In Motorola, Inc. v. Murray, in a rare en banc interlocutory appeal, the D.C. Court of Appeals expressly adopted the Daubert Standard for the admissibility of expert testimony, pursuant to Federal Rule of Evidence 702.
The Court concluded that “Rule 702, with its expanded focus on whether reliable principles and methods have been reliably applied,” states a rule that is preferable to the prior “general acceptance” standard. Op. at 15. The Court indicated that such standard would apply to all criminal and civil matters, for which a trial has not yet begun.
A copy of the opinion is available here.
Discussion
In adopting Federal Rule of Evidence 702, which reflects the U.S. Supreme Court’s construction in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 587 (1993), and its progeny, the D.C. Court of Appeals undertook a review of its prior standard for the admission of expert testimony, and the evolution of the federal rule.
Previously, in matters tried before the D.C. Superior Court, the admission of expert testimony has been governed by the legal principles set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), under which scientific testimony is admissible only if the theory or methodology on which it is based has gained general acceptance in the relevant scientific community. Op. at 6. The benefit of such standard is that, "[g]eneral acceptance means just that; the answer cannot vary from case to case . . . . If the technique has gained such general acceptance, we will accept it as presumptively reliable and thus generally admissible into evidence." Op. at 6.
However, in the federal system, the ‘general acceptance’ test had been superseded by the Federal Rules of Evidence, which under Rule 702 provide:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and(d) the expert has reliably applied the principles and methods to the facts of the case.
Fed. R. Evid. 702.
Thus, in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 587 (1993), the U.S. Supreme Court explained:
‘General acceptance’ is not a necessary precondition to the admissibility of scientific evidence under the Federal Rules of Evidence, but the Rules of Evidence—especially Rule 702—do assign 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. Pertinent evidence based on scientifically valid principles will satisfy those demands.
Op. at 10 (citing Daubert, 509 U.S. at 597).
Under Rule 702, as interpreted by Daubert and its progeny, the trial judge performs an initial gatekeeper function: “[W]hen a party proffers expert scientific testimony, the trial court must make ‘a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.’" Op. at 7-8 (citing Daubert, 509 U.S. at 592-93).
Noting that the Supreme Court has eschewed a definitive checklist or test, the D.C. Court observed that several factors to be considered include: “whether the theory or technique has been tested, whether it ‘has been subjected to peer review and publication,’ ‘the known or potential rate of error,’ and ‘the existence and maintenance of standards controlling the technique's operation.’ . . . ‘Finally, 'general acceptance' can yet have a bearing on the inquiry.” Op. at 8. (quoting Daubert, 509. U.S. at 594). The inquiry is “a flexible one.” Op. at 8. "The focus . . . must be solely on principles and methodology, not on the conclusions that they generate." Op. at 8 (quoting Daubert, 509. U.S. at 595).
The Court shared the Supreme Court’s intent that the trial judge's more refined gatekeeping role would not displace the normal tools of the adversary system. “‘Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence . . . [I]n practice,’ however, ‘a gatekeeping role for the judge, no matter how flexible, inevitably on occasion will prevent the jury from learning of authentic insights and innovations.’" Op. at 8 (quoting Daubert at 596, 597).
The Court also agreed that Rule 702 does not operate in isolation, noting that other evidentiary rules operate in the application of the gatekeeping function, including those concerning the qualifications of the witness, the bases of the expert’s opinion (Rule 703), and whether the probative value of such evidence is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence (Rule 403). Op. at 9. The Court highlighted the Supreme Court’s concerns regarding unfair prejudice, noting that "Expert evidence can be both powerful and quite misleading because of the difficulty in evaluating it. Because of this risk, the judge in weighing possible prejudice against probative force under Rule 403 of the present rules exercises more control over experts than over lay witnesses." Op. at 9 (quoting Daubert, 509 U.S. at 595 (internal quotations omitted)).
The Court concluded that, in adopting the Rule 702 standard, there are substantial benefits to be gained from adopting a test that is widely used . . ., noting that “[w]e can learn from the decisions of other courts which apply Rule 702 or its state counterparts.” Op. at 16.