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Follow the blue links for specific law on DAUBERT, including the U.S. Supreme Court's determination in early 1999 that the decision applies to any expert,  not just scientists.(Kumho Tire)

EXPERT WITNESSES: GATEKEEPING IN THE DISTRICT COURT

INTRODUCTION ....................................                              1

Latest NEWS:   KUHMO TIRE   119 S.Ct. 37, 142 L.Ed.2d 29, 69 USLW 3228,      (1998)

Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S.Ct. 2786, 509 U.S. 579, (U.S.Cal. 1993)  ..........           2
   Rule 702, governing expert testimony                      ....             4                                                                                   SECOND STEP: THE JOINER CASE       ............                          6
Standard of review is abuse of discretion      ....                          7                                                                           LOUISIANA ADOPTS DAUBERT: FORET        .............      8                                                                                      EXPERT  OPINION ON TRUTHFULNESS       ...........         12                                                                                              A GATEKEEPING HEARING IS INDICATED   ...........         13                                                                                        POLYGRAPH: SCIENCE?          .......................                       14                                                                                          PROCEDURE     ........................................                               15                                                                                             A "per se" bar to certain evidence after DAUBERT?        ........    16                                                                      DAUBERT  FOR NON-SCIENTIFIC EXPERTS       ........       16                                                                                          OK, WHAT ABOUT THE POLYGRAPH      ...................         18                                                                          SENTENCING  NOT SUBJECT TO "GATEKEEPING"   ....     20                                                                  UNACCEPTABLE METHOD: "Lifecodes"       .................           21                                                                              THE LOUISIANA LITMUS TEST: Quatrevingt: .........                22

MOTION FOR DAUBERT HEARING:(SAMPLE) -27-

This criminal case concerns the admissibility of expert testimony with regard to Post_Traumatic Stress Disorder (PTSD) of a sexually abused victim.

After a jury trial, defendant was convicted of two counts of indecent behavior with juveniles. On appeal, his convictions were reversed and the case remanded to the trial court for a new trial. The majority of the court of appeal held that the trial court erroneously admitted the testimony of the State's expert witness by failing to apply the factors enunciated in Daubert v. Merrell Dow Pharmaceuticals, Inc., n1 and State v. Foret, n2 to test the reliability of the theory of post_traumatic stress disorder in the diagnosis of sexual abuse. We granted the State's application for a writ of certiorari to consider the admissibility of this type of expert testimony as substantive evidence [*2] bearing on the credibility of the victim's testimony and the question of the accused's guilt or innocence.

At trial, over the objection of the defendant, the State was allowed to introduce the expert testimony of Renee Thompson Ring, a licensed clinical social worker. n6 The State wanted to use Ms. Ring's expert opinion to establish that A.C.'s clinical symptoms were consistent with a sexual abuse victim; in other words, to use her testimony as substantive evidence of sexual abuse. The trial court allowed Ms. Ring to testify as an expert without conducting a Daubert hearing to test the reliability of PTSD in the diagnosis of sexual abuse.

The court of appeal, in a two to one decision, reversed the convictions and remanded for a new trial, finding the trial court abdicated its responsibility to "act as a gatekeeper," by failing to apply the Daubert and Foret factors to test the reliability of the theory of PTSD in the diagnosis of sexual abuse, which erroneously admitted expert testimony affected substantial rights of the accused. State v. Chauvin, 01_2000 (La. Ct. App. 1 Cir. 3/28/02), 818 So. 2d 323 (unpublished). We granted the State's writ to further study this problematic issue and after a careful review, we agree with the court of appeal majority and affirm.

La. Code Evid. art. 702 sets forth the general rule governing the admissibility of expert testimony in Louisiana:

HN1If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion [*8] or otherwise.

In Foret, we adopted the test set forth in Daubert, which "set forth a means for determining reliability of expert scientific testimony and answered many questions as to proper standards for admissibility of expert testimony." Foret, 628 So. 2d at 1121. The Daubert court replaced the test that had been used for admissibility of expert scientific testimony. The former test was based on a "short, citation_free 1928 (sic) decision" of the District of Columbia Court of Appeals, Frye v. United States, 54 U.S. App. D.C. 46, 54 App.D.C. 46, 293 F. 1013 (1923). The court replaced Frye with a new standard that requires the trial court to act in a "gatekeeping" function to "ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." Daubert, 509 U.S. at 589, 113 S. Ct. at 2795.

[Pg 6] The similarity between La. Code Evid. art. 702 and its federal counterpart, along with our case State v. Catanese, 368 So. 2d 975 (La. 1979), which had already provided similar guidelines for the admission of scientific evidence, persuaded this Court to adopt HN3Daubert's requirement that, in order for technical or scientific expert testimony to be admissible under La. Code Evid. art. 702, the scientific evidence must rise to a threshold level of reliability. State v. Quatrevingt, 93_1644, p.11_12 (La. 2/28/96), 670 So. 2d 197, 204.

The State argues that the testimony was not so unusual or complex as to require a Daubert hearing to test its reliability. Relying upon Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152, 119 S. Ct. 1167, 1176, 143 L. Ed. 2d 238 (1999), n8 the State asserts that the determination of how to test an expert's reliability is in the trial judge's discretion. The record before us shows the trial court held a brief hearing before Ms. Ring testified. The State submits that the trial judge can use his or her own experience and knowledge after hearing briefly what the testimony will be to determine that the testimony is commonly accepted among professionals and thus is reliable and relevant. The State contends that this matter is distinguishable from Foret, because [*12] Ms. Ring did not testify that A.C. was a victim of sexual abuse nor did she testify as to A.C.'s credibility. n9

Expert testimony in child sexual abuse litigation falls into two categories: (1) expert testimony offered as substantive proof that a child was sexually abused, and (2) expert testimony offered for the more limited purpose of rehabilitating a child's impeached credibility. Id., §5.12, p.459. Expert testimony offered as substantive evidence takes several forms, including testimony that in the expert's opinion, the child's symptoms are consistent with sexual abuse. Id., §5.34, p.527. When such testimony is offered by the prosecution, the purpose is to prove that abuse occurred.

In many child sexual abuse prosecutions, prosecutors offer expert PTSD_based testimony that the child complainant's behavior is consistent with being sexually abused. Lisa Askowitz & Michael Graham, The Reliability of Expert Psychological Testimony in Child Sexual [*19] Abuse Prosecutions, 15 Cardozo L. Rev. 2027, 2046 (1994). Because evidence of PTSD is admissible in other contexts, prosecutors of child sexual abuse cases might attempt to capitalize on PTSD's legacy of admissibility by offering testimony which refers explicitly to PTSD. Steele, p. 946. The expert explains the diagnostic category, and then matches the behavioral characteristics of the child with the PTSD criteria. Askowitz, p. 2046. In its true form, testimony based on PTSD suggests only that sexual abuse may be the cause of the child's behavior, but it does not rule out other traumatic causes of the behavior. Id. PTSD assumes the presence of a stressor and then attaches a diagnosis to the child's reactions to it. Id. PTSD merely is a therapeutic tool; it is not designed to determine sexual abuse. Id. See also Steele, p. 946.

Even though PTSD is a catalogued condition of the DSM, and has been admitted into evidence by our courts in various matters, there is no evidence in the record before us that the trial court performed its "gatekeeping" function of determining that the testimony of Ms. Ring was both relevant and reliable as substantive proof that sexual abuse occurred.

The literature on the subject discusses PTSD and related disorders and syndromes in the context of treating victims of a traumatic experience. See, e.g., Woodling & Kossoris, Sexual Misuse: Rape, Molestation, and Incest, 28 Pediatric Clinics N.Am. 489, 489_490 (1981); Burgess & Holstrom, Rape: Victims of Crisis, 47_ 50 [*26] (1974); Comment, The Psychologist as Expert Witness: Science in the Courtroom?, 38 Md.L.Rev. 539, 580 n. 207 (1979). The literature concludes that a PTSD diagnosis is essentially a therapeutic aid, rather than a tool for the detection of sexual abuse, see State v. J.Q., 130 N.J. 554, 617 A.2d 1196, 1203_05 (1993); People v. Bledsoe, 36 Cal.3d 236, 203 Cal. Rptr. 450, 459, 681 P.2d 291, 300 (1984);

Because causes other than sexual abuse may trigger PTSD C the traumatic event being unable to be verified objectively, its occurrence must necessarily [*27] be assumed C a diagnosis of PTSD does not reliably prove the nature of the stressor. Hutton, 663 A.2d at 1294_1295.

We are concerned about the use of PTSD evidence as substantive evidence that sexual abuse has occurred, when such evidence is not limited to explaining "superficially bizarre" reactions common to victims of child sexual abuse but which [Pg 15] are uncommon to the experience of jurors. First, the psychiatric procedures used in developing the diagnosis of PTSD are designed for therapeutic purposes and are not reliable as fact_finding tools to determine whether sexual abuse has in fact occurred. See Hall, 412 S.E.2d at 889. And secondly, the potential for prejudice looms large because the jury may accord too much weight to expert opinions stating medical conclusions which were drawn from diagnostic methods having limited merit as fact_finding devices. Id. n14

The diagnostic criteria for PTSD are thus not intended to provide clinical or forensic tools for determining whether child sexual abuse has occurred but for dealing with the aftermath of severe traumatic events that have occurred in a variety of contexts.

The DSM_IV adds the following general observation: "nonclinical decision makers should also be cautioned that a diagnosis does not carry any necessary implications regarding the causes of the individual's mental disorder or its associated impairments. . . ." DSM_IV at xxxiii. The psychiatric diagnosis of PTSD was not designed to determine sexual abuse, and the threshold criteria for the diagnosis of PTSD are not specific to child sexual abuse. Askowitz, [*29] 15 Cardozo L. Rev. at 2098. Furthermore, there [Pg 16] are a variety of stressors in a child's life that can produce PTSD_type symptoms, and there is no baseline data about the presence of PTSD_type symptoms in nonabused and otherwise nonstressed children. Id. In short, there is not a sufficient consensus within the mental health community that there are certain behavioral symptoms that can lead a mental health professional to a conclusion of "consistent with child sexual abuse." Id.

