspective of social science evidence in business litigation. Second, the scope of business litigation which has been impacted-or which is potentially impacted-by Daubert is outlined and discussed. Third, various procedural issues in the post- Daubert era are explored, including motions for summary judgment to dispose of social science issues… (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

The impact of Daubert and its progeny on the admissibility of behavioral and social science evidence.

Although Daubert (1993) describes a test for admissibility that applies to all proffers of scientific evidence in the federal courts and many state courts, its application has not been uniform across the sciences. To assess Daubert's impact for behavioral and social science evidence, the authors describe and analyze the application of a set of criteria that include whether Daubert has mattered, whether the context in which Daubert is applied should matter, whether one can operationalize the application of the Daubert criteria to predict its outcome in specific cases, whether Daubert can assist in getting admissibility decisions right, and whether there are broader lessons beyond admissibility to be learned from Daubert . (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Science, common sense, and the determination of mental capacity.

In 1993, when the Supreme Court decided Daubert and created the modern standard for the admissibility of scientific evidence, it almost certainly did not consider its possible effect on evidentiary hearings in probate courts even though such courts routinely admit expert testimony in will contests and guardianship hearings. Probate courts also admit testimony of lay witnesses who express their opinion as to the mental capacity of the individual in question. Yet both expert and lay witnesses are only "fact bringers" and not "fact interpreters" because the ultimate question of capacity is legal, not factual. Because the determination of legal capacity is made by the judge or jury, the role of experts in capacity trials is not fundamentally different than that of lay persons. The limited role of the expert suggests that probate courts should allow great latitude in the admission of expert testimony because the fact finders must ultimately rely on their own amorphous sense of "legal capacity." (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

The problem of "helpfulness" in applying Daubert to expert testimony: Child custody determinations in family law as an exemplar.

In Daubert v. Merrell Dow Pharmaceuticals, Inc. , (1993), the U.S. Supreme Court considered the meaning of Federal Rule of Evidence (FRE) 702 in regard to the admissibility of scientific evidence. In this article, the authors argue that the relevance, reliability, and helpfulness framework adopted by the Court offers little guidance to judges on how to apply its interpretation of FRE 702's admissibility standard. Using child custody decision making as an exemplar, the authors highlight the difficulties inherent in applying the Daubert standard to social science testimony and find no reason to assume that other topics in the behavioral and social sciences will operate differently under Daubert scrutiny. The article concludes by recommending steps that courts can take to improve the ability of judges to apply Daubert to scientific information. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Meeting the challenge of the "junk science" defense in domestic violence litigation.

Attorneys increasingly challenge the admissibility of expert testimony in domestic violence litigation on the ground that it is "junk science." This article discusses the standards courts apply when determining whether to admit "novel" scientific theory and methodology. It is recommended that psychologists offering testimony that may be subjected to this kind of challenge, critically evaluate the foundation for their opinions in light of the admissibility standards being applied in the pertinent jurisdiction, and that they directly address with the attorneys offering them as witnesses how best to present that foundation to the trial judge in their mutual effort to meet and overcome the junk science challenge. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

A final reply to Grove and Barden: The relevance of the Rorschach Comprehensive System for expert testimony.

In reply to Grove et al. (2002), the authors attempt to limit their focus on the question of admissibility of the Rorschach Comprehensive System for expert testimony under the guidelines of the U.S. Supreme Court Daubert/Kumho/Joiner decisions. The article refutes the argument that a "raging controversy" exists as evidence that the Rorschach is not accepted in the field of psychology. The authors again argue that Grove et al. have misconstrued the intent of Daubert/Kumho and misidentify nonclinician academics as the appropriate evaluators of the admissibility of the Rorschach. The authors add to their previous argument (2002) that the Rorschach has sufficient reliability, validity, and error rates to be admissible under Daubert and conclude by countering the Grove et al. argument that the Journal of Personality Assessment is not an adequate forum for peer review of the Rorschach. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Psychological Testimony in a Courtroom.

In view of the unclear precedent concerning the admissibility of psychological test evidence in a court of law, the author reports to fellow psychologists in some detail an experience which he had in the early part of 1954 as an expert witness in a courtroom litigation. The author feels that it may be profitable to be informed of instances when a colleague is privileged to give testimony as an expert. Perhaps, in this way psychologists can collect a body of cases which will help establish legal provision for the admission of psychological test data in a courtroom. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Admissibility of polygraph tests: The application of scientific standards post- Daubert .

