by Mark Levy MD
I recently read an interesting Blogpost by psychologist-attorney Christina Marinakis, J.D., Psy.D. who is the Director of Jury Research, at the website Litigation Insights. The post was entitled “How Should Scientific Research be Presented to Judges and Juries?”
The author reviews that “In 1923, the federal courts adopted a general acceptance standard for judging the admissibility of scientific evidence (Frye v. United States). If the scientific method or technique on which the evidence is based is generally accepted within the scientific community, the expert testimony should be admitted.” She continued, “However, with the adoption of the Federal Rules of Evidence in 1975, federal courts also required that the witness be “qualified as an expert by knowledge, skill, experience, training, or education” (FRE 702). In 1993, the Supreme Court declared in Daubert v. Merrell Dow Pharmaceuticals, Inc. that FRE 702 superseded Frye. The decision also placed responsibility for determining the reliability of expert evidence in the hands of federal trial court judges while providing these judges with a non-exhaustive list of criteria by which to judge the admissibility of that evidence.”
Unfortunately, although judges are appointed the “gate keepers” to differentiate valid scientific evidence from so-called “junk science,” alarmingly the vast majority of judges have neither the educational background nor the experience to fulfill this obligation. The author noted, “In one study, 96% of judges indicated that they had not received instruction about general scientific methods and principles, and less than 10% of judges exhibited a clear understanding of the reliability factors outlined in Daubert (Gatowksi et al., 2001).”
Thus it is the task of the trial attorney and his or her expert to educate not only the jury but often the Court about how to assess the scientific validity of their opinions. The rest of the blogpost details suggestions about how to do this, placing a considerable premium upon graphic presentation.
This succinct article is well worth the read for both trial attorneys and testifying experts.