In Foret, we concluded that HN5evidence of Child Sexual Abuse Accommodation Syndrome (CSAAS) is of highly questionable scientific validity and fails to unequivocally pass the Daubert threshold test of reliability. Foret, 628 So. 2d at 1127. Similarly, because we find that a diagnosis of PTSD is certainly more general than a diagnosis of CSAAS, the reliability of expert PTSD testimony on causation can be no greater than that concerning CSAAS. Hutton, 663 A.2d at 1294. If the reliability of expert PTSD testimony on causation can be no greater than testimony of CSAAS as substantive proof that abuse occurred, we find expert testimony of PTSD [*30] is inadmissible for the purpose of substantively proving that sexual abuse occurred.

We come to this conclusion because the jury is asked to make the connection between a diagnosis of PTSD and the stressor, child sexual abuse, that is alleged to have caused it. Identification of the stressor is an important component of the PTSD diagnosis. But it is widely accepted that PTSD has not been proven to be a reliable indicator that sexual abuse is the trauma underlying the disorder or that sexual abuse has even occurred. The psychiatric diagnosis of PTSD was not designed to determine sexual abuse, Askowitz, 15 Cardozo L. Rev. at 2098, and the psychological evaluation of a child suspected of being sexually abused is, at best, an inexact science. Cressey, 628 A.2d at 699. For these reasons, we find that admission of expert testimony of a diagnosis of PTSD for the purpose of substantively proving sexual abuse fails to pass the Daubert threshold [Pg 17] test of scientific reliability.

n16 In a conference with the judge outside the presence of the jury, regarding the defense's objection to Ms. Ring testifying, the prosecutor stated the purpose of Ms. Ring's testimony was to show clinical symptoms consistent with sexual abuse. In his direct examination of Ms. Ring, the prosecutor asked if A.C.'s symptoms "were those consistent with a child who had been sexually abused."

CONCLUSION

Under these circumstances, we find that the State introduced the expert testimony regarding A.C.'s diagnosis of PTSD for the purpose of substantively proving that sexual abuse occurred. There is no indication that the State attempted to limit this evidence to explain delayed reporting, which could be construed as [Pg 18] apparently inconsistent with having been sexually abused. There is no showing that PTSD evidence is reliable and accurate as substantive proof of sexual abuse and therefore, it is inadmissible for this purpose. We hold that this evidence, like CSAAS_based evidence, should be admissible only for the limited purpose of explaining, in general terms, certain reactions of a child [*33] to abuse that would be used to attack the victim/witness's credibility. Foret, 628 So. 2d at 1131. The trial court in its discretion can determine, on a case by case basis, if a particularized hearing is necessary (Daubert hearing) to test the reliability of expert testimony on PTSD when it is being offered for the limited purposes discussed above.

... Society must tread a measured path that avoids ignoring the reality of child sexual abuse and avoids as well the possibility of unjust conviction of this most shameful of crimes. ... In many child sexual abuse prosecutions, prosecutors offer expert PTSD_based testimony that the child complainant's behavior is consistent with being sexually abused. ... In a special concurrence, Judge Zehmer of the Ward court expressed concern that expert testimony comparing the child's behavior to that of sexually abused children might be given undue weight in determining the defendant's guilt: ... Although the court conceded that "expert testimony explaining "seemingly bizarre' behavior of child sexual abuse victims is helpful to the jury and should be admitted," it concluded that "opinions of experts regarding a victim's credibility are no more reliable than the determination of the victim's credibility by the triers of fact." ... The New Jersey Superior Court explained three ways in which the proponent of expert testimony in a new field can establish its reliability: (1) by expert testimony as to the general acceptance among those in the profession of the premises on which the proffered expert witness based his or her analysis; "(2) by authoritative scientific and legal writings indicating that the scientific community accepts the premises underlying the proffered testimony; or (3) by judicial opinions that indicate that the expert's premises have gained general acceptance." ...

In the early 1980s, courts almost automatically admitted expert testimony in child sexual abuse prosecutions, perhaps because of increased public attention to the problem of child sexual abuse and the [*2029] perceived need to "do something" about this heinous crime. By the mid_1980s, the once undiscussed subject of child sexual abuse had become "something of a national obsession." 3 But the battle to win public recognition of and an appropriate response to the problem of child sexual abuse was followed by an equally fierce backlash. Notorious cases, such as the false allegations of mass molestation in Jordan, Minnesota, the acquittals in the McMartin Preschool prosecutions in California, and the convictions of day care center operators of the Country Walk Day Care Center in Miami, have served to polarize the camps. 4 Many have claimed that an atmosphere of hysteria has led to an epidemic of "sex accuse," and that what we see now is a "blizzard of false accusations." 5 A California appellate court has expressed the conflict as follows:

Thus there is very substantial conflict between two important goals of society. On the one hand is the need to care and treat an abused child and the need as a treatment device to accept as true his report whether truthful or not; and on the other hand the preservation of the constitutional right to presumption of innocence in a criminal case. 6

Furthermore, although the Federal Rules of Evidence and state evidence codes patterned after them are liberal in the requirements for admissibility of expert testimony, courts, legal commentators, and mental health professionals have increasingly expressed doubt that ex [*2030] pert psychological testimony regarding child sexual abuse meets even a minimum threshold of reliability. The term "reliability," as used throughout this Article and by courts, legal commentators, and mental health professionals, actually encompasses several principles. In a scientific sense, it refers to consistency; that is, with respect to explanative theories of child sexual abuse, whether the theory results in sufficiently similar observations of victims over time as perceived by different clinicians. It is coupled with the scientific concept of validity; that is, whether the explanative theory measures what it purports to measure. 7 Reliability also is used in the evidentiary sense that the testimony is trustworthy; that is, the explanative theory is valid and consistent and the inferences drawn from the results of the theory are in fact accurate, correct, and truthful. 8 "Explanative theory," as used in this Article, describes the process of an expert in forming an opinion from adequate underlying facts, data, or opinions. 9

Perhaps in response to these problems, since the late 1980s, many courts have attempted to restrict the admissibility of expert psychological testimony in child sexual abuse prosecutions. Courts very rarely will permit introduction of expert psychological testimony that directly assesses the credibility of the child and concludes with the expert's opinion that the child's allegations are truthful. Only a few courts will permit an expert to opine that the child's behaviors indicate that she is a victim of sexual abuse, which is, in fact, functionally equivalent to testimony on credibility. Some courts, however, allow testimony that a child's behaviors are consistent with those of known sexual abuse victims. Most courts allow an expert to rehabilitate the child's credibility by explaining that seemingly self_impeaching behaviors, such as delayed reporting of the incidents of abuse, do not necessarily indicate that the child's allegations are false.

Even when restricting the use of expert testimony, though, most courts have summarily brushed it aside by resorting to traditional rubrics such as that it impermissibly invades the province of the jury to determine credibility, that it explains principles that are within the [*2031] common knowledge of the jury and thus does not assist the trier of fact, or that its probative value is substantially outweighed by its unfair prejudicial impact. Only a few courts have tackled the basic and more difficult question of reliability head_on. For example, what underlying explanative theory is the expert using to support his or her testimony? Was that explanative theory designed to determine whether abuse has occurred? Is there sufficient consensus among the mental health community that the explanative theory can reliably determine abuse? Does professional research support the expert's conclusion? Most importantly, what kinds of guidelines, criteria, or thresholds should trial judges follow in determining whether expert psychological testimony is sufficiently reliable to be admitted?

The United States Supreme Court's recent decision in Daubert v. Merrell Dow Pharmaceuticals, Inc. 10 speaks generally to the question of sufficient reliability. Although the Court struck down the rigid "general acceptance" requirement for the admissibility of "scientific" evidence under Rule 702 of the Federal Rules of Evidence and emphasized the liberal nature of the Federal Rules of Evidence, 11 it also reminded trial judges of their obligations as gatekeepers to screen scientific evidence to ensure reliability. 12 The Court's articulation of considerations or questions for the trial judge faced with a proffer of expert "scientific" testimony 13 does not, by its terms, apply to expert psychological testimony of the type offered in child sexual abuse prosecutions. Daubert did not address reliability determinations in the context of "technical, or other specialized knowledge" 14 under Rule 702, the latter category being applicable to expert psychological testimony. The Court's apparent recognition of the need for some type of guidelines, criteria, or thresholds, however, may encourage courts hearing child sexual abuse cases to undertake more detailed and reasoned analyses of expert psychological testimony admissibility questions.

This Article urges that courts take a more active role in ensuring the reliability of expert psychological testimony admitted in child sexual abuse prosecutions. It describes three major problems that courts must recognize and squarely address. First, courts often allow the expert to employ an explanative theory as a basis for rendering an expert psychological opinion without recognizing that a particular explanative theory may be reliable only for a limited purpose or not at [*2032] all. Part I posits four classifications of expert psychological testimony offered in child sexual abuse prosecutions and describes the conceptual models on which each classification of testimony is based: the child sexual abuse accommodation syndrome, the psychiatric diagnosis of post_traumatic stress disorder, techniques of statement validation, and the child sexual abuse syndrome. It describes the general pattern of admissibility of testimony based on each theory and discusses the limitations of each theory that may counsel against considering such a theory sufficiently reliable to form the basis for the expert's psychological testimony.

The second major problem is that the Federal Rules of Evidence and state codifications modeled on them have eroded the requirements imposed by common law for the admissibility of expert testimony in all types of cases. The erosion of these requirements has exacerbated the difficulties counsel face in persuading a jury that opinions rendered by an expert witness called by opposing counsel lack adequate assurance of reliability. Part II describes the common law "screening devices" and the impact of the Federal Rules of Evidence on the ability of courts to sift through evidence and exclude unreliable information. This Part also explores the Frye test 15 and other alternatives employed to "screen" novel scientific evidence to ensure sufficient reliability, and assesses the potential impact of Daubert.

The third major problem is specific to expert psychological testimony in child sexual abuse prosecutions. Part III describes problems with research conducted in this field and, accordingly, the adequacy of the bases employed by experts in the field. This Part also highlights the need for research on the public's knowledge about the dynamics of child sexual abuse in order to determine whether expert testimony actually assists the jury, and for research on whether expert testimony unduly influences the jury's decision_making process in a child sexual abuse prosecution. This research would help courts better to determine the purposes for which expert testimony on child sexual abuse is appropriate.

