Scientific Peer Review of Expert Witness Testimony: Is the World Ready?

 

Even before the Frye decision was handed down in 1923, questions have been raised about a judge’s capacity to adroitly evaluate the scientific legitimacy of testimony offered by expert witnesses.

In this well-crafted and articulate article published 3/10/2015 in Bloomberg BNA’s Expert Evidence Reporter, Professor David Faigman, Distinguished Professor of Law at University of California Hastings College of the Law, addresses this question in depth.  Not only does he point out the many reasons why asking judges to make meaningful decisions regarding complicated scientific questions is unrealistic, he also poses an interesting solution to the problem:  scientific peer review of expert witness testimony.

As Prof. Faigman explains, “Frye and Daubert both contemplate that the law should employ scientific knowledge that has achieved some foundation in the field from which it comes. Neither, however, details how this should be accomplished as a practical matter.  Frye calls upon courts to assess the level of acceptance of the basis for proffered scientific testimony, but courts have no ready mechanism to survey applicable fields.  Daubert calls upon judges to adjudge the validity of the basis for proffered scientific testimony by considering the scientific merits themselves or proxies such as peer review and general acceptance, though courts have little demonstrated ability to carry out this function. The question then is, given evidence rules’ demand that courts bring scientific sensibilities to the issue of admissibility, how can courts best obtain and utilize those sensibilities. [The idea of] peer review appears to be the most promising alternative.”

Promising….yes.  How such an alternative can be implemented and applied in the courtroom is the big question.

To read the entire article, visit http://bit.ly/ewpfaigman.

  • Amit Lakhani

    Thanks for the article, Myles! I think the world IS ready for peer review of expert reports. In fact, in a world of higher stakes and cost pressures, peer review of expert reports can serve as the new way to prevail in Daubert motions and gain favorable settlements. See http://www.jurilytics.com for more information!