Now comes a report from Xinhua that experts will leave the employ of the Chinese courts, because that will help foster impartial and unbiased testimony.
The official blog of www.daubertontheweb.com
We note that the argument made by the putative class representatives misconstrues the difference between a district court's evaluation of an expert's reliability, which is required by [Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993)], and an expert's believability or persuasiveness, which is reserved for the trier of fact, see [Quiet Tech. DC-8, Inc. v. Hurel Dubois UK, Ltd., 326 F.3d 1333, 1341 (11th Cir. 2003)]. As we explained in Quiet Technology, a district court's exercise of its gatekeeper function under Daubert "is not intended to supplant the adversary system or the role of the jury." See id. (citation omitted). Accordingly, a district court may not exclude an expert because it believes one expert is more persuasive than another expert. Additionally, a district court cannot exclude an expert because it believes the expert lacks personal credibility because of prior bad acts or other prior instances of untruthfulness. Vigorous cross-examination ensures that these issues of general credibility are properly presented for consideration by the trier of fact. See [Daubert, 509 U.S. at 596]. In evaluating the reliability of an expert's method, however, a district court may properly consider whether the expert's methodology has been contrived to reach a particular result. See General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)] (affirming exclusion of testimony where the methodology was called into question because an "analytical gap" existed "between the data and the opinion proffered"); see also Elcock v. Kmart Corp., 233 F.3d 734, 748 (3d Cir. 2000) (questioning the methodology of an expert because his "novel synthesis" of two accepted methodologies allowed the expert to "offer a subjective judgment . . . in the guise of a reliable expert opinion").Leaving Dr. Matson to one side, how far is it really legitimate for a district judge conducting a Daubert inquiry to "consider" whether "the expert's methodology has been contrived to reach a particular result"? We will not finally resolve this vexing problem in a weblog post. But we would like to discuss a hypothetical.
Four years after scuttling a study into the reliability of fingerprinting, the research arm of the Justice Department is seeking answers to fundamental questions about the grandfather of forensic science.The article quotes an FBI forensics instructor who says that the FBI will probably issue standards within a year, including a minimum number of points needed for declaring a match.
The National Institute of Justice recently called for researchers to explore such crucial issues as how to measure the quality of fingerprints lifted from crime scenes and the accuracy of comparisons made by law-enforcement examiners.
The research solicitation seeks to "provide juries with increased information about the significance and weight of fingerprint evidence" and also to create tools "to improve the fingerprint examination process," said Catherine Sanders, spokeswoman for the Office of Justice Programs, which includes the institute.
The agency's decision is the latest example of an unmistakable shift in the previously defiant world of fingerprint experts. Until recently, they had pointed to nearly a century of convictions in U.S. courts to dismiss calls for a closer examination of their discipline.
The institute's solicitation is "very significant because it's recognizing that there is an area that needs to have research done, and they're willing to step up to the plate and fund it," said Ronald Singer, president of the American Academy of Forensic Sciences.
What the chart appears to show is that the likelihood of appellate affirmance is increasing over time for evidentiary decisions in all three categories.
The methods used to allocate appellate decisions to the listed categories are explained here. Briefly, affirmance rates can be analogized to batting averages. If a district court decision on admissibility is affirmed, we have a "hit." If it is reversed, we have an "out." If the game is called on account of rain during the district court's "at bat" -- e.g., if the appellate court does not reach the lower court's evidentiary decision -- then the decision isn't counted at all. It follows that if the district court's decision is never appealed, it is not in the sample. Note that outcomes are counted expert by expert, not case by case. This matters because one case may involve several experts. Note also that the sample tabulates affirmances or reversals of evidentiary rulings, not judgments. Thus if a trial court's decision admitting expert testimony is held to be erroneous, but harmless error, the outcome is counted as a reversal, not an affirmance.