This Article concludes that expert psychological testimony can play an important and legitimate role in many child sexual abuse prosecutions. It cautions, however, that the abhorrence of the crime does not justify brushing aside reliability considerations. Rather, the stakes, for the child, the defendant, and the integrity of the criminal judicial system, counsel for a heightened scrutiny of this testimony. [*2033]

Faced with these unique problems, prosecutors increasingly have relied on mental health professionals to bolster child sexual abuse cases with expert psychological testimony. 33 The types of testimony offered generally fall into four categories. 34 The categories described [*2035] here were chosen for their broad relevance, and are listed in order of increasing probative value (assuming reliability) on the ultimate issue in the case _ whether the defendant committed the alleged incidents of sexual abuse against the child complainant. First, the expert may explain behaviors of the child that are seemingly inconsistent with abuse, such as delayed, inconsistent, or unconvincing reporting of the incidents of abuse, or recantation of the allegations. This type of testimony is intended to rebut the implication that these behaviors indicate that the child's allegations are false. Second, the expert may explain that certain behavioral characteristics, such as nightmares, sleep or concentration difficulties, or withdrawal from social relationships and activities, commonly are observed in sexually abused children. The expert then opines that the child complainant's behavior is consistent with being abused. The third and fourth categories are closely related. With the third type, the expert directly opines, based on an evaluation of the child's credibility and behavior, that the child has been abused. With the fourth type, the expert employs the same bases actually to assert that the child's allegations of abuse are truthful.

The expert may find support for his or her testimony in the child sexual abuse accommodation syndrome ("CSAAS"), the psychiatric diagnosis of post_traumatic stress disorder ("PTSD"), statement validation techniques, or any combination thereof, which will be referred to as the child sexual abuse syndrome/"whole package" approach ("CSAS"). Generally, CSAAS is associated with the first type of testimony, PTSD with the second and third, statement validation with the third and fourth, and CSAS with the second, third, and fourth. The expert may refer to CSAAS, PTSD, or CSAS explicitly, or may use a looser description of characteristics based implicitly on one of them. 35 The expert may specifically relate his or her testimony to the child complainant or may testify about child sexual abuse victims as a general class.

There appears to be acceptance within the scientific community that CSAAS identifies and describes behavioral characteristics commonly found in victims of child sexual abuse. The problem is that prosecutors often offer expert psychological testimony employing CSAAS as a basis for concluding that the alleged child sexual abuse occurred. This use of CSAAS is improper. Dr. Summit's purpose in describing CSAAS was to encourage better therapeutic treatment of child sexual abuse victims. The behavioral characteristics he described assume abuse rather than provide evidence of it. 55 Dr. Summit himself described the misuse of CSAAS as follows:

The Child Sexual Abuse Accommodation Syndrome ... is a clinical observation that has become both elevated as gospel and denounced as dangerous pseudoscience. The polarization which inflames every issue of sexual abuse has been kindled further here [*2040] by the exploitation of a clinical concept as ammunition for battles in court. The excess heat has been generated by false claims advanced by prosecutors as well as by a primary effort by defense interests to strip the paper of any worth or relevance. 56

CSAAS cannot possibly be used to diagnose abuse. Typical scientific experiments involve the manipulation of independent variables and control over other conditions which may influence the dependent variable. Sexual abuse, however, is not something that scientists can recreate or control for scientific experiment. Thus, it is possible that some unobserved variable related to the elements of CSAAS is the cause of the behavior in question. For example, it is difficult to determine whether delayed disclosure is a direct result of the abusive situation, a completely different stressful event, or the child's age and natural development.

In People v. Bowker, 65 a California appellate court, in permitting testimony based on CSAAS for the sole purpose of disabusing the jury of misconceptions as to how child victims react to abuse, adopted two additional requirements for the admissibility of expert testimony in child sexual abuse prosecutions that have since guided the opinions of the other courts in the state: (1) the expert's testimony must be "tailored to the purpose for which it is being received"; i.e., the prosecution must "identify the myth or misconception the evidence is designed to rebut"; 66 and (2) "the jury must be instructed ... that the expert's testimony is not intended and should not be used to determine whether the victim's molestation claim is true." 67

Like the California courts, the Supreme Court of Michigan, in People v. Beckley, 68 allowed testimony concerning only those specific behaviors at issue in the case and required that the expert limit his or her testimony to these behaviors. 69 Unlike the California courts, the [*2043] Beckley court did not require a limiting instruction. Rather, the court noted that generally, effective cross_examination will prevent the jury from concluding that an expert opinion regarding the child's behaviors indicates that the abuse in fact occurred. Thus, a limiting instruction should be given on request. 70

The testimony of the prosecution's expert witness in Townsend v. State 92 is an example of testimony based on a specific comparison of the child's behavior to PTSD criteria:

Q. As a result of working with Sheila, what was your diagnosis of her?

A. Post_traumatic stress disorder as a result of sexual abuse. [*2047]

Q. Now, I am sure this jury is like I am, do not understand the post_traumatic stress disorder sic.

A. Very simply stated, it is a disorder which is a function of being exposed to a traumatic or series of traumatic incidents.

Q. What are the characterizations of that disorder that you observed in Sheila?

A. Okay. In Sheila the observation of the anxiety, the fearfulness that was going to be the outcome. She's talked about the fearfulness of other kids hearing about what happened and how they are going to react to her. There are episodes when things _ one of the things you see in post_trauma, there could be brushes with violence which are precipitated with minimal precipitation. There were also indications of that.

Q. Is this post_trauma stress disorder something that you have observed in other children in the hundred and twenty some cases that you worked on other children that have been sexually assaulted as Sheila had?

A. Yes, that is. 93

Commentators in the mental health field have criticized the use of PTSD to diagnose child sexual abuse because the criteria do not quite capture the extent of psychological damage to a sexually abused child. 94 David Finkelhor, codirector of the Family Research Laboratory at the University of New Hampshire, has led the critique of PTSD's application in the child sexual abuse context. 95 He notes four main problems. First, sexually abused children suffer not only from PTSD_type symptoms, but also from other symptoms that are not included within PTSD. 96 Finkelhor continues:

Second, the PTSD conceptualization has a misplaced emphasis. PTSD focuses its attention on the affective (emotional) realm, whereas much of the trauma of child sexual abuse is in the cognitive realm as well. PTSD ignores the distortion in the child's beliefs about sex, family, and self_esteem that abuse may cause. Third, there are many victims of sexual abuse who do not have PTSD_type symptoms but who do have other problems. Fourth, the theory behind PTSD does not readily adapt to the experience of sexual abuse.... The classic PTSD theory says the symptoms result from "an overwhelming event resulting in helplessness in the [*2048] face of intolerable danger, anxiety and instinctual arousal ...." However, much sexual abuse does not occur under conditions of danger, threat, and violence. 97

Moreover, "sexual abuse is less of an "event' than a situation, relationship, or process." Finkelhor concludes that, "although PTSD has added some insight to the understanding of the trauma of some sexual abuse victims, it is not in itself an adequate conceptualization." 98

Other commentators have attacked PTSD on the basis that the criteria used by mental health professionals to make a PTSD diagnosis often are seen in "normal" individuals, and thus do not necessarily suggest abnormality. 99 In addition, in many cases there may be alternate explanations for the symptoms used to form a basis for the diagnosis, including trauma other than sexual abuse. 100 Finally, there is the problem of assessing the child's prior mental state. To establish the causal connection between the child's behaviors and the diagnosis, the clinician would have to know the child's condition prior to the alleged abuse and the child's current condition. These conditions cannot be determined with a high degree of accuracy because the clinician is almost totally dependent on the descriptions given by the child, family members, or friends.

In the present case, the trial court initially denied the motion in limine, finding that the state had not met its burden for admissibility under the criteria set forth in State v. Charles, 617 So. 2d 895 (La. 1993). Specifically, the trial court found that the state had failed to produce the information specified as subsections (c) and (d) by the court in State v. Charles, supra. n1

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _Footnotes_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

n1 In Charles, the supreme court ordered the state to designate which of three DNA test reports would be introduced at trial and further stated:

(2) Should the state designate either of the first two DNA test reports and results received by the defense, . . . the state is hereby ordered to provide to the defense the following documents and evidence required by the defendant's expert:

* * *

(c) How the tables used by the laboratory were obtained in order to reach its conclusion that the genotypes in each system are in Hardy_Weinberg equilibrium proportions and all four systems are independently distributed in the population;

(d) How many individuals were used to calculate the frequencies in each column of the tables and how those individuals can be characterized demographically;

* * *

In the present case, the state's witness, Mary Deanna Jones, an analyst at the [*17] Northwest Louisiana Crime Lab, was accepted as an expert in forensic DNA analysis. During the motion hearings, Jones testified that the crime lab used the Multiplex Polymerase Chain Reaction ("PCR") method of obtaining a DNA sample from specific locations on the chromosomes. The written protocol used by the lab was provided in the Profiler Plus and CO_filer PCR amplification kits.

Jones stated that the PCR methodology is a standard procedure which has been subject to peer review and is used throughout the country. Jones testified that the lab used the Hardy Weinberg Equilibrium Equation with the population frequency database provided by Roche Molecular Systems to calculate the genetic distribution statistics. Jones stated that this procedure is also used nationwide.

The trial court performed its gatekeeping function by carefully scrutinizing the reliability of the scientific evidence offered. The state presented uncontroverted expert testimony that the PCR_derived DNA analysis used by the crime lab has been subjected to peer review and publication, is widely accepted in the scientific community, represents the forensics industry standard and that the probability of error is considered [*18] low because the lab used experimental controls to verify the accuracy of the test results. Thus, the record supports a finding that the DNA evidence was reliable and relevant. Consequently, we cannot say the trial court abused its discretion in admitting the results of the DNA analysis in this case. The assignment of error lacks merit.

[DNA test confirmed defendant’s DNA in bag of cocaine and was sufficient evidence for possession But what’s missing? How did the DNA get there? Is the only way for DNA to arrive necessarily by possession of the item upon which it is found? How about having a sandwich at lunch, reaching into the baggie, taking out the sandwich, throwing the baggie away? Does the expert testimony lead to the presumed inference as ‘scientific fact’?]

