Excluding Some Expert Testimony in False Allegation Cases
For a list of questions to ask experts, see the bottom of this page.
Daubert v Merrell Dow Pharmaceuticals Inc., 509 U.S., 113 S Ct 2786 (1993) Daubert is one of the most important decisions to come along in years. In the most simple terms, Daubert states that all expert testimony must be based on scientific foundation and not simply an opinion. While that may not seem important, consider this. Many innocent men have been convicted on charges of sexual abuse, simply because of the “expert” opinion of a psychologist; an opinion that was absolutely worthless, but was accepted by the jury because that psychologist was qualified as an “expert,” and was called “Doctor.” Also consider that, prior to Daubert, when psychologists testified for both the prosecution and the defense, the “winner,” was the one, not necessarily with the facts or the truth, but with the “silver tongue.” In Daubert, the Court stated;
- The trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Daubert, 113 S Ct at 2795.
- Experts purport to offer testimony that is scientific. By the use of the adjective “scientific,” Mr. Justice Blackmun wrote, the witness is implying a “grounding in the methods and procedures of science”. Id. at 2795.
- “Knowledge” “connotes more than subjective belief or unsupported speculation”. Id. at 2795. “In order to qualify as ‘scientific knowledge’, an inference or assertion must be derived by the scientific method. Proposed testimony must be supported by appropriate validation, i.e., ‘good grounds’, based on what is known.”
- “Experts” permitted wide latitude. Therefore an expert’s opinion must “have a reliable basis in the knowledge and experience of his discipline.” Daubert at 2796. Scientific Methodology is Essential.
- “Scientific methodology today is based on generating hypotheses and testing them to see if they can be falsified; indeed, this methodology is what distinguishes science from other fields of human inquiry.” Id. at 2796.
- “Key Question” which must be answered is, “Whether a theory or technique is scientific knowledge that will assist the trier of fact and whether it can be (and has been) tested.”
- The Court’s instructions to the trial courts is that when “expert”, “scientific” testimony is offered, the trial judge must determine at the outset, pursuant to Rule 104, whether the expert is proposing to testify to Scientific knowledge that will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue. Focus must be solely on principles and methodology “error rate” Court’s analysis cites to United States v Smith, 869 F2d 348, 353-354 (CA7 1989). Scientists typically distinguish between ‘validity’ (does the principle support what it purports to show?) and ‘reliability’ (does application of the principle produce consistent results?) Our reference here is to evidentiary reliability; that is, trustworthiness. In a case involving scientific evidence, evidentiary reliability will be based upon scientific validity. Daubert at 2795.
Idaho v Wright, 497 US 805, 110 S Ct 3139 (1990). In Idaho v Wright, the Court struck down a conviction based in part upon the testimony of a physician as to what a child had told him. The Court insisted upon “particularized guarantees of trustworthiness” and said that this trustworthiness could not be “bootstrapped” from other evidence, but must be seen to arise from the statements themselves which should be analyzed from: “The totality of the circumstances that surround the making of the statement and that render the declarant particularly worthy of belief…..Thus, unless an affirmative reason, arising from the circumstances in which the statement was made, provides a basis for rebutting the presumption that a hearsay statement is not worthy of reliance at trial, the Confrontation Clause requires exclusion of the out-of-court statement.” Wright, 110 S Ct at 3149-3151.
White v Illinois, 502 U.S., 112 S Ct 736 (1992). In White v Illinois, the Court spoke to the medical diagnosis exception again and reasoned: “…the evidentiary rationale for permitting hearsay testimony regarding spontaneous declarations and statement made in the course of receiving medical care is that such out-of-court declarations are made in contexts that provide substantial guarantees of their trustworthiness…..a statement made in the course of procuring medical services, where the declarant knows that a false statement may cause misdiagnosis or mistreatment, carries special guarantees of credibility….” White, 112 S Ct 748.emphasis added.
