The opinion of the court was delivered by: McDADE, District Judge.
Before the Court is the Government's Motion to Preclude Dr.
Ofshe's Testimony at Trial [Doc. # 164]. Dr. Richard Ofshe is
a social psychologist operating in the field of coercive
police interrogation techniques and the phenomenon of false or
coerced confessions. He is prepared to testify that experts in
his field agree that false confessions exist, that individuals
can be coerced into giving false confessions, and that there
exist identifiable coercive police interrogation techniques
which are likely to produce false confessions.
At Defendant's first trial, the district court rejected Dr.
Ofshe's proffered testimony under Fed.R.Evid. 702. However, in
United States v. Hall, 93 F.3d 1337, 1344-45 (7th Cir. 1996),
the Seventh Circuit vacated Defendant's conviction and remanded
the case to this Court to correct the prior court's "failure to
conduct a full Daubert inquiry, applying the correct legal
standards under Rule 702." Pursuant to this directive, the
Court held an extensive Rule 104(a) hearing to determine the
admissibility of Dr. Ofshe's expert testimony.
The Government postulates that Defendant must show a
scientific basis for Dr. Ofshe's expert opinion because it is
based upon "scientific [ ] knowledge" under Rule 702.
Conversely, Defendant contends that Dr. Ofshe's expert
testimony is derived from a body of "specialized knowledge"
under Rule 702 whose validity should not be analyzed under the
Daubert standard. This case raises a rather perplexing
question: to what extent, if any, does Daubert apply to "soft"
sciences such as social psychology?
Scientific v. Specialized Knowledge
In Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579, 581, 113 S.Ct. 2786, 2791, 125 L.Ed.2d 469 (1993), the
Supreme Court determined the proper standard "for admitting
expert scientific testimony in a federal trial." The Court
rejected the Frye
"general acceptance" test for the more liberal standard
embodied in Fed.R.Evid. 702 that the expert need only testify
to "(1) scientific knowledge that (2) will assist the trier of
fact to understand or determine a fact in issue."
Daubert, 509 U.S. at 592, 113 S.Ct. at 2796. The Court stated
that in order to "qualify as `scientific knowledge,' an
inference or assertion must be derived by the scientific
method." Id. at 590, 113 S.Ct. at 2795. The Court noted four
nonexhaustive factors that would bear on this inquiry:
falsifiability, peer review, rate of error and general
acceptance. Id. at 593-94, 113 S.Ct. at 2796-97.
Rule 702, however, speaks not only of "scientific" knowledge
but also of "technical, or other specialized knowledge" as
alternative bases for an expert's opinion. The Court in
Daubert was careful to point out that its discussion did not
reach "technical" or "specialized" knowledge under the Rule.
Id. at 590 n. 8, 113 S.Ct. at 2795 n. 8. Chief Justice
Rehnquist's partial dissent noted the problem:
Does all of this dicta [regarding the four
factors] apply to an expert seeking to testify on
the basis of "technical or other specialized
knowledge" — the other types of expert knowledge
to which Rule 702 applies — or are the "general
observations" limited only to "scientific
knowledge"? What is the difference between
scientific knowledge and technical knowledge; does
Rule 702 actually contemplate that the phrase
"scientific, technical, or other specialized
knowledge" be broken down into numerous subspecies
of expertise, or did its authors simply pick
general descriptive language covering the sort of
expert testimony which courts have customarily
Id. at 600, 113 S.Ct. at 2800 (Rehnquist, J., concurring in
part and dissenting in part).
Fortunately, four years have passed since the
Daubert decision and there is both academic literature and case
authority to guide the Court. Two conflicting views have been
espoused. The first argues that Rule 702's reference to
"technical, or other specialized knowledge" does not give
courts or litigants an opportunity to circumvent the strict
requirements of the scientific method as espoused in Daubert.