DAUBERT vs DOW                                                                                                                                                      EXPERT WITNESSES: GATEKEEPING IN THE DISTRICT COURT
INTRODUCTION
Experts have been the focus of public outrage and litigation strategy for many years. In recent legal history, the ability of an expert to sway a jury has meant millions of dollars for accident victims and lawyers. Development of toxic tort theory has increased the pressure to develop and present scientific evidence.
In the criminal arena, DNA matching has increased the importance of scientific understanding. Evidence regarding scientific methods and conclusions has changed the courtroom. Expert testimony has literally taken over paternity litigation, and seems destined to have increasing roles in numerous criminal prosecutions.

With the adoption of Rules of Evidence, certain courtroom practices were codified. Federal Courts were first, and Louisiana adopted its own Rules, which essentially copied the Federal form. Among the rules was Rule 702, which dealt with expert testimony. Rule 702 seemed routine until the U.S. Supreme Court considered the case of Daubert vs Dow. That decision annoited the District Judge as a "gatekeeper" for expert evidence. The Trial Court was charged with the obligation of applying a broad permit of admissibility, but that was to be tempered with the injunction to ascertain that the evidence was essentially "good science". Louisiana adopted the test in Foret.

Initially, the view was that Daubert would amount to a wide open courtroom for experts. Stirring some excitement, at least one Federal Court held that polygraphs would be tested according to Daubert. But the evolution of the matter has been different. In the most recent decision, Joiner, the Supreme Court approves an activist kind of testing, once which allows the District Court to exclude evidence it finds is unreliable. There must be more than an opinion. It has to have some scientific backing.

Presently, one might see Daubert as more restrictive that the Frye standard, which simply required "generally accepted" scientific theory. Daubert allows the District Court to test the method and reliability in a way that the Frye standard did not allow. But the decision is in the Court, not the scientific community.

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In addition to our compiled law on DAUBERT,  here's the latest,  IT IS ONLY A DIGEST FROM CORNELL,  NOT THE ACTUAL CASE, BUT THE LINK BELOW WILL TAKE YOU TO THE FULL TEXT VERSION:

KUMHO TIRE CO. v. CARMICHAEL (97-1709)
Web-accessible at:
http://supct.law.cornell.edu/supct/html/97-1709.ZS.html

Argued December 7, 1998 -- Decided March 23, 1999
Opinion author: Breyer
===============================================================
When a tire on the vehicle driven by Patrick Carmichael blew out and the vehicle overturned, one passenger died and the  others were injured. The survivors and the decedent's representative, respondents here, brought this diversity suit  against the tire's maker and its distributor (collectively Kumho Tire), claiming that the tire that failed was defective. 
        They rested their case in significant part upon the depositions of a tire failure analyst, Dennis Carlson, Jr., who intended to   testify that, in his expert opinion, a defect in the tire's  manufacture or design caused the blow out. That opinion was  based upon a visual and tactile inspection of the tire and upon  the theory that in the absence of at least two of four  specific, physical symptoms indicating tire abuse, the tire  failure of the sort that occurred here was caused by a defect. 
        Kumho Tire moved to exclude Carlson's testimony on the ground  that his methodology failed to satisfy Federal Rule of Evidence 702, which says: "If scientific, technical, or other  specialized knowledge will assist the trier of fact ... , a   witness qualified as an expert ... may testify thereto in the  form of an opinion." Granting the motion (and entering summary  judgment for the defendants), the District Court acknowledged
that it should act as a reliability "gatekeeper" under Daubert  v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589, in  which this Court held that Rule 702 imposes a special  obligation upon a trial judge to ensure that scientific testimony is not only relevant, but reliable.                                                                                                        

The court noted  that Daubert discussed four factors--testing, peer review,  error rates, and "acceptability" in the relevant scientific community--which might prove helpful in determining the  reliability of a particular scientific theory or technique,id., at 593-594, and found that those factors argued against   the reliability of Carlson's methodology. On the plaintiffs'   motion for reconsideration, the court agreed that Daubert
should be applied flexibly, that its four factors were simply  illustrative, and that other factors could argue in favor of  admissibility. However, the court affirmed its earlier order  because it found insufficient indications of the reliability of   Carlson's methodology. In reversing, the Eleventh Circuit held  that the District Court had erred as a matter of law in  applying Daubert. Believing that Daubert was limited to the  scientific context, the court held that the Daubert factors did  not apply to Carlson's testimony, which it characterized as  skill- or  experience-based.

Held:
1. The Daubert factors may apply to the testimony of  engineers and other experts who are not scientists. Pp. 7-13.
(a) The Daubert "gatekeeping" obligation applies not  only to "scientific" testimony, but to all expert testimony.
Rule 702 does not distinguish between "scientific" knowledge  and "technical" or "other specialized" knowledge, but makes clear that any such knowledge might become the subject of  expert testimony. It is the Rule's word "knowledge," not the  words (like "scientific") that modify that word, that  establishes a standard of evidentiary reliability. 509 U.S.,  at 589-590. Daubert referred only to "scientific" knowledge  because that was the nature of the expertise there at issue.  Id., at 590, n. 8. Neither is the evidentiary rationale  underlying Daubert's "gatekeeping" determination limited to  "scientific" knowledge. Rules 702 and 703 grant all expert
witnesses, not just "scientific" ones, testimonial latitude unavailable to other witnesses on the assumption that the  expert's opinion will have a reliable basis in the knowledge  and experience of his discipline. Id., at 592. Finally, it  would prove difficult, if not impossible, for judges to  administer evidentiary rules under which a "gatekeeping"  obligation depended upon a distinction between "scientific"  knowledge and "technical" or "other specialized" knowledge,  since there is no clear line dividing the one from the others
and no convincing need to make such distinctions. Pp. 7-9.                                                                                                 
(b) A trial judge determining the admissibility of  an engineering expert's testimony may consider one or more of
the specific Daubert factors. The emphasis on the word "may"  reflects Daubert's description of the Rule 702 inquiry as "a   flexible one." 509 U.S., at 594. The Daubert factors do not  constitute a definitive checklist or test, id., at 593, and the  gatekeeping inquiry must be tied to the particular facts, id.,  at 591. Those factors may or may not be pertinent in assessing   reliability, depending on the nature of the issue, the expert's  particular expertise, and the subject of his testimony. Some  of those factors may be helpful in evaluating the reliability
even of experience-based expert testimony, and the Court of  Appeals erred insofar as it ruled those factors out in such  cases. In determining whether particular expert testimony is  reliable, the trial court should consider the specific Daubert   factors where they are reasonable measures of reliability. Pp.  10-12.                                                
(c) The court of appeals must apply an  abuse-of-discretion standard when it reviews the trial court's decision to admit or exclude expert testimony. General  Electric Co. v. Joiner, 522 U.S. 136, 138-139. That standard
applies as much to the trial court's decisions about how to  determine reliability as to its ultimate conclusion. Thus,  whether Daubert's specific factors are, or are not, reasonable  measures of reliability in a particular case is a matter that   the law grants the trial judge broad latitude to determine.  See id., at 143. The Eleventh Circuit erred insofar as it held  to the contrary. P. 13.                                                                                                                         
2. Application of the foregoing standards demonstrates  that the District Court's decision not to admit Carlson's
expert testimony was lawful. The District Court did not  question Carlson's qualifications, but excluded his testimony because it initially doubted his methodology and then found it   unreliable after examining the transcript in some detail and    considering respondents' defense of it. The doubts that
triggered the court's initial inquiry were reasonable, as was the court's ultimate conclusion that Carlson could not reliablydetermine the cause of the failure of the tire in question.
        The question was not the reliability of Carlson's methodology in general, but rather whether he could reliably determine the   cause of failure of the particular tire at issue. That tire, Carlson conceded, had traveled far enough so that some of the  tread had been worn bald, it should have been taken out of   service, it had been repaired (inadequately) for punctures, and   it bore some of the very marks that he said indicated, not a
defect, but abuse. Moreover, Carlson's own testimony cast considerable doubt upon the reliability of both his theory  about the need for at least two signs of abuse and his  proposition about the significance of visual inspection in this case. Respondents stress that other tire failure experts, like  Carlson, rely on visual and tactile examinations of tires. But  there is no indication in the record that other experts in the  industry use Carlson's particular approach or that tire experts   normally make the very fine distinctions necessary to support  his conclusions, nor are there references to articles or papers  that validate his approach. Respondents' argument that the  District Court too rigidly applied Daubert might have had some  validity with respect to the court's initial opinion, but fails   because the court, on reconsideration, recognized that the  relevant reliability inquiry should be "flexible," and  ultimately based its decision upon Carlson's failure to satisfy  either Daubert's factors or any other set of reasonable  reliability criteria. Pp. 13-19.

131 F.3d 1433, reversed.

Breyer, J., delivered the opinion of the Court, in which
Rehnquist, C. J., and O'Connor, Scalia, Kennedy, Souter,
Thomas, and Ginsburg, JJ., joined, and in which Stevens, J.,
joined as to Parts I and II. Scalia, J., filed a concurring
opinion, in which O'Connor and Thomas, JJ., joined. Stevens,
J., filed an opinion concurring in part and dissenting in part.

113 S.Ct. 2786, 509 U.S. 579, Daubert v. Merrell Dow Pharmaceuticals, Inc., (U.S.Cal. 1993)

the claim was that an antinausea drug caused birth defects

Infants and their guardians ad litem sued pharmaceutical company to recover for limb reduction birth defects allegedly sustained as result of mothers' ingestion of antinausea drug Bendectin. The United States District Court for the Southern District of California, > 727 F.Supp. 570, granted company's motion for summary judgment, and plaintiffs appealed. The Court of Appeals, > 951 F.2d 1128, affirmed. Plaintiffs filed petition for writ of certiorari, which was granted. The Supreme Court, Justice Blackmun, held that: (1) "general acceptance" is not necessary precondition to admissibility of scientific evidence under Federal Rules of Evidence, and (2) Rules assign to trial judge the task of ensuring that expert's testimony both rests on reliable foundation and is relevant to task at hand.