New Jersey v Margaret Kelly Michaels, 136 N.J. 299, 642 A2d 1372 (June 13,1994). A unanimous Supreme Court overturned the conviction of Ms. Michaels on the basis of science and reliability. The Court stated;
- The issue we must determine is whether the interview techniques used by the State in this case were so coercive or suggestive that they had a capacity to substantially distort the children’s recollections of actual events and thus compromise the reliability of the children’s statements and testimony based on their recollections. New Jersey vs. Margaret Kelly Michaels, 136 N.J. 299, 642 A 2d 1372, 1377 (June 13, 1994).
- If a child’s recollection of events has been molded by an interrogation, that influence undermines the reliability of the child’s responses as an accurate recollection of actual events. Michaels 136 N.J. 299, 642 A 2d 1372, 1377 (June 13, 1994).
- We note that a fairly wide consensus exists among experts, scholars, and practitioners concerning improper interrogation techniques. They argue that among the factors that can undermine the neutrality of an interview and create undue suggestiveness are a lack of investigatory independence, the pursuit by the interviewer of a preconceived notion of what has happened to the child, the use of leading questions, and a lack of control for outside influences on the child’s statements, such as previous conversations with parents or peers. 136 N.J. 299, 642 A 2d 1372, 1377 (June 13, 1994).
- A lack of objectivity also was indicated by the interviewer’s failure to pursue any alternative hypothesis that might contradict an assumption of defendant’s guilt, and a failure to challenge or probe seemingly outlandish statements made by the children. The record is replete with instances in which children were asked blatantly leading questions that furnished information the children themselves had not mentioned. Michaels 136 N.J. 299, 642 A 2d 1372, 1380 (June 13, 1994).
- To ensure defendant’s right to a fair trial a pretrial taint hearing is essential to demonstrate the reliability of the resultant evidence. 136 N.J. 299, 642 A 2d 1372, 1382 (June 13, 1994) 13. Assessing reliability as a predicate to the admission of in-court testimony is a somewhat extraordinary step. Nevertheless, it is not unprecedented. [Citing to Mason v Braithwaite, 432 US 98, 97 S Ct 2243, 53 L Ed2d 140 (1977) & Jackson v Denno, 378 US 368, 84 S Ct 1774, 12 L Ed2d 908 (1964)] 136 N.J. 299,642 A 2d 1372, 1381 (June 13, 1994).
Specific points addressed by the Michaels Court;
- Failure to videotape initial interview;
- Lack of control for outside (family) influences;
- Absence of spontaneous recall in the supposed victims;
- Interviewer bias – A preconceived notion that alleged wrongdoer, “did it”;
- Repeated leading questions;
- Incessant questioning, either by examiners of by family members;
- Multiple interviews;
- Transmission of suggestion to children ie: tone of voice;
- Positive reinforcement of inculpatory statements;
- Negative reinforcement of exculpatory statements;
- Failure to probe outlandish statements;
- Contact with peers and reference to their statements;
- Use of mild threats, bribes or cajoling;
- Vilification of alleged wrongdoer.
The following supports a Motion in Limine to exclude prosecution expert testimony as not admissible because it is not generally accepted in scientific community and cannot be properly done.
The five factors which the Supreme Court adopted are:
- the evidence will assist the trier of fact to understand the evidence or to determine a fact in issue;
- the evidence will add to the common understanding of the jury;
- the underlying theory is generally accepted as valid;
- the procedures used are generally accepted as reliable if performed properly;
- the procedures were applied and conducted properly in the present instance.
The concept of sexual abuse accommodation syndrome does not meet any of the requirements of the five factors. The concept was advanced by Roland Summit, M. D., not as an aid to understanding, nor as a determinant of fact, but rather, by his own description, as a consciousness raising experience for mental health professionals to sensitize them to what Summit believed was a tendency to minimize or be unaware of the prevalence of sexual abuse. He maintains he never intended the concept to be used to make any diagnosis or determination of fact and that people who attempt to use it in that fashion are misusing his concept. There is no factual basis for this concept at all. There is no scientific quantifiable evidence to support it. It is only a speculative, subjective, and personal conceptualization. It cannot add to the common understanding of the jury. It is not generally accepted in the scientific community. It has been specifically rejected even for further study by the Revision Committee of DSM III-R and judged to be without scientific merit (Corwin, 1988). The Supreme and Appellate Courts in several states have ruled that the use of this concept is not permitted because it does not meet the requirement to be generally accepted in the scientific community. Most recently the Report No. 8 of the San Diego County Grand Jury, June 29, 1992, which investigated the handling of sexual abuse cases for several years, decries the use of the sexual abuse accommodation syndrome, holds it not generally accepted, and regards it as confusing and harmful to children and families.
