The situation is very different in civil cases. The party who loses before the trial court in a nonfrivolous civil case always has the right and incentive to appeal to contest the admission or exclusion of expert testimony. In addition, plaintiffs and defendants, equally, are more likely to have access to expert witnesses in civil cases, whereas prosecutors usually have an advantage over most defendants in offering expert testimony in criminal cases. And, ironically, the appellate courts appear to be more willing to second-guess trial court judgments on the admissibility of purported scientific evidence in civil cases than in criminal cases.53

plaintiffs, those defendants usually win, but when criminal defendants’ proffers are challenged by the prosecution, the criminal defendants usually lose.” D. M. Risinger Navigating expert reliability: Are criminal standards of certainty being left on the dock? 64 ALB. L. REV. 99, 99 (2000). However, the sample of federal district court decisions included “only sixty-five … criminal cases, and only fifty-four dealt with dependability issues in a guilt-or-innocence context …. These fifty-four cases represented twelve opinions on defense challenges to prosecution proffers, and forty-two opinions on government challenges to defense proffers. Of the twelve defense challenges, the government’s challenged evidence was fully admitted eleven times, and admitted with restrictions once.” Ibid., p. 109 (emphasis added) (footnotes omitted). The study did not include any sample of trial court dispositions of Daubert-type claims in which no opinion was issued, which might explain why the study included only 12 dispositions of defense challenges to prosecution proffers. The author speculated that “one can be relatively confident that virtually any decision totally excluding government proffered expertise on dependability grounds would have been the subject of some sort of opinion, at least the first time the decision was made in regard to a particular kind of proffer.” Ibid. But there is no reason to believe that this assumption is correct. Trial judges routinely issue evidentiary rulings without reported opinions, and many such rulings might implicate Daubert-type questions. Merely because a defense attorney fails to state “I object on Daubert grounds” says very little about whether the objection raises an issue that is cognizable under Daubert.

53

See, e.g., McClain v. Metabolife Int’l, Inc., 401 F.3d 1233 (11th Cir. 2005); Chapman v. Maytag Corp., 297 F.3d 682 (7th Cir. 2002); Goebel v. Denver & Rio Grande W. R.R. Co., 215 F.3d 1083 (10th Cir. 2000); Smith v. Ford Motor Co., 215 F.3d 713 (7th Cir. 2000); Walker v. Soo Line R.R. Co., 208 F.3d 581 (7th Cir. 2000); see also 1 Faigman et al., op. cit., supra note 1, § 1:35, p. 105 (discussing studies suggesting that courts “employ Daubert more lackadaisically in criminal trials—especially in regard to prosecution evidence—than in civil cases—especially in regard to plaintiff evidence”); Risinger, op. cit., supra note 52, p. 100 (“The system shipwreck I fear is that in ten years we will find that civil cases are subject to strict standards of expertise quality control, while criminal cases are not. The result would be that the pocketbooks of civil defendants would be protected from plaintiffs’ claims by exclusion of undependable expert testimony, but that criminal defendants would not be protected from conviction based on similarly undependable expert testimony. Such a result would seem particularly unacceptable given the law’s claim that inaccurate criminal convictions are substantially worse than inaccurate civil judgments, reflected in the different applicable standards of proof.”).



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