Vacated and remanded. 113 S.Ct. 2786, 509 U.S. 579, Daubert v. Merrell Dow Pharmaceuticals, Inc., (U.S.Cal. 1993)
The District Court granted respondent's motion for summary judgment. The court stated that scientific evidence is admissible only if the principle upon which it is based is " 'sufficiently established to have general acceptance in the field to which it belongs.' " > 727 F.Supp. 570, 572 (S.D.Cal.1989), quoting > United States v. Kilgus, 571 F.2d 508, 510 (CA9 1978). The court concluded that petitioners' evidence did not meet this standard. Given the vast body of epidemiological data concerning Bendectin, the court held, expert opinion which is not based on epidemiological evidence [509 U.S. 584] is not admissible to establish causation. > 727 F.Supp., at 575.

------------ Excerpt from page 113 S.Ct. 2792
The United States Court of Appeals for the Ninth Circuit affirmed. > 951 F.2d 1128 (1991). Citing > Frye v. United States, 54 App.D.C. 46, 47, 293 F. 1013, 1014 (1923), the court stated that expert opinion based on a scientific technique is inadmissible unless the technique is "generally accepted" as reliable in the relevant scientific community. > 951 F.2d, at 1129-1130. The court declared that expert opinion based on a methodology that diverges "significantly from the procedures accepted by recognized authorities in the field ... cannot be shown to be 'generally accepted as a reliable technique.' " > Id., at 1130, quoting > United States v. Solomon, 753 F.2d 1522, 1526 (CA9 1985).

------------ Excerpt from page 113 S.Ct. 2792
The > Frye test has its origin in a short and citation-free 1923 decision concerning the admissibility of evidence derived from a systolic blood pressure deception test, a crude precursor to the polygraph machine. In what has become a famous (perhaps infamous) passage, the then Court of Appeals for the District of Columbia described the device and its operation and declared:

"Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages [509 U.S. 586] is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs." > 54 App.D.C., at 47, 293 F., at 1014 (emphasis added).

Because the deception test had "not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made," evidence of its results was ruled inadmissible. > Ibid.

------------ Excerpt from page 113 S.Ct. 2793

Petitioners' primary attack, however, is not on the content but on the continuing authority of the rule. They contend that the > Frye test was superseded by the adoption of the Federal Rules of Evidence. > (FN5) We agree.

Federal rules seem to open up to ALL RELEVANT evidence...

We interpret the legislatively enacted Federal Rules of Evidence as we would any statute. > Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 163, 109 S.Ct. 439, 446, 102 L.Ed.2d 445 (1988). > Rule 402 provides the baseline:

"All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible."

"Relevant evidence" is defined as that which has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." > Rule 401. The Rule's basic standard of relevance thus is a liberal one.

Frye, of course, predated the Rules by half a century. In > United States v. Abel, 469 U.S. 45, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984), we considered the pertinence of background common law in interpreting the Rules of Evidence. We noted that the Rules occupy the field, > id., at 49, 105 S.Ct., at 467, but, quoting Professor Cleary, the Reporter, [509 U.S. 588] explained that the common law nevertheless could serve as an aid to their application:

" 'In principle, under the Federal Rules no common law of evidence remains. "All relevant evidence is admissible, except as otherwise provided...." In reality, of course, the body of common law knowledge continues to exist, though in the somewhat altered form of a source of guidance in the exercise of delegated powers.' " > Id., at 51-52, 105 S.Ct., at 469.

------------ Excerpt from pages 113 S.Ct. 2793-113 S.Ct. 2794

Here there is a specific Rule that speaks to the contested issue. > Rule 702, governing expert testimony, provides:

"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise."

Nothing in the text of this Rule establishes "general acceptance" as an absolute prerequisite to admissibility. Nor does respondent present any clear indication that > Rule 702 or the Rules as a whole were intended to incorporate a "general acceptance" standard. The drafting history makes no mention of Frye, and a rigid "general acceptance" requirement would be at odds with the "liberal thrust" of the Federal Rules and their "general approach of relaxing the traditional barriers to 'opinion' testimony." > Beech Aircraft Corp. v. Rainey, 488 U.S., at 169, 109 S.Ct., at 450 (citing Rules 701 to 705). See also Weinstein, > Rule 702 of the Federal Rules of Evidence is [509 U.S. 589] Sound; It Should Not Be Amended, 138 F.R.D. 631 (1991) ("The Rules were designed to depend primarily upon lawyer-adversaries and sensible triers of fact to evaluate conflicts"). Given the Rules' permissive backdrop and their inclusion of a specific rule on expert testimony that does not mention " 'general acceptance,' " the assertion that the Rules somehow assimilated Frye is unconvincing. Frye made "general acceptance" the exclusive test for admitting expert scientific testimony. That austere standard, absent from, and incompatible with, the Federal Rules of Evidence, should not be applied in federal trials. > (FN6)

------------ Excerpt from page 113 S.Ct. 2794

the expert: a witness allowed to say things that no-one else can

. . . . Unlike an ordinary witness, see > Rule 701, an expert is permitted wide latitude to offer opinions, including those that are not based on firsthand knowledge or observation. See > Rules 702 and > 703. Presumably, this relaxation of the usual requirement of firsthand knowledge--a rule which represents "a 'most pervasive manifestation' of the common law insistence upon 'the most reliable sources of information,' " Advisory Committee's Notes on > Fed.Rule Evid. 602, 28 U.S.C.App., p. 755 (citation omitted)--is premised on an assumption that the expert's opinion will have a reliable basis in the knowledge and experience of his discipline.

------------ Excerpt from page 113 S.Ct. 2796
LAPDA HOME    INTRODUCTION    CONTENTS

OFFER OF EXPERT REQUIRES PRELIMINARY DETERMINATION BY COURT:

Faced with a proffer of expert scientific testimony, then, the trial judge must determine at the outset, pursuant to > Rule 104(a), > (FN10) whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. > (FN11) This entails a preliminary assessment of whether the reasoning or methodology[509 U.S. 593] underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue. We are confident that federal judges possess the capacity to undertake this review. Many factors will bear on the inquiry, and we do not presume to set out a definitive checklist or test. But some general observations are appropriate.

Ordinarily, a key question to be answered in determining whether a theory or technique is scientific knowledge that will assist the trier of fact will be whether it can be (and has been) tested. "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." Green 645. See also C. Hempel, Philosophy of Natural Science 49 (1966)

("[T]he statements constituting a scientific explanation must be capable of empirical test"); K. Popper, Conjectures and Refutations: The Growth of Scientific Knowledge 37 (5th ed. 1989) ("[T]he criterion of the scientific status of a theory is its falsifiability, or refutability, or testability") (emphasis deleted).

Another pertinent consideration is whether the theory or technique has been subjected to peer review and publication. Publication (which is but one element of peer review) is not a sine qua non of admissibility; it does not necessarily correlate with reliability, see S. Jasanoff, The Fifth Branch: Science Advisors as Policymakers 61-76 (1990), and in some instances well-grounded but innovative theories will not have been published, see Horrobin, The Philosophical Basis of Peer Review and the Suppression of Innovation, 263 JAMA 1438 (1990). Some propositions, moreover, are too particular, too new, or of too limited interest to be published. But submission to the scrutiny of the scientific community is a component of "good science," in part because it increases the likelihood that substantive flaws in methodology will be detected. See J. Ziman, Reliable Knowledge: An Exploration [509 U.S. 594] of the Grounds for Belief in Science 130-133 (1978); Relman & Angell, How Good Is Peer Review?, 321 New Eng.J.Med. 827 (1989). The fact of publication (or lack thereof) in a peer reviewed journal thus will be a relevant, though not dispositive, consideration in assessing the scientific validity of a particular technique or methodology on which an opinion is premised.

Additionally, in the case of a particular scientific technique, the court ordinarily should consider the known or potential rate of error, see, e.g., > United States v. Smith, 869 F.2d 348, 353-354 (CA7 1989) (surveying studies of the error rate of spectrographic voice identification technique), and the existence and maintenance of standards controlling the technique's operation, see > United States v. Williams, 583 F.2d 1194, 1198 (CA2 1978) (noting professional organization's standard governing spectrographic analysis), cert. denied, > 439 U.S. 1117, 99 S.Ct. 1025, 59 L.Ed.2d 77 (1979).

Finally, "general acceptance" can yet have a bearing on the inquiry. A "reliability assessment does not require, although it does permit, explicit identification of a relevant scientific community and an express determination of a particular degree of acceptance within that community." > United States v. Downing, 753 F.2d, at 1238. See also 3 Weinstein & Berger 702[03], pp. 702-41 to 702-42. Widespread acceptance can be an important factor in ruling particular evidence admissible, and "a known technique which has been able to attract only minimal support within the community," > Downing, 753 F.2d, at 1238, may properly be viewed with skepticism.

The inquiry envisioned by > Rule 702 is, we emphasize, a flexible one. > (FN12) Its overarching subject is the scientific validity [509 U.S. 595] and thus the evidentiary relevance and reliability--of the principles that underlie a proposed submission. The focus, of course, must be solely on principles and methodology, not on the conclusions that they generate.
Throughout, a judge assessing a proffer of expert scientific testimony under > Rule 702 should also be mindful of other applicable rules. > Rule 703 provides that expert opinions based on otherwise inadmissible hearsay are to be admitted only if the facts or data are "of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject." > Rule 706 allows the court at its discretion to procure the assistance of an expert of its own choosing. Finally, > Rule 403 permits the exclusion of relevant evidence "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury...." Judge Weinstein has explained: "Expert evidence can be both powerful and quite misleading because of the difficulty in evaluating it. Because of this risk, the judge in weighing possible prejudice against probative force under > Rule 403 of the present rules exercises more control over experts than over lay witnesses." Weinstein, > 138 F.R.D., at 632.

