Privilege Does Not Defeat Disclosure Rules, Says Texas Supreme Court
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Labels: 7th Circuit
Labels: 4th Circuit
Dr. McQueen did have training as a researcher with regard to the treatment of addictions, and that training appears to have included knowledge of the interaction between cocaine and alcohol in the body and studies showing a correlation between cocaine and alcohol usage and violence. Under this record, however, the trial court could reasonably conclude that the pharmacological knowledge and studies were not a sufficient basis from which to draw a scientific conclusion about how any particular individual would behave. Of course, one might draw a layman's conclusion from evidence of a correlation between drug dependence and violence that a particular drug user's violence resulted from dependence, but that sort of conclusion is one that a jury is well-suited to make on its own, without the assistance of an expert.See Roberts v. State, No. AP-75,051 (Tex. Crim. App. Apr. 18, 2007).
Labels: 9th Circuit
Although I agree with much of your analysis, I remain troubled by the following aspects of Ramirez.
You have come up with an elegant way to attempt reconciliation of Ramirez and Wilkerson, but I find it significant that the Colorado Supreme Court never itself hints at such a reconciliation. Having decided Wilkerson less than two years ago, I would have thought it necessary for that Court to have at least mentioned that decision in Wilkerson, and to provide some scraps of rationale (especially to this state’s trial judges) as to how the two cases do not conflict. Without any such attempt, I fear future readers will reach the same conclusion you do as to a de facto way to harmonize the decisions: prosecutors win, and criminal defendants don’t. (One of the more interesting aspects of both holdings is that I would be surprised to see eiither one reached in a civil case.) As to your suggestion that Wilkerson would or should be restricted to advocates who expressly present their expert opinions couched in “quantitative, statistical meaning,” the opinion rejected by the Wilkerson court was merely a conclusion characterized by the expert as “more probable than not,” a formulation which rolls off the tongues of Colorado litigators as many trial judges will in fact require every expert opinion to carry such a characterization. This is what leads to my concern that if the Wilkerson court really meant what it seemed to say, then almost every expert opinion offered in this state could be attacked for lacking empirical or methodological support for that claimed probability.
As to your discussion of the differences between Rule 705’s provisions concerning data underlying expert opinions which need not (always) be laid before the jury and the Rule 104 necessity for establishing a sufficient evidentiary foundation for the judge, I am again very troubled by the fact that such a distinction is not hinted at in Ramirez. This is especially troubling because there was no pretrial (or other out-of-the-jury’s-presence) Daubert hearing in Ramirez: the presentation of the expert’s testimony to the jury was the only evidentiary foundation presented to or considered by the trial court. Given that the issue before the Supreme Court was the reliability of that evidence for admission, it seems to me the Court here relies on Rule 705, not to justify not disclosing underlying data to the jury, but to excuse the lack of a decent evidentiary foundation before the trial judge. That appears to me to abandon Rule 104 and Daubert gatekeeping requirements, or at least to carry a high risk that later trial courts will see this reliance on Rule 705 to excuse meaningful Daubert foundations (at least, as you suggest, by prosecutors).
Finally, as to the somewhat run-of-the-mill nature of the nurse’s testimony here, I would be less bothered if this had been a run-of-the-mill decision by our intermediate state appellate court. Here, however, that intermediate court had issued a fairly innocuous, unpublished decision which seems to me to soberly and analytically apply familiar Daubert principles to the very shaky evidentiary foundation laid before the trial court. What makes this case more significant is that the Colorado Supreme Court then exercised its discretionary certiorari review (my impression is that it grants less than 5 percent of the certiorari petitions it receives) to reach out and reverse that innocuous opinion. And it can’t be (can it?) that it did so in order to clarify the “medical certainty” issue, as that was not the decisional basis for either the trial court nor the Court of Appeals. Given that, it is distressing that the Court seized upon this case in one of its relatively infrequent revisitations of Daubert, only to blur the standards for opinion admissibility generally, confusingly resort to Rule 705, and put its stamp of approval on non-objective, “suspiciously” reliable and poorly supported “expert” opinion.