The U.S. Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals (1993) modernized the long-standing Frye (1923) precedent and requires courts to make scientific judgments. Courts, however, are not well-equipped to parse scientific arguments. To illustrate the difficulty of applying Daubert , this article focuses on the controversy over admissibility of polygraph test evidence ("lie detectors"). Reliability and validity are discussed in relation to polygraph testing and the Daubert criteria. Although the validity of polygraph test results has been examined across many studies, none satisfy necessary methodological criteria and accuracy rates are unpredictable. This analysis points to the need for social scientists and courts to develop a mutually understood language to assess validity claims. Courts must have the ability to weight scientific evidence and, although they need not become amateur scientists, they must become sophisticated consumers. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Legal perceptions of science and expert knowledge.

In the past half century, expert testimony has played an increasingly important role in American litigation. As the volume of expert testimony has grown, so have issues surrounding its admissibility into evidence. In the past decade, a trilogy of U.S. Supreme Court cases redefined the rules governing admissibility. This article reviews these cases and examines some of the assumptions about expert knowledge implicit in the opinions. It argues that the opinions ask judges to assume the role of scientific methodologists. Together, the 3 opinions reflect what Steven Cole calls a realist-constructivist view of science. Science is socially constructed both in the laboratory and in the wider community, but the construction is constrained by input from the empirical world. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Protecting the integrity of the legal system: The admissibility of testimony from mental health experts under Daubert/Kumho analyses.

The authors discussed to what degree testimony from social science and mental health experts (psychologists, psychiatrists, social workers, therapists, others) meets admissibility requirements expressed by the U.S. Supreme Court in Daubert (1993), Joiner ( General Electric Co. v. Joiner , 1997) and the recent Kumho (1999) decision. They reviewed data on Daubert/Kumho indicia of reliability using 2 exemplar areas of mental health testimony: psychodiagnostic assessment by means of the Rorschach and other "projective" assessment techniques and the diagnoses of posttraumatic stress disorder and multiple personality disorder (dissociative identity disorder). They concluded that some testimony offered by mental health professionals relating to these concepts should not survive scrutiny under the framework of Daubert , Joiner , and Kumho . (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

A scientist–practitioner's viewpoint on the admissibility of behavioral and social scientific information.

Problems in applying the Daubert (1993) test to social science evidence are discussed, and new issues are raised. In particular, the difference between the legal treatment of clinical evidence, as opposed to actuarial evidence, is discussed. The changing nature of science and the effect of societal norms on evidence requirements are noted. Questions are raised about the definition of the scientific method, and an alternative to the traditional scientific treatment of data is offered and discussed. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Judicial Application of Daubert to Psychological Syndrome and Profile Evidence: A Research Note.

The authors present previously unreported results from a nationwide survey (N=325) of state trial judges (S. I. Gatowski et al., 2001) that was conducted pre-Kumho. The authors report how the 1993 Daubert guidelines were applied to psychological syndrome and profile evidence, and the impact of the decision on the admissibility of such evidence. They found that judges' views of and experience with psychological testimony varied widely and that most judges neither understood nor applied the more technical Daubert guidelines, such as falsifiability and error rate, when assessing psychological evidence. Overall, the findings suggest that Daubert's impact on the admissibility of psychological syndrome and profile testimony is negligible and that most judges are more comfortable with pre-Daubert standards when this type of testimony is proffered. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

The effects of Daubert on the adissibility of expert testimony in state and federal criminal cases.

Appellate opinions were evaluated on variables related to expert admissibility to assess the effects of Daubert v. Merrell Dow Pharmaceuticals, Inc. in criminal cases. Analysis reveals changes in appellate courts' consideration of Frye v. United States, the 4 Daubert criteria, and several Federal Rules of Evidence. The importance of Frye and the general acceptance criterion decreased over time, and the importance of the Daubert criteria increased over time. However, these changes were not consistent for all types of testimony. Overall, there is greater reliance on Daubert when determining the admissibility of a scientific expert. However, only criteria related to the Federal Rules of Evidence are reliably related to admissibility decisions. Details of appellate court application of the 4 Daubert criteria, the Federal Rules of Evidence, and other related factors are discussed. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Forensic psychological testimony: Is the courtroom door now locked and barred?

Beginning with the Supreme Court of Canada's decision in R v. Marquard (1993), it has become increasingly more difficult for lawyers to have proposed psychological testimony admitted into evidence at trial. By reviewing several recent cases, the author shows how courts are applying legal rules of admissibility in cases where expert psychological evidence is being proffered. Drawing on the review of case law, the author provides useful recommendations that will help psychologists ensure that—when appropriate—their testimony will be held admissible by courts. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Social science evidence in the courtroom: Daubert and beyond?