The concept of sexual abuse accommodation syndrome cannot be used in a proper manner by anybody. It is not possible for any human being to properly use any procedure, no matter what it is, for which it cannot be demonstrated that there is a better than chance 50% reliability of the outcomes. There is no evidence that this concept improves upon chance. Rather, a recent analysis of decision making in sexual abuse allegations suggests it may contribute to a grotesquely unacceptable level of false positives, that is concluding there was abuse when there was not (Horner & Guyer, 1991a, b). If a procedure cannot be shown to improve upon chance level, the only operative principle is chance and any procedure from casting chicken bones, reading goat entrails, flipping coins, or hours of sophistry can be followed by chance events.
The concept of behavioral indicators that can be used to establish whether or not a person has been sexually abused also does not meet any of the five requirements of the Supreme Court. There is no scientific quantifiable data that establishes a causal relationship between any of the behaviors on the various lists and a prior experience of sexual abuse. There is no scientific quantifiable data that demonstrates a rate of any of these behaviors in a sample advanced as sexually abused that exceeds the base rate of those behaviors in the nonsexually abused population. The behaviors are at most stressor responses which can be associated with many, many stressor experiences other than abuse. To offer nondiscriminatory evidence suggesting through an expert that it can be used to make a discrimination is to generate great confusion, misperception, and damage the ability of a jury to reach the most rational decision possible (Arkes & Harkness, 1983; Bell & Loftus, 1989; Cutler, Dexter, & Penrod, 1989; Faigman, & Baglioni, 1988; Faust, 1989; Saks, & Kidd, 1980-81; Kovera, Levy, Borgida, & Penrod, 1992).
In that, according to Daubert and Goodson vs. The State of Mississippi, there are no “characteristics” of a sexually abused child, short of absolute medical findings, an “expert” opinion that a child matches the profile of a sexually abused child,” is absolutely worthless. Any expert opinion must be based on scientific foundation and not simply the “flip” of a coin.
Henry Krugman, M. D., Director of the Kempe Center, has written, “The medical diagnosis of sexual abuse usually cannot be made on the basis of physical findings alone. With the exception of acquired gonorrhea or syphilis, or the presence of forensic evidence of sperm or semen, there are no pathognomic findings for sexual abuse” (Krugman, 1989, p. 165-166). As an example, there is no validity to the statement, “An absent hymen means probable sexual intercourse.” Paradise (1989) examines the significance of hymenal tissue and concludes that attempting to use physical findings of the hymenal tissue will produce 65% false positives in cases of penile penetration and 73% false positives in cases of digital penetration. There is no evidence supporting the conclusion that hymenal tissue or the absence thereof can be used to conclude a high probability of sexual intercourse.
Use of concepts or phrases such as “often”, “most commonly,” “not unusual,” “are likely” imply some quantification and some data. If there is no quantification, but only reliance upon personal experience and non systematic personal observations this is not science, but personal speculation. It is not proper nor is it acceptable in the scientific community to use clinical experience or clinical observations to support such claims. There is over forty years of research demonstrating that clinical observations and experience are unreliable and cannot be used as anything other than a possible source for hypotheses which then must be carefully examined by a quantified approach (Einhorn & Hogarth, 1978; Brehmer, 1980; Dawes, 1989; Dawes, Faust, & Meehl, 1989; Stanovich, 1992; Turk & Salovey, 1985). This same criticism applies to any opinions offered as testimony which are based upon anecdotes (Herbert, 1977).
While testimony based upon experience may be legally admissible, it cannot be offered under the rubric of science nor as being generally accepted in the scientific community. Reliance upon experience alone may, in fact, increase error (Faust, 1986; Gambrill, 1990). In the absence of any support for accuracy such speculative, non scientific opinion cannot assist the jury nor add to their understanding except to increase an erroneous understanding. Use of experience alone as support for opinion is not scientifically sound nor is it accepted. Therefore the use of experience as a base for an opinion is not able to be done properly nor is there any basis for seeing it as reliable.
