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U.S. v. HALL

August 13, 1997

UNITED STATES OF AMERICA, PLAINTIFF,
v.
LARRY D. HALL, DEFENDANT.



The opinion of the court was delivered by: McDADE, District Judge.

ORDER

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

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
  received?

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 apt:

  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
  ...

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