Recent Supreme Court decisions suggest that judges should conduct a gatekeeping inquiry before admitting testimony that is based on psychology or other social sciences. Perspectives from other areas of applied social research may be of use to psychologists and others as they consider these decisions by the Court. A view of research as "assisted sensemaking" highlights (a) the importance of better understanding the capacities and limits of the natural sensemaking of jurors, (b) reasons why the gatekeeping function is appropriate, and (c) possible ways in which researchers can better serve the courts as they deal with the implications of gatekeeping. The possible impact of different types of expert testimony and the potential development of nonadversarial support mechanisms are also discussed. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Expert testimony and professional judgment: Psychological expertise and commitment as a sexual predator after Hendricks .

Clinicians and social scientists exercise judgments and discharge responsibilities while fulfilling several different roles in interaction with a variety of legal institutions. The decisions of the Supreme Court in Daubert and Hendricks provide an opportunity to examine the defensible parameters of several of these roles. Daubert provides criteria for the admission of expert testimony in a variety of hearings, including commitment hearings held under statutes such as that at issue in Hendricks . The authors interpret these Daubert criteria as representing broader underlying principles that can provide useful guidance in establishing defensible parameters of participation in a variety of legal institutions by clinicians and social scientists. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Practice Increases the Efficiency of Evidence Accumulation in Perceptual Choice.

Most models of choice response time base decisions on evidence accumulated over time. A fundamental distinction among these models concerns whether each piece of evidence is equally weighted (lossless accumulation) or unequally weighted (leaky accumulation). The authors tested a hypothesis derived from A. Heathcote and S. Brown's (2002) self-exciting expert competitor (SEEXC) model of skill acquisition: that evidence accumulation becomes less leaky with practice. The hypothesis was supported by observation that the effects of prime stimuli increased with practice. The authors used metacontrast masked primes, which could not be consciously discriminated by most participants, to avoid methodological problems associated with conscious strategy changes. The form of the law of practice in the data is also shown to be consistent with the SEEXC model. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Changes in the standards for admitting expert evidence in federal civil cases since the Daubert decision.

The authors used a sample of federal district court opinions between 1980 and 1999 to examine how judges, plaintiffs, and defendants responded to the Supreme Court's 1993 Daubert v. Merrell Dow Pharmaceuticals, Inc. decision. They found that after Daubert (a) judges were more likely to evaluate the reliability of expert evidence, (b) the standards for admitting expert evidence tightened, and (c) the parties proposing and challenging evidence responded to the change in standards. The authors also examined how "general acceptance" of proposed evidence in the specific expert community enters the reliability assessment and which types of evidence were most affected by Daubert. Even though judges are more actively screening expert evidence, whether they are doing so in ways that produce better outcomes has not been determined. (PsycINFO Database Record (c) 2011 APA, all rights reserved)     

Gold versus platinum: Do jurors recognize the superiority and limitations of DNA evidence compared to other types of forensic evidence?

In a series of studies, the authors examined (a) public perceptions concerning forensic scientific evidence, (b) the relative influence attributed to DNA evidence compared to other forms of forensic identification evidence, and (c) the impact of cross-examination addressing the limitations of DNA testimony. In Studies 1 and 2, both undergraduate students and representative jurors rated DNA as the most accurate and persuasive type of evidence compared to other types of forensic evidence. This finding was consistent across samples of individuals with varied exposure to media coverage of scientific evidence. Experimental results further revealed the strong influence of DNA evidence in verdict decisions regardless of the type of crime or whether the evidence was incriminating or exculpatory. In Studies 2 and 3, DNA-based expert testimony demonstrated strong effects on juror decision-making even after cross-examination. These effects were mitigated to some extent in Study 3, however, by the interaction of the reliability of DNA evidence and the focus of cross-examination. The implications regarding the use of DNA and other scientific evidence for public policy and practice in legal decisions are discussed. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Psychology and the legal process: Opinion polls as evidence.

The purpose of this paper was "to describe the actual and potential use of… polls and surveys as legal evidence and to comment on relevant legal decisions for the benefit of interested psychologists." The value of public opinion polls was indicated in change-of-venue decisions, in attitudes toward euthanasia, in determining the moral climate of a community, and in determining whether a certain statement or epithet is capable of being defamatory in the public mind in connection with evidence of libel or slander. It was pointed out that the potential uses of survey evidence in litigation are numerous, and that the courts are showing increasing acceptance of this evidence. Steps toward insuring the psychologist's acceptance as an independent expert and areas of preparation by the psychologist for court testimony are suggested. (PsycINFO Database Record (c) 2010 APA, all rights reserved)