References supporting are as follows:
- Arkes, H. R. & Harkness, A. R. (1983). Estimates of contingency between two dichotomous variables. Journal of Experimental Psychology: General, 112(1), 117-135.
- Brehmer, B. (1980). In one word: Not from experience. Acta Psychological, 45, 223-241.
- Bell, B. E., & Loftus, E. F. (1989). Trivial persuasion in the courtroom: The power of (a few) minor details. Journal of personality and social Psychology, 56(5), 669-679.
- Corwin, D. L. (1988). Early diagnosis of child sexual abuse: Diminishing the lasting effects. In G. E. Wyatt & G. J. Powell (Eds.), Lasting Effects of Child Abuse (pp. 251-269). Newberry Park, CA: Sage Publications.
- Cutler, B. L., Dexter, H. R., & Penrod, S. D. (1989). Expert testimony and jury decision making: An empirical analysis. Behavioral Sciences & the Law, 7(2), 215-225.
- Dawes, R. M. (1989). Experience and validity of clinical judgment: The illusory correlation. Behavioral Sciences & the Law, 7(4), 457-467.
- Dawes, R. M., Faust, D., & Meehl, P. E. (1989). Clinical versus actuarial judgment. Science, 243, 1668-1674.
- Einhorn, H. J., & Hogarth, R. M. (1978). Confidence in judgment: Persistence of the illusion of validity. Psychological Review, 85(5), 395-416.
- Faigman, D. L., & Baglioni, A. J. (1988). Bayes’ theorem in the trial process: Instructing jurors on the value of statistical evidence. Law and Human Behavior, 12(1), 1-17.
- Faust, D. (1986). Research on human judgment and its application to clinical practice. Professional Psychology: Research and Practice, 17(5), 420p;430.
- Faust, D. (1989). Data integration in legal evaluations: Can clinicians deliver on their premises? Behavioral Sciences and the Law, 7(4), 469-483.
- Gambrill, E. (1990). Critical Thinking in Clinical Practice. San Francisco. Josey-Bass.
- Herbert, V. (1977). Acquiring new information while retaining old ethics. Science, 198, 690-693.
- Horner, T. M., & Guyer, M. J. (1991). Prediction, prevention, and clinical expertise in child custody cases in which allegations of child sexual abuse have been made: I. Predictable rates of diagnostic error in relation to various clinical decision making strategies. Family Law Quarterly, 25(2), 217p;252.
- Horner, T. M., & Guyer, M. J. (1991). Prediction, prevention, and clinical expertise in child custody cases in which allegations of child sexual abuse have been made: II. Prevalence rates of child sexual abuse and the precision of ‘tests’ constructed to diagnose it. Family Law Quarterly, 25(3), 381p;409.
- Krugman, R. D. (1989). The more we learn, the less we know “With reasonable medical certainty”? Child Abuse & Neglect, 13 (2), 165-166.
- Kovera, M. B., Levy, R. J., Borgida, E., & Penrod, S. D. (1992, March). Expert witnesses in child sexual abuse cases: Effects of expert testimony and cross-examination. Paper presented at the meeting of the American Psychology-Law Society, San Diego, CA.
- Paradise, J. E. (1989). Predictive accuracy and the diagnosis of sexual abuse: A big issue about a little tissue. Child Abuse & Neglect, 13 (2), 169-176.
- Saks, M. J., & Kidd, R. F. (1980-81). Human information processing and adjudication: Trial by heuristics. Law & Society Review, 15(1), 123-159.
- Stanovich, K. E. (1992) How to Think Straight About Psychology. New York. Harper Collins.
- Turk, D. C., & Salovey, P. (1985). Cognitive structures, cognitive processes, and cognitive-behavior modification: II. Judgments and inferences of the clinician. Cognitive Therapy and Research, 9(1), 19-33.
One of the most important aspects in either preparing for trial or during trial is in the proper and adequate questioning of experts.