------------ Excerpt from pages 113 S.Ct. 2796-113 S.Ct. 2798

. . . .. Scientific conclusions are subject to perpetual revision. Law, on the other hand, must resolve disputes finally and quickly. The scientific project is advanced by broad and wide-ranging consideration of a multitude of hypotheses, for those that are incorrect will eventually be shown to be so, and that in itself is an advance. Conjectures that are probably wrong are of little use, however, in the project of reaching a quick, final, and binding legal judgment--often of great consequence--about a particular set of events in the past. We recognize that, in practice, a gatekeeping role for the judge, no matter how flexible, inevitably on occasion will prevent the jury from learning of authentic insights and innovations. That, nevertheless, is the balance that is struck by Rules of Evidence designed not for the exhaustive search for cosmic understanding but for the particularized resolution of legal disputes. > (FN13)

IV

To summarize: "General acceptance" is not a necessary precondition to the admissibility of scientific evidence under the Federal Rules of Evidence, but the Rules of Evidence--especially > Rule 702--do assign to the trial judge the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand. Pertinent evidence based on scientifically valid principles will satisfy those demands.

113 S.Ct. 2786, 509 U.S. 579, Daubert v. Merrell Dow Pharmaceuticals, Inc., (U.S.Cal. 1993)

------------ Excerpt from pages 113 S.Ct. 2798-113 S.Ct. 2799

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SECOND STEP: THE JOINER CASE

( keep the gate closed-Daubert had let in the information for Plaintiff. Here, the Court of Appeal reversed the Trial Court's determination to exclude. The Supreme Court holds the standard of review is "abuse of discretion", but the tide has turned against the "liberal" 702) 118 S.Ct. 512, General Elec. Co. v. Joiner, (U.S.Ga. 1997)

City's electrician, who suffered from lung cancer, brought state court action against manufacturer of polychlorinated biphenyls (PCBs) and manufacturers of electrical transformers and dielectric fluid, alleging strict liability, negligence, fraud, and battery. Manufacturers removed action to federal court. The United States District Court for the Northern District of Georgia, > 864 F.Supp. 1310, Orinda D. Evans, J., excluded testimony of electrician's experts and granted defendants' motion for summary judgment. Electrician appealed. The Eleventh Circuit Court of Appeals, Barkett, Circuit Judge, > 78 F.3d 524, reversed. Certiorari was granted. The Supreme Court, Chief Justice Rehnquist, held that: (1) "abuse of discretion" standard applied to District Court's decision to exclude scientific evidence; (2) District Court did not abuse its discretion in excluding expert testimony based on studies indicating that infant mice developed cancer after receiving massive doses of PCBs; and (3) District Court did not abuse its discretion in excluding expert testimony based on epidemiological studies.

Reversed and remanded.

standard of review is abuse of discretion....

that abuse of discretion is the proper standard of review of a district court's evidentiary rulings. > Old Chief v. United States, 519 U.S. 172, ---- n. 1, 117 S.Ct. 644, 647 n. 1, 136 L.Ed.2d 574 (1997), > United States v. Abel, 469 U.S. 45, 54, 105 S.Ct. 465, 470, 83 L.Ed.2d 450 (1984)

118 S.Ct. 512, General Elec. Co. v. Joiner, (U.S.Ga. 1997) ------------ Excerpt from page 118 S.Ct. 517

Petitioners contended that the statements of Joiner's experts regarding causation were nothing more than speculation. Petitioners criticized the testimony of the experts in that it was "not supported by epidemiological studies ... [and was] based exclusively on isolated studies of laboratory animals." Joiner responded by claiming that his experts had identified "relevant animal studies which support their opinions." He also directed the court's attention to four epidemiological studies > (FN2) on which his experts had relied.
The District Court agreed with petitioners that the animal studies on which respondent's experts relied did not support his contention that exposure to PCBs had contributed to his cancer. The studies involved infant mice that had developed cancer after being exposed to PCBs. The infant mice in the studies had had massive doses of PCBs injected directly into their peritoneums > (FN3) or stomachs. Joiner was an adult human being whose alleged exposure to PCBs was far less than the exposure in the animal studies. The PCBs were injected into the mice in a highly concentrated form. The fluid with which Joiner had come into contact generally had a much smaller PCB concentration of between 0-500 parts per million. The cancer that these mice developed was alveologenic adenomas; Joiner had developed small-cell carcinomas. No study demonstrated that adult mice developed cancer after being exposed to PCBs. One of the experts admitted that no study had demonstrated that PCBs lead to cancer in any other species.

------------ Excerpt from page 118 S.Ct. 518

(controversy over rat studies in the 80's and early 90's was widespread... the government had adopted some health regulations that cancer induced by massive ingestion could be the basis for finding a substance toxic...)
The District Court also concluded that the four epidemiological studies on which respondent relied were not a sufficient basis for the experts' opinions.

118 S.Ct. 512, General Elec. Co. v. Joiner, (U.S.Ga. 1997)

------------ Excerpt from page 118 S.Ct. 518

pulling back: not "ipse dixit" of the expert alone:

But nothing in either > Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence which is connected to existing data only by the ipse dixit of the expert. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered. See > Turpin v. Merrell Dow Pharmaceuticals, Inc., 959 F.2d 1349, 1360 (C.A.6), cert. denied, > 506 U.S. 826, 113 S.Ct. 84, 121 L.Ed.2d 47 (1992). That is what the District Court did here, and we hold that it did not abuse its discretion in so doing.

------------ Excerpt from page 118 S.Ct. 519


LAPDA HOME   CONTENTS     DAUBERT    JOINDER

LOUISIANA ADOPTS DAUBERT: FORET

628 So.2d 1116, State v. Foret, (La. 1993)

La.C.E. art. 702 sets up a scheme wherein the expert testifies only as to matters that are calculated to be helpful to the jury. Of course, this helpfulness to the jury is to be balanced by a due consideration of the probative value/prejudicial effect balancing test mandated by > La.C.E. art. 403. As this provision generally follows the federal rule and is similar to other state evidentiary rules on testimony as to credibility, we look once again to federal and other state jurisprudence on this matter.

THE ISSUE IN FORET was the validity of expert opinions on whether a child was abused:

One of the few sources for validation of expert determinations of the existence of child sexual abuse is found in a study conducted that examined over 100 cases of child sexual abuse where the perpetrators confessed or acknowledged the abuse. Faller, "Criteria for Judging the Credibility of Children's Statements About Their Sexual Abuse", 67 Child Welfare 389 (1988), cited in Myers, supra, at 75-76. Faller described three factors that were crucial in determinations of abuse. They were "information about the context of the sexual abuse, the description or demonstration of the sexual victimization, and the victim's emotional state." Faller, at 391. The factors relied upon by clinicians in their determinations were prevalent in 68% of the cases, leading Faller to the conclusion that "clinical criteria employed by evaluators of sexually abused children are indeed valid predictors of whether children have been sexually abused...." Id., at 396-98.

------------ Excerpt from pages 628 So.2d 1125-628 So.2d 1126
The question of whether or not such testimony on CSAAS is "helpful" to the jury in its determination of a victim's credibility has been one that, although it has generated much litigation in other jurisdictions, is res nova in this state. These other jurisdictions have repeatedly wrestled with the problem of admissibility of CSAAS-based testimony for the purpose of bolstering a victim's credibility, and they almost uniformly hold that the testimony is inadmissible:

[u]nlike some aspects of expert testimony on child sexual abuse, courts approach unanimity when it comes to expert testimony on credibility. The great majority of courts reject expert testimony which comments directly on the credibility of individual children or on the credibility of sexually abused children as a class.

Myers, at 121-122. The rationales for excluding the evidence all seem to focus on the factfinding role of juries and that part of this role involves a determination as to the credibility of each witness. Testimony by an expert is not particularly helpful to a jury that must rely upon its own common sense as a barometer for the evaluation of truthfulness. The cases all seem to focus on, in the face of such expert testimony, fears of the jury surrender[ing] its own common sense in weighing [victim] testimony and deferr[ing] to [a] diagnosis [of sexual abuse] without knowing that the diagnosis was nothing more than a subjective opinion favoring [the victim].

> United States v. Whitted, 994 F.2d 444, 447 (8th Cir.1993).

One of the early cases on this matter that has been repeatedly followed is > United States v. Azure, 801 F.2d 336 (8th Cir.1986). There, the court held that a pediatrician's

comment on whether or not the victim was indeed telling the truth about being the victim of sexual abuse was held to be reversible error:

Credibility, however, is for the jury--the jury is the lie detector in the courtroom ... It is now suggested that psychiatrists and psychologists have more [expertise in weighing the veracity of a witness] than either judges or juries, and that their opinions can be of value to both judges and juries in determining [credibility]. Perhaps. The effect of receiving such testimony, however, may be twofold: first, it may cause juries to surrender their own common sense in weighing testimony; second, it may produce a trial within a trial on what is a collateral but still an important matter.

> 801 F.2d at 340, citing > United States v. Barnard, 490 F.2d 907, 912 (9th Cir.1973).

Other jurisdictions agree with this reasoning on the subject of expert testimony on abuse victims' credibility. In > Commonwealth v. Seese, 512 Pa. 439, 517 A.2d 920, 922 (1986), the Pennsylvania Supreme Court noted that this type of expert testimony was "an encroachment upon the province of the jury"; the court emphatically stated that to permit expert testimony for the purpose of determining the credibility of a witness would be an invitation for the trier of fact to abdicate its responsibility to ascertain the facts relying upon the questionable premise that the expert is in a better position to make such a judgment.

> Seese, 517 A.2d at 922. (Citations omitted.) The court also opined that, if experts were permitted to testify as to the credibility of a particular class of witnesses (abused children), then "one could imagine 'experts' testifying as to the veracity of the elderly, various ethnic groups, of members of different religious faiths, of persons employed in various trades or professions, etc." > Id., at 922. The result would be to encourage jurors to shift their focus from determining the credibility of the particular witness who testified at trial, allowing them instead to defer to the so-called "expert" assessment of the truthfulness of the class of people of which the particular witness is a member. In addition, such testimony would imbue the opinions of "experts" with an unwarranted appearance of reliability on a subject, veracity, which is not beyond the facility of the ordinary juror to assess.

> Id. > (FN13) (Emphasis in original.)

