In what he describes as a "premortem" on Joiner v. General Electric Co., a case before the Supreme Court at the time he is writing, Professor Faigman considers what role appellate courts should have in the evaluation of the admissibility of scientific expert testimony. Unclouded by the conclusions of the Court, Professor Faigman argues that appellate courts should share the active gatekeeping role that the Court created for district courts in Daubert v. Merrell Dow Pharmaceuticals, Inc.
Professor Faigman describes the lower courts' opinions in Joiner, noting that the Eleventh Circuit adopted a somewhat murky heightened standard of appellate review in reversing the district court's exclusion of expert medical testimony. He also reviews the amicus briefs submitted to the Court, with special emphasis on those amici supporting the district court's opinion excluding what it considered to be bad science. These amici advocated a very deferential standard of appellate review, thus hoping to preserve the district court's conclusion excluding the testimony. Professor Faigman suggests that a deferential appellate standard is inconsistent with the long-term interest of these amici in keeping bad science out of the courtroom. The best strategy for ensuring the sophisticated use of scientific research, Professor Faigman maintains, is for appellate courts to also assume a gatekeeping responsibility over at least some aspects of scientific evidence. Specifically, he argues that appellate courts should apply a hard look or de novo standard of review to expert testimony that relies on scientific research that transcends the particular case. He explains that active appellate review of scientific research that transcends particular cases is mandated by both legal and scientific reasons. By necessity, he points out, appellate courts must have the wherewithal, the gatekeeping power, to settle scientific disagreements among lower courts. This will be true for all scientific questions that transcend particular litigation, from the validity of DNA profiling to the toxicity of PCBs. Case-specific issues, however - such as allegations that evidence was planted at the scene of the crime, or that the expert is puffing for a fee - would remain matters on which appellate courts would defer to the fact-finder at trial. But, he concludes, only appellate courts are situated to ascertain and balance the policy implications raised by science, ensure consistency across jurisdictions, and evaluate the methods, principles and reasoning of multiple research studies.
David L. Faigman,
Appellate Review of Scientific Evidence under Daubert and Joiner,
48 Hastings L.J. 969
Available at: https://repository.uchastings.edu/hastings_law_journal/vol48/iss5/4