Experts & Confidentiality - Pettus v. Cole - Cal Ct. Appeal 1996

In California Psychiatric Experts Are Under the Same Privilege/Confidentiality Obligations  as are Treating Psychiatrists

California Appellate Decision Regarding Privilege/Confidentiality Duties of Non-Treating, Psychiatric Experts: see PETTUS V. COLE, 57 Cal.Rptr.2d 46 (1996)
Court of Appeal, First District, Division 2, California 

from the Headnotes:

"Two psychiatrists violated the Confidentiality of Medical Information Act(Civ. Code, S 56 et seq.) when they disclosed the details of their evaluations of an employee who sought stress-related disability leave to his supervisors at work without his written authorization. Civ. Code, S 56.10, subd. (c)(8)(B), limits permissible disclosure to a description of any "functional limitations" that may have entitled the employee to leave work, and also explicitly prohibits disclosure of "medical cause." These psychiatrists described in detail the employee's hostility toward the company and a coworker, his drinking habits, and other details about his personal life, disclosures which went well beyond a description of "functional limitations." 

"(3) Employer and Employee S 7--Contracts of Employment--Medical Care-- Unauthorized Disclosure of Medical Information to Patient's Employer-- Employee's "Patient" Status. 

An employee who was evaluated by two psychiatrists in connection with his request for stress-related disability leave was a "patient" within the meaning of the Confidentiality of Medical Information Act (Civ. Code, S 56 et seq.) and thus was protected by the act's provisions."

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Frye v. The United States

No. 3968
Court of Appeals of District of Columbia
293 F. 1013; 1923 U.S. App. LEXIS 1712; 54 App. D.C. 46; 34
A.L.R. 145
December 3, 1923, Decided

PRIOR HISTORY:   [**1]   

Appeal from the Supreme Court of the District of Columbia.

CORE TERMS: blood pressure, deception, systolic, conscious, discovery, scientific principle, expert testimony, scientific, experiments, admissible, falsehood, admitting, skilled, deduced

OPINION BY: VAN ORSDEL

OPINION:   [*1013]   Before SMYTH, Chief Justice, VAN ORSDEL, Associate Justice, and MARTIN, Presiding Judge of the United States Court of Customs Appeals.

VAN ORSDEL, Associate Justice.  Appellant, defendant below, was convicted of the crime of murder in the second degree, and from the judgment prosecutes this appeal.

A single assignment of error is presented for our consideration.  In the course of the trial counsel for defendant offered an expert witness to testify to the result of a deception test made upon defendant.  The test is described as the systolic blood pressure deception test.  It is asserted that blood pressure is influenced by change in the emotions of the witness, and that the systolic blood pressure rises are brought about by nervous impulses sent to the sympathetic branch of the autonomic nