EDITOR'S COLUMN, Vol. 12 No. 5 (1994)

William F. Gallagher

EDITOR'S COLUMN

Scientific Testimony After Daubert: A Guide for Counsel and The Court

The United States Supreme Court decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S.Ct. 2786 (1993) set out new guidelines for determining admissibility of disputed scientific testimony at trial. The American College of Trial Lawyers has published Standards and Procedures for Determining the Admissibility of Expert Evidence After [Daubert.][fn**] These standards and procedures appear as the lead article in this issue of the Forum, courtesy of the American College of Trial Lawyers and its Committee on Federal Rules of Evidence. We sought permission to publish the Standards and Procedures because we believe it provides an excellent analysis and a procedural framework for dealing with the admissibility of scientific evidence after Daubert.

On the day that this issue of the Forum goes to press, Law Week reports that the Arizona Court of Appeals and CA9 split as to the admissibility of DNA evidence. The Arizona Court of Appeals held July 26, 1994 that prosecution experts in a sex crime case improperly used DNA profiling evidence generated by the FBI when they told the jury that a random DNA "match" was rare, and that DNA testing can uniquely identify every person (Arizona v. Hummert, Ariz Ct.App. Div 1, No. 1 CA-CR 92-098 (7/26/94)). The State Supreme Court had ruled in Arizona v. Bible, 858 P.2d 1152 (1993) that although DNA profiling is sufficiently reliable for use in evidence, the random match probability calculations are inadmissible for lack of general consensus as to their reliability.

The U.S. Court of Appeals for the Ninth Circuit held admissible on July 25 a government's expert declaration in a rape-murder case that there was a one in 2,563 chance that DNA in sperm found on the victim could belong to a randomly selected American Indian other than the defendant (U.S. v. Chischilly, CA9, No. 92-10619 (7/25/94)). This court held that, given the substantial body of scientific literature and opinion arrayed on both sides of the question, it cannot be said that the FBI's statistical methodology employed enjoyed only the "minimal support" that would disqualify it under Daubert. It held that the FBI's DNA extraction and matching procedures, as well as the somewhat conservative matching statistics introduced, all passed muster under Daubert. See 63 LW 1023 (8/16/94).

Some of our members believe that the American College's Standards and Procedures represent a somewhat restrictive reading of Daubert. They argue that the Supreme Court used language emphasizing the liberality of the Federal Rules of Evidence, and note that scientific knowledge is not certain. The Daubert opinion's analysis starts by noting that Rule 401 of the Federal Rules of Evidence favors admission of all relevant evidence and that the rules' basic standard of relevance is a "liberal one." 113 S.Ct. at 2794. The court notes that juries, assisting by vigorous cross-examination, opposing evidence, and careful instruction by the trial court, remain the appropriate means of attacking "shaky but admissible evidence." 113 S.Ct. at 2798.

It is clear from the decision that scientific validity of underlying principles, reasoning, and methodology are preliminary questions of fact for the court. Judges are "gatekeepers." Considering this function, it is useful to remember that "the exercise of discretion to omit evidence in a civil case should be viewed more critically than the exercise of discretion to include evidence. It is usually possible through instructions or admonitions to the jury to cure any damage due to inclusion of evidence, whereas it is impossible to cure any damage due to the exclusion of evidence." Martins v. Connecticut Light & Power Co., 35 Conn. App. 212, 217 (1994); Batick v. Seymour, 186 Conn. 632, 637 (1982); C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 8.1.3.