Many states have echoed this sentiment. North Carolina has, on virtually the same basis, rejected this species of expert testimony on credibility, stating that "[t]he jury is the lie detector in the courtroom and is the only proper entity to perform the ultimate function of every trial--determination of the truth." > State v. Chul Yun Kim, 318 N.C. 614, 350 S.E.2d 347, 351 (1986). Kansas has also failed to embrace this sort of expert assistance as "human lie detectors for the child", asserting that it is "the function of the jury to hear the testimony of the witnesses as to what the child said, and then make a determination of the reliability of the child's statements." > State v. Jackson, 239 Kan. 463, 721 P.2d 232, 238 (1986). The Supreme Court of Oregon, in what may be the most emphatic rejection of proffers of such expert testimony, has stated that

We have said before, and we will say it again, this time with emphasis--we really mean it--no psychotherapist may render an opinion on whether a witness is credible in any trial conducted in this state.

The assessment of credibility is for the trier of fact and not for psychotherapists. > State v. Milbradt, 305 Or. 621, 756 P.2d 620, 624 (1988). (Emphasis in original.)

Courts have also been concerned with unfair prejudice to the defendant from this type of expert testimony. Prejudice can result from the testimony's giving "factfinder[s] ... little more than a false sense of security based on the incorrect assumption that a reasonably accurate scientific explanation [for behavior] has been provided." Morse, supra, at 1026. This testimony on credibility has the effect of "putting an impressively qualified expert's stamp of truthfulness" on a witness' testimony. > Azure, supra, at 340. This "stamp" has the effect of "so bolstering a witness' testimony ... [as to] artificially increase its probative strength with the jury and ... its admission may in some situations on this basis constitute reversible error." > Homan v. United States, 279 F.2d 767, 772 (8th Cir.), cert. denied, > 364 U.S. 866, 81 S.Ct. 110, 5 L.Ed.2d 88 (1960).

This bolstering of credibility has the effect of unfairly prejudicing a criminal defendant, and, as such, the use of CSAAS-based testimony for the purpose of bolstering a witness' credibility creates a risk of prejudice that outweighs its questionable probative value. Given the near unanimity of other jurisdictions' disapproval of CSAAS-based testimony as a determinant of abuse, coupled with our observations of the risk of prejudice inherent in CSAAS, this court now concludes that such opinion testimony as a determinant of a victim/witness' credibility is not admissible.

VI. Several jurisdictions have wrestled with the problem of admission of this testimony for any purpose. Some jurisdictions have allowed its admission for the limited purpose of rebutting attacks on the victim's credibility based on inconsistent statements, limited disclosures, or recantations of the testimony. See > State v. Moran, 151 Ariz. 378, 728 P.2d 248 (1986); > Smith v. State, 100 Nev. 570, 688 P.2d 326 (1984); > State v. Hicks, 148 Vt. 459, 535 A.2d 776 (1987). Other jurisdictions have flatly refused its admission at all. See > State v. Myers, 382 N.W.2d 91 (Iowa 1986); > Commonwealth v. Seese, supra. > (FN14) After weighing the varying approaches, this court has decided to follow the former approach, and allow the testimony to be admitted for very limited purposes.

When dealing with expert testimony, the critical question is "On this subject, can a jury receive appreciable help from this person?" Comment, "Psychological Expert Testimony on a Child's Veracity In Child Sexual Abuse Prosecutions", 50 La.L.R. 1039, 1047, citing 3A J. Wigmore, A Treatise on the Anglo-American System of Evidence in Trials at Common Law 509 (J. Chadbourne rev. ed. 1978). "Under certain circumstances, expert psychiatric testimony may reveal to the trier of fact characteristics or conditions of the witness which may assist the jury's assessment of credibility." > State v. Kim, 64 Haw. 598, 645 P.2d 1330, 1334 (1982). The two most prevalent of these characteristics that may confound a jury are recantation and delayed reporting. 50 La.L.R. at 1046. The court in > State v. Myers, 359 N.W.2d 604, 610 (Minn.1984), summed up the need for an expert to "place it in perspective":

The nature ... of the sexual abuse of children places lay jurors at a disadvantage.

Incest is prohibited in all or almost all cultures, and the common experience of the jury may represent a less than adequate foundation for assessing the credibility of a young child who complains of sexual abuse ... By explaining the emotional antecedents of the victim's conduct and the peculiar impact of the crime on other members of the family, an expert can assist the jury in evaluating the credibility of the complainant.

The proper presentation of this sort of expert testimony must focus on explaining to a jury why "superficially bizarre" reactions such as delayed reporting, etc. take place in such cases. > Wheat v. State, 527 A.2d 269, 273 (Del.1987). The opinion testimony must "seek to demonstrate or explain in general terms the behavioral characteristics of child abuse victims in disclosing alleged incidents," without giving "testimony directly concerning the particular victim's credibility." > State v. Spigarolo, 210 Conn. 359, 556 A.2d 112, 123 (1989). If the testimony is limited in this fashion, then it is of assistance to the jury in evaluating the psychological dynamics and resulting behavior patterns of alleged victims of child abuse, where the child's behavior is not within the common experience of the average juror. > Wheat, supra, at 275. See also, > Frenzel v. State, 849 P.2d 741 (Wyo.1993).

The expert testimony on why victims might recant or delay reporting is being offered to rebut attacks on the victim's credibility. So long as the expert limits the testimony to general characteristics that would explain delays in reporting, recantations, and omission of details, the testimony will not substitute [the expert's] estimation of credibility for that of the jury. Rather, it is to provide a scientific perspective for the jury according to which it can evaluate the complainant's testimony for itself. Goldstein, "Credibility and Incredibility: The Psychiatric Examination of the Complaining Witness", 137 Am.J.Psychia. 1238, 1240 (1980).

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THE FORET EXPERT RENDERED AND OPINION ON TRUTHFULNESS:

In the instant case, the expert testified as to his expert opinion on the victim's credibility, and did not limit his testimony to general information about possible psychiatric explanations for the delay in reporting. In fact, the expert based most of his opinion upon the "level of detail" of the child's description of the sexual abuse. He concluded with an objected-to summation that, in his expert opinion, the witness was telling the truth on that occasion as to whether abuse had occurred. This expert assessment of the witness' credibility was improper, making the trial court's overruling of the objection erroneous.

VII.

Finally, as there was error in the admission of the testimony, we must, before considering whether or not to reverse, determine whether or not it was harmless. > La.C.Cr.P. art. 921 recognizes that not all errors require reversal, as it mandates that (a) judgment or ruling shall not be reversed by an appellate court because of any error, defect, irregularity, or variance which does not affect substantial rights of the accused.

This sentiment was echoed by this court in > State v. Gibson, 391 So.2d 421, 428 (La.1980):

Our state constitution and statutory harmless error rule admonish a reviewing court generally to shun factual questions and to reverse only when substantial rights of the accused have been affected.

When considering the erroneous admission of evidence, this court has set out the test to be "whether there is a reasonable possibility that the evidence might have contributed to the verdict, and whether the reviewing court is prepared to state beyond a reasonable doubt that it did not." > State v. Walters, 523 So.2d 811 (La.1988).

In this instance, the state's case was based largely upon the testimony of the victim. The inadmissible expert testimony served to unduly bolster this testimony and, in all probability, made it much more believable to the jury. Consequently, the jury probably gave the testimony of the victim more weight than it, standing alone, would have otherwise received. Given this effect of the expert's testimony, this court is not prepared to state that, beyond a reasonable doubt, the testimony of Dr. Janzen had no effect on the guilty verdict. Thus, the error is not harmless, and warrants reversal.

VIII. Child abuse is a pernicious problem in our society that must be properly addressed and extirpated. However, in our efforts to deal with this growing problem, we should balance other "competing considerations", such as a defendant's right to a fair trial. > Wheat v. State, supra, at 274, citing > State v. Myers, supra, at 97. After undertaking the exercise of balancing these concerns, this court has determined that CSAAS-based evidence should be admissible only for the limited purpose of explaining, in general terms, certain reactions of a child to abuse that would be used to attack the victim/witness' credibility.

A GATEKEEPING HEARING IS INDICATED:

We noted early on in this opinion that no evidentiary hearing was held pursuant to the trial court's gatekeeping function to determine the > Daubert factors governing admissibility of the expert evidence presented in this case. Accordingly, our analysis of the issues is based on consideration of the information gleaned from prior reported cases and published literature on the subject matter. The rules established in this decision pertaining to this developing area are not necessarily static. These rules do not preclude consideration by a trial court, performing its gatekeeping function via an evidentiary hearing, of the admissibility of psychological testimony in sexual abuse cases for certain limited purposes, based on current evidence bearing on the reliability and accuracy of this type of evidence.

As the State's use of CSAAS-based testimony was not so limited at the trial court, it constituted an improper comment on the victim's credibility, and served to unduly prejudice the defendant. As this prejudice created an error that was not harmless, we must and do hereby reverse the conviction and remand the case to the district court for a new trial.

REVERSED AND REMANDED.

DENNIS, J., concurs with reasons.
LEMMON, J., concurs and assigns reasons.
LEMMON, Justice, concurring.
I concur in the reversal of the conviction because, for the reasons stated in Part II, the trial court erroneously allowed the testimony of a psychologist (or failed to grant a continuance) when the prosecutor did not furnish a copy of the psychologist's report to the defense until the morning of the trial. I also concur in the reversal based on Part V because the court allowed the psychologist to state his expert opinion on the credibility of the prosecuting witness' testimony that she had been sexually abused. However, I would decline to define in this case the limitations on the admissibility of testimony of a psychologist regarding his experience in the treatment of sexually abused children. > (FN1) I would simply reverse, allowing the trial court on remand to perform the "gatekeeping" function and to determine the reliability of any expert evidence under the > Daubert criteria.
628 So.2d 1116, State v. Foret, (La. 1993)

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POLYGRAPH: SCIENCE?

------------ Excerpt from page 118 S.Ct. 1262
State and federal governments unquestionably have a legitimate interest in ensuring that reliable evidence is presented to the trier of fact in a criminal trial. Indeed, the exclusion of unreliable evidence is a principal objective of many evidentiary rules. See, e.g., > Fed. Rule Evid. 702; > Fed. Rule Evid. 802; > Fed. Rule Evid. 901; see also > Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589, 113 S.Ct. 2786, 2794-2795, 125 L.Ed.2d 469 (1993).
The contentions of respondent and the dissent notwithstanding, there is simply no consensus that polygraph evidence is reliable. To this day, the scientific community remains extremely polarized about the reliability of polygraph techniques.