(a) when he committed the shooting?Select all that apply.
(b) when he decided to represent himself?
(c) when he retained his psychiatric expert?
Labels: West Virginia
A recent opinion by Justice Stevens confirmed the breadth and continuing viability of Barefoot. See United States v. Scheffer, 523 U.S. 303, 334 (1998) (Stevens, J., dissenting) ("There is no legal requirement that expert testimony must satisfy a particular degree of reliability to be admissible. Expert testimony about a defendant's 'future dangerousness' to determine his eligibility for the death penalty, even if wrong 'most of the time,' is routinely admitted.") (emphasis added). No member of the Scheffer Court disagreed.Justice Stevens's "recent" dissent in Scheffer can be found here. Scheffer, it may be recalled, was a 1998 decision in which the Supreme Court upheld a military tribunal's ban on polygraph testimony against constitutional challenge. How far Justice Stevens's dissent "confirm[s] the breadth and continuing viability of Barefoot" is a judgment we leave to the reader.
Labels: 5th Circuit
Given the preciseness of the district court’s order, rejecting an expert conclusion expressed in terms of quantifiable, scientific test results, the court’s emphasis on the expert’s failure to test a specific weapon and the absence of peer reviewed literature concerning standards for measurement and error rates did not evidence a misunderstanding of the flexible test we described in [People v. Shreck, 22 P.3d 68, 78-79 (Colo. 2001) (rejecting Frye in favor of a more Daubertian approach)]. Rather than excluding expert opinion merely because it was incapable of quantification, the district court was faced with an opinion expressed in numeric terms, and it appears to have considered precisely those factors most applicable to the admissibility of such a numeric test result.Given the trial court's failure to rule on the defendant's alternative proffer, the Wilkerson court expressed "no opinion concerning the reliability or relevance of any other proffered testimony of the defense expert."
(a) The expert states some opinion.We call this a parlor trick because neither expert confidence requirements nor tests for sufficiency have traditionally been understood in statistical terms, if occasional metaphorical glosses are left to one side. There may be tenable policy arguments for adopting quantitative tests as the substantive standard for certain elements of proof in particular areas of the law. But if so, those policy arguments should be presented to the appropriate governmental branch (the legislature, we're inclined to think) in candid and transparent form -- not smuggled into the decisional law via category mistakes abetted through free-wheeling use of the thesaurus (whether by the judiciary or by attorneys conducting cross). So too, there may be some forms of expert testimony that should not be counted as reliable if specific standards of quantitative analysis go unmet. These may include testimony from experts whose discipline normally requires the use of quantitative methods. Most would also agree that testimony presenting the expert's conclusions in quantitative terms (like the ergonomist's opinion in Wilkerson, as the trial and appellate courts understood it) falls in this category. Our dismay over Wilkerson arose from a worry that the expert was lured unwittingly into quantitative testimonial territory through sneaky cross-examination -- a possibility to which the trial and appellate courts in Wilkerson seemed to us to give unduly short shrift.
(b) The expert is asked on cross (at deposition or during a pretrial hearing on admissibility, or perhaps even at trial) to confirm that the expert holds the opinion to the requisite degree of confidence under the law of the relevant state (e.g., "a reasonable medical probability") or that the expert's conclusion satisfies2 the preponderance test for sufficiency of the evidence (e.g., "more likely than not").
(c) The expert complies, often without the questioning having placed the expert on clear notice that the expert's response will later be taken as importing some numerical or statistical standard.
(d) The objecting party then complains that the expert's opinion is not supported by evidence that would establish the opinion as "probable" or "likely" in any numerical or statistical sense.
(e) Alternatively, the expert declines the cross-examiner's invitation to characterize his or her opinion in terms of likelihood or probability, in which event the objecting party complains that the opinion does not satisfy the operative legal requirements for confidence or sufficiency (a step in which those requirements are sometimes conflated with Daubert's reliability standard).