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6

In Chambers

| Fall 2016

Change the name of the jurisdiction and the science,

and this hypothetical case paints a realistic picture of

the current state of the law in most jurisdictions. Ap-

pellate courts, limiting themselves to the information

presented at trial, are forced to affirm trial courts’

Daubert

5

rulings under an abuse-of-discretion standard

of review. By confining themselves to the record and

failing to conduct any independent research on scien-

tific validity, courts of appeals fail to discover junk sci-

ence. The solution is for appellate judges to conduct

independent research of

Daubert

issues.

Daubert

scientific issues represent a unique area of

the law. More so than traditional evidentiary issues,

Daubert

issues transcend individual cases. A ruling on

the validity of a science utilized in one case will affect

every other case in that

jurisdiction.As

the hypotheti-

cal case demonstrates, this can be disastrous if the par-

ties are unprepared and neglect to provide the trial

judge with any useful information regarding a scientific

theory’s validity. Legal resolutions of this type harm not

only the litigants of one case, but all future litigants in

that court.

Standard of Review

In appellate law, the preliminary issue is the standard

of review. If appellate judges may only review a trial

court’s

Daubert

ruling for an abuse of discretion, they

must limit themselves to the record before them. So

to permit an appellate judge to conduct independent

research, appellate courts must adopt a hybrid stan-

dard of review that defers to the trial judge on matters

concerning the application of the science to the facts

of the particular case, but reviews

de novo

the validity

of the science itself.

A hybrid standard is not unheard of and is, in fact,

advocated both in appellate court opinions

6

and in

scholarly literature. Kesan points out that “[t]he gate-

keeping function assumes that trial judges possess so-

phistication and experience in scientific matters . . . [but]

[t]here is little reason to believe that trial judges can

readily equip themselves with such expertise.”

7

Kesan

contends that

de novo

appellate review of district court

findings on the scientific knowledge prong of

Daubert

would create a body of appellate opinions that carefully

review scientific theories and

methodologies.As

appel-

late courts repeatedly face the same sorts of scientific

evidence, more uniform adjudication at the trial and

appellate levels will result. In addition, careful appellate

scrutiny would permit consideration and development

of distinct validation criteria for expert testimony re-

lating to different scientific or technical disciplines. Fi-

nally, appellate courts are also well situated to consider

the broad public policy issues associated with admis-

sibility determinations.

8

Despite the advantages of a hybrid standard of review

that would permit appellate judges to conduct indepen-

dent research of

Daubert

issues, the Supreme Court of

the United States has yet to establish one. Regrettably,

in

General Elec. Co. v. Joiner,

9

the Court stated, without

elaboration, that federal district judges’

Daubert

rulings

were to be reviewed for an abuse of discretion. But in

that case, the issue before the Court was whether an

appellate court could apply a different standard of re-

view when the district court admits scientific evidence

from that used when it excludes scientific evidence.

The Supreme Court firmly rejected that notion, con-

cluding that the same standard of review should apply

in either instance.The Court then stated that abuse of

discretion was the appropriate standard but did not

address the inconsistencies that this standard would

cause or the possibility of a hybrid standard.

Assessing Validity

The truth is, trial judges are in no better position

than appellate judges to assess the validity of a scien-

tific theory.Traditionally, appellate courts defer to trial

court evidentiary rulings because the trial judge has

the benefit of seeing witnesses in person and evaluating

their credibility. But in

Daubert

cases, while the expert’s

credibility is a factor, the bigger issue is the underlying

science’s validity. So, it is neither necessary nor useful

to give any particular weight to the trial judge’s conclu-

sion regarding this issue. Judges are judges, and wheth-

er trial or appellate, they are equally capable (or inca-

pable) of determining a scientific theory’s validity.That

determination is reached by independent research.And

if a trial judge is capable of independent research, an

appellate judge is even more capable. Simply by virtue

of their job descriptions, appellate judges are generally

more accustomed to research than trial judges.And ap-

POINT

(Keasler, continued from page 4)

(continued on next page)