Evidence is "relevant" if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." > Fed. Rule Evid. 401. As we observed in > Arlington Heights, 429 U.S., at 266, 97 S.Ct., at 563-564, the impact of an official action is often probative of why the action was taken in the first place since people usually intend the natural consequences of their actions. Thus, a jurisdiction that enacts a plan having a dilutive impact is more likely to have acted with a discriminatory intent to dilute minority voting strength than a jurisdiction whose plan has no such impact. A jurisdiction that acts with an intent to dilute minority voting strength is more likely to act with an intent to worsen the position of minority voters--i.e., an intent to retrogress--than a jurisdiction acting with no intent to dilute. The fact that a plan has a dilutive impact therefore makes it "more probable" that the jurisdiction adopting that plan acted with an intent to retrogress than "it would be without the evidence." To be sure, the link between dilutive impact and intent to retrogress is far from direct, but "the basic standard of relevance ... is a liberal one," > Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 587, 113 S.Ct. 2786, 2794, 125 L.Ed.2d 469 (1993), and one we think is met here.

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PROCEDURE FOR THE GATEKEEPING BY THE DISTRICT COURT

The district court was entitled to conclude that the above bases for Dr. Jenkins's opinion were individually and collectively inadequate under > Daubert. First, Dr. Jenkins's training and experience and his examination and tests, items 4 and 5 above, were obviously important to his diagnosis. However, Dr. Jenkins gave no reason why these items were helpful in reaching his conclusion on causation. He admitted that he had never previously treated a patient who had been exposed to a similar Toluene solution. Dr. Jenkins was a highly qualified pulmonary specialist, but, as the Seventh Circuit observed in > Rosen v. Ciba-Geigy Corp., 78 F.3d 316 (7th Cir.1996), "[u]nder the regime of > Daubert a district judge asked to admit scientific evidence must determine whether the evidence is genuinely scientific, as distinct from being unscientific speculation offered by a genuine scientist." > Id. at 318 (internal citation omitted).

1998 WL 476214, Moore v. Ashland Chemical Inc., (C.A.5 (Tex.) 1998) ------------ Excerpt from page 181

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Castillo raises three issues before this court in support of his request for federal habeas corpus relief. He argues that: 1) the state of Texas was allowed to rely on a per se bar to the admission of relevant exculpatory and mitigating polygraph evidence; 2) exculpatory information known by the prosecution was withheld from defense counsel in violation of the Fourteenth Amendment and > Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); and 3) the presentation of victim impact testimony and argument violated the Eighth and Fourteenth Amendments. We find that Castillo does not assert claims that warrant redress through federal habeas corpus relief.

Castillo first argues that the trial court violated his federal constitutional rights by excluding testimony relating to the results of a polygraph examination of Rudolfo Rodriguez, an early suspect in the Champion murder, at Castillo's trial. He urges that Texas' mechanistic rule of per se polygraph exclusion violates his right to due process and the fundamental right to present a defense. Castillo insists that he sought to introduce at trial evidence of a failed polygraph examination that inculpated Rodriguez. Castillo contends that such evidence was crucial to his defense as it directly contradicts the State's theory of the case.

In support of these arguments, Castillo relies on the Supreme Court's opinion in > Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and this court's opinion in > United States v. Posado, 57 F.3d 428 (5th Cir.1995). As the state indicates in its response, however, neither of the aforementioned cases purported to address the issue of the admissibility of polygraph evidence in the context of federal constitutional law. Accordingly, neither case recognizes a federal constitutional right to admit polygraph evidence.

141 F.3d 218, Castillo v. Johnson, (C.A.5 (Tex.) 1998) ---- Excerpt from page 141 F.3d 221

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Griffith's and McMillan's references to marijuana prices and quantities would have been incomprehensible to the jury without assistance from a witness schooled in the ways of the drug trade. Even if the references to the "pine smell" and "smoking" hinted at the topic being discussed, Agent Nave's opinion testimony undoubtedly was helpful to the jury in deciphering the details of the proposed transactions. Griffith claims, however, that the district court abused its discretion by allowing Nave to interpret his wiretapped conversations. He contends that the government failed to carry its burden of proving, by a preponderance of the evidence, that Nave was an expert in the "jargon," "argot," or "code words" of the wholesale drug trade. See > Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 591-93 n. 10, 113 S.Ct. 2786, 2796 n. 10, 125 L.Ed.2d 469 (1993) (under > FED. R. EVID. 104(a), the proponent of expert testimony must establish the witness's qualifications by a preponderance of proof (internal citation omitted)).

Griffith's argument raises the threshold question of whether Nave was in fact permitted to testify as an expert. As a formal matter, Nave was neither proffered as an expert by the prosecution nor qualified as one by the district court. Nonetheless, the district court questioned her about her experience as a drug investigator and repeatedly offered defense counsel the opportunity to traverse or cross-examine her as to her "expertise." > (FN4) Moreover, Nave herself testified that her opinions were based on her "knowledge and experience." Cf. > FED. R. EVID. 702.

On balance, we think it is clear that the district court and the parties treated Nave in substance as an expert. The question is whether this was an abuse of discretion, > Snap-Drape, Inc. v. Commissioner of Internal Revenue, 98 F.3d 194, 197 (5th Cir.1996), either because Nave was in fact unqualified to give expert testimony, or because the court failed to formally qualify her.

We have little doubt that Nave was qualified to give expert testimony regarding the ways of drug dealers. Her experience at the time of trial included eight-and-one-half years as a DEA agent, during which she participated in 50 investigations, working at times in an undercover capacity. In her career, Nave surely has had ample opportunity to listen to drug dealers converse and to decipher the nuances of their conversations. Moreover, we are not convinced that the government, having established Nave's qualifications as an expert in drug trafficking generally, was required to prove her particular knowledge of drug dealers' jargon. Defense counsel could have questioned Nave's

We hold that there was no abuse of discretion in the district court's implicit finding that Nave was qualified as an expert on drug trafficking. She clearly was qualified by knowledge and experience to interpret drug dealers' jargon; the subject "had esoteric aspects reasonably perceived as beyond the ken of the jury," > Romero, 57 F.3d at 571 (internal citation omitted), making it fit for an expert's analysis; and her testimony shed light on the crucial issue of Griffith's willing participation in a marijuana distribution conspiracy. Nor did the court abuse its discretion by failing to establish Nave's credentials until midway through her testimony. At worst, the district court committed a technical error by failing to state that Nave was qualified as an expert and by not requiring the government to establish her credentials at the start of her testimony.

------------ Excerpt from pages 118 F.3d 322-118 F.3d 323

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DAUBERT IN AN EXPROPRIATION

In this case, the district court determined that pursuant to the Supreme Court's recent decision in > Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the proposed expert testimony of Rogers Varner and Rip Walker was based on too flimsy a foundation to be admissible. The court found the testimony to be "speculative", because both witnesses were tentative about the possibility of flooding on Coker's property, and observed that even so-called "anticipated damages" must be based on "substantial data then available." > 884 F.Supp. at 227. We think that the district court applied too stringent a reliability test in this regard. In > Daubert, the Supreme Court held that the common-law, "general acceptance" test for the admissibility of novel scientific evidence articulated in > Frye v. United States, 54 App.D.C. 46, 293 F. 1013 (1923), did not survive the advent of the Federal Rules of Evidence, and articulated standards for determining the reliability of scientific expert testimony for purposes of admitting the evidence at trial. > (FN3) The case did not otherwise work a sea change over federal evidence law. See > United States v. Sinclair, 74 F.3d 753, 757 (7th Cir.1996) > ("Daubert does not create a special analysis for answering questions about the admissibility of all expert testimony.").

Rather, > Daubert articulates what the Federal Rules of Evidence, as well as a trial court's traditional role, alin the initial "gate keeping" task of establishing whether proffered evidence is sufficiently reliable and relevant, and thus presumptively admissible unless excludable on some other ground. See > Daubert, 509 U.S. at ----, 113 S.Ct. at 2799 ("the Rules of Evidence ... do assign to the trial judge the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand."). As the Court in > Daubert makes clear, however, the trial court's role as gatekeeper is not intended to serve as a replacement for the adversary system: "Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." > Daubert, 509 U.S. at ----, 113 S.Ct. at 2798.

In this case, the experts' inability to predict the extent of flooding to Coker's property as a result of future heavy rains does not render their testimony entirely speculative and therefore unreliable for purposes of admissibility. Indeed, common sense suggests that the Government would not have gone to the expense of taking private property and erecting a levee for the purpose of "flood control in Yazoo River Basin" were the possibility of flooding in the area mere "speculation and conjecture."

80 F.3d 1074, U.S. v. 14.38 Acres of Land, More or Less Situated in Leflore County, State of Miss., (C.A.5 (Miss.) 1996) ---------- Excerpt from page 80 F.3d 1078
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OK, WHAT ABOUT THE POLYGRAPH

Pettigrew argues that the fact that the district court denied his motion requesting the admission of the polygraph results without a hearing indicates that the court necessarily applied a per se rule of inadmissibility. While generally we do not sanction efforts to "short-circuit" the > Daubert analysis, when the offer fails the second prong of the > Rule 702 inquiry we see little reason to force a district court to expend precious judicial resources in painstakingly evaluating the scientific validity of the evidence under > Daubert.

Further, even if the evidence offered by Pettigrew survived the > Rule 702 inquiry, the potential for prejudice created by such evidence is high in the absence of appropriate safeguards. In > Posado, we suggested that an "enhanced role" for > Rule 403 may be appropriate in the context of the > Daubert analysis due to the possible prejudicial effect of polygraph evidence in comparison to its probative value. We identified several safeguards present in > Posado which operated to counterbalance such prejudice. For instance, the prosecution was contacted before the examination was administered and given the opportunity to participate, and the evidence was not offered at trial before a jury but in a pretrial suppression hearing before a judge who would be less likely to be "intimidated by claims of scientific validity." > Posado, 57 F.3d at 435. We further observed that the rules of evidence are relaxed in pretrial suppression hearings. > Id.

None of these safeguards were present in the case before us. The polygraph examination was administered by an expert selected by t