These figures are maintained for each individual circuit, and also for all circuits taken as a whole. In retrospect, it would have been wise to tabulate subtotals over regular temporal intervals, so that there would be figures, e.g., for each year. Unfortunately, we lacked the foresight to do that. Thus the data points in the chart represent not the affirmance rate prevailing at any fixed point in time, but rather the cumulative affirmance rates as of the relevant date, for all decisions since January 1, 2000. That should mean that the magnitudes of any true temporal trends are understated in the graph, in the following sense. If, e.g., the cumulative overall affirmance rate has climbed from .843 (311/369) as of 4/9/03 to .872 (539/618) as of 2/5/05, or by about 3%, then the affirmance rate for the interval between those two dates will be higher than the terminal cumulative value of .872. In point of fact, for the period between those two dates, the overall affirmance rate will be .916 (228/249), or about 7% higher than in the earlier period.
Because the site is updated every few days to reflect new decisions, and because we are lazy and have a hard disk of only finite size, we do not store backups for every temporal instantiation of the site, and so we do not have daily figures for such cumulative totals. The data points in the graph were obtained by recourse to the Wayback Machine. The graph was charted on an Excel spreadsheet.
(3) Interpretation of the figures
(a) Caveats. Before trying to interpret any temporal trends, we should discuss some of the reasons to doubt their reality. There is a significant element of judgment involved in determinations that an appellate opinion reverses or affirms a district court's evidentiary decision. Some district court decisions exclude testimony only in part; some appellate rulings affirm or reverse only in part. Nor is it always clear whether to count an appellate decision as even pronouncing on lower court evidentiary rulings. One example is presented by the occasional decision involving a petitioner for habeas corpus who claims that his defense counsel's failure to raise a Daubert challenge in the underlying criminal proceedings constituted ineffective assistance. It might seem obvious that such challenges do not necessarily embroil the courts in de novo consideration of whatever Daubert issues might have been posed in the underlying trial, but some district court and appellate decisions have seemed to approach the issue in those terms, perhaps on the theory that if the possibility of a valid Daubert challenge could be ruled out, then no constitutional issues need be reached.
Having done the counting ourselves, we will represent that such uncertain cases constitute a very small fraction of the sample. Although we are not statisticians, we doubt they are of sufficient number that vagaries in their categorization would be responsible for trends of the dimensions suggested by the graph. Nevertheless, it should be noted that one individual has done all the categorizing for this sample, under rules that have not been tested for inter-rater reliability, and it is possible that any apparent trends in the data merely reflect the unconscious evolution of his own tacit methods for resolving ambiguities.
What cannot reasonably be contested is the representativeness of the sample, which includes 100% of all instances of federal appellate review during the relevant time period. (Actually, it is possible we have missed a decision or two, but we will represent that if we have, their number would be very small, and we can think of no reason why there would be any tendency for missed decisions to fall into one category more often than another). The sample, by now, is also of reasonably substantial dimensions (appellate review of evidentiary decisions on 618 experts). To repeat, we're not statisticians. But the sample seems large enough that major trends are not likely the product of random variation.
(b) Hypotheses. The decisions in the sample include both criminal and civil cases, and involve a wide variety of fields of expertise. We have not attempted to evaluate whether the trends toward affirmance are an artifact of the mix of cases, but for example, if criminal cases were found to represent an increasing fraction of the overall total, then that by itself would be one very convincing explanation for a substantial increase in admissibility affirmance rates (since forensic testimony is admitted, and its admissibility is upheld, at a very high rate in criminal cases). It would be a far less plausible explanation, however, for the similar upward trend in exclusion affirmance rates.
We also have not attempted to analyze (because we doubt that these raw data would permit us to analyze) how the trends in affirmance rates may relate to any trends in admissibility rates. One interesting feature of the graph, however, is that the gap appears to be narrowing, over time, between the rates of affirmance for decisions admitting expert evidence and decisions excluding it. Decisions reversing the exclusion of expert evidence have consistently been more numerous, in relative terms, than decisions reversing the admission of such evidence. That trend has been evident since we first started compiling the data, not only for federal appellate decisions as a whole, but also at the individual circuit level. Nevertheless, affirmance rates in these two categories have apparently begun to converge.
One possible explanation for the trends might be that appellate courts have grown more lax in their oversight of Daubert rulings over the past five years. It is inherently difficult to measure something like the prevalent level of stringency in appellate review, and so we may be left with practitioners' intuitions. For ourselves, we have read each decision in the sample, and that process has not left us with the impression that appellate review has been growing more lax.
One other possible explanation might be that as the corpus of appellate decisions under Daubert and Kumho Tire has grown, district courts have enjoyed more guidance on the application of the principles embodied in those decisions, and are therefore better able to judge the outer bounds of their judicial discretion. That hypothesis might suggest that Supreme Court opinions articulating abstract factors pertaining to admissibility are less useful, in guiding specific rulings, than the now substantial body of intermediate appellate decisions mapping recurrent fact patterns into outcomes.
(4) Further research
To urge "further research" is actually something of a misnomer. These data were not originally collected or structured with an eye toward testing any hypothesis. We have simply charted some data that happen, fortuitously, to be at our disposal, at a level of rigor that not only fails to rival that prevailing in the natural sciences, but which is also uninformed by any statistical analysis or techniques going beyond mere tabulation. We have decided to post the data because for all the caveats and uncertainties, we are left with the firm impression, when all is said and done, that they probably do reflect something real about the judicial world, though we are unable to say what.
Deeper analysis would involve a more systematic protocol for data collection, some inquiry into the "mix" of decisions in the corpus, a finer temporal mesh, and perhaps some comparative analysis between circuits, or between federal and state decisions. Such a project would be ambitious. We hope someone undertakes it.
The only way that an outside observer can determine whether any entity feels pain is if the entity communicates distress to the observer. The parties agree that fetuses are unable to communicate, so it is impossible to determine conclusively if the stress responses seen in fetuses in fact translate into an actual pain response, and thus no studies on fetal pain suffered during abortions have been conducted. Both parties agreed that as a result, much of the debate on this issue is based on speculation and inference.320 F. Supp. 2d at 997; see also id. at 1002 (issue is "unsettled in the scientific community").
You are considering having an abortion of an unborn child who will have developed, at the time of the abortion, approximately XX weeks after fertilization. The Congress of the United States has determined that at this stage of development, an unborn child has the physical structures necessary to experience pain. There is substantial evidence that by this point, unborn children draw away from surgical instruments in a manner which in an infant or an adult would be interpreted as a response to pain. Congress finds that there is substantial evidence that the process of being killed in an abortion will cause the unborn child pain, even though you receive a pain-reducing drug or drugs. Under the Federal Unborn Child Pain Awareness Act of 2004 [sic], you have the option of choosing to have anesthesia or other pain-reducing drug or drugs administered directly to the pain-capable unborn child if you so desire. The purpose of administering such drug or drugs would be to reduce or eliminate the capacity of the unborn child to experience pain during the abortion procedure. In some cases, there may be some additional risk to you associated with administering such a drug.This "information" would have to be delivered orally and also in a to-be-developed governmental brochure. If the woman requested anesthesia for the fetus, its provision would be a condition for performance of the abortion. Because physicians and patients suffer no real burden from governmentally mandated paperwork, the woman would also be required to complete an "Unborn Child Pain Awareness Decision Form," which the provider would be required to retain on file. Because civil penalties of $100,000 (first violation) or $250,000 (subsequent violations) would not afford sufficient incentives for providers to comply, and because one salutary method for deterring physician misbehavior is to promote private lawsuits seeking exorbitant damages, a private right of action would be created for women whose providers did not supply the "information" as prescribed, to include claims for "actual and punitive damages." No word in the legislation on whether the "actual" damages would be limited to pure economic loss or would also encompass the mother's "pain and suffering." If the latter, the legislation imposes no cap.
It is the intent of the legislature that the courts of the State of Georgia not be viewed as open to expert evidence that would not be admissible in other states. Therefore, in interpreting and applying this Code section, the courts of this state may draw from the opinions of the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); General Electric Co. v. Joiner, 522 U.S. 136 (1997); Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137 (1999); and other cases in federal courts applying the standards announced by the United States Supreme Court in these cases.This statutory language is admittedly vague, but on one reading, it comes close, at least in spirit, to enacting a most-favored-nation rule for Georgia malpractice defendants: If some significant body of jurisdictions would reject the plaintiff's evidence on the standard of care or causation, then Georgia's courts should reject it too.