Rather, "Rule 702 contemplates a fluid analysis, with a
preference for scientific knowledge when it is or should be
available." David L. Faigman, The Evidentiary Status of Social
Science Under Daubert: Is It "Scientific," "Technical," Or
"Other" Knowledge?, 1 Psychol. Pub. Pol'y & L. 960, 979 (1995).
Under this view, the Daubert test should be applied to all
three types of knowledge specified in Rule 702. Id. at 964. The
reference to "technical, or other specialized knowledge" merely
"relaxes the requirement for a scientific demonstration when a
less rigorous, less time-consuming, and less expensive
alternative would provide sufficiently accurate information."
Thus, for example, a mechanic can testify about his practical
knowledge of carburetors without requiring his conclusions to
be deduced from the scientific method. Id. at 964. However, the
fact that a topic may be too complex for experimental analysis
does not justify relaxing the standards of Rule 702 and
ignoring Daubert. Id. at 963-64, 979.
The second, and in the Court's opinion, the better view, is
that testimony which is simply not amenable to the scientific
method should not be subjected to the strictures of
Daubert and instead can pass as "specialized knowledge." See
Jennifer Laser, Inconsistent Gatekeeping in Federal Courts:
Application of Daubert v. Merrell Dow Pharmaceuticals, Inc. to
Nonscientific Expert Testimony, 30 Loy. L.A. L.Rev. 1379
(1997); Teresa S. Renaker, Evidentiary Legerdemain: Deciding
When Daubert Should Apply to Social Science Evidence, 84 Cal.
L.Rev. 1657 (1996); Edward J. Imwinkelried, The Next Step After
Daubert: Developing a Similarly Epistemological Approach to
Ensuring the Reliability of Nonscientific Expert Testimony, 15
Cardozo L.Rev. 2271 (1994).
These commentators distinguish between those experts who
practice Newtonian science, which utilizes the experimental
method to validate or disprove hypotheses, and those who
acquire their knowledge by formal instruction, experience or
observation. The Court in Daubert dealt expressly with
Newtonian experimental science when it articulated such
considerations as whether the hypothesis is testable
(falsifiability), whether it in fact had been tested (peer
review), and whether there was a known error rate.
Daubert, 509 U.S. at 593-94, 113 S.Ct. at 2796-97. These
concerns have little or no application to nonscientific expert
evidence. The Sixth Circuit has noted that application of these
factors to nonscientific evidence would "turn Daubert, a case
intended to relax the admissibility requirements for expert
scientific evidence, on its head." United States v. Jones,
107 F.3d 1147, 1157-58 (6th Cir.), cert. denied, ___ U.S. ___, 117
S.Ct. 2527, 138 L.Ed.2d 1027 (1997).
One way to distinguish between "hard" scientific testimony
and "other specialized knowledge" is to look to the purpose
for which the evidence is being introduced. If the testimony
posits an explanatory theory to draw a conclusion or determine
causation in a particular case, this would normally require
experimental verification, the focal point of Newtonian
science. Conversely, if the testimony involves a simple
correlational study between different factors or events,
without attempting to determine causation, there is no need
for experimental verification and it can be classified as
specialized knowledge. See Nations v. State, 944 S.W.2d 795,
800-01 (Tex. Ct. App.-Austin 1997); Renaker, Evidentiary
Legerdemain, 84 Cal. L.Rev. at 1686-91.
Another distinguishing factor is whether such knowledge can
be derived from experience or training as opposed to
controlled experimentation. The analogy in Berry v. City of
Detroit, 25 F.3d 1342, 1349-50 (6th Cir. 1994), is particularly
The distinction between scientific and
non-scientific expert testimony is a critical
one. By way of illustration, if one wanted to
explain to a jury how a bumblebee is able to fly,
an aeronautical engineer might be a helpful
witness. Since flight principles have some
universality, the expert could apply general
principles to the case of the bumblebee.
Conceivably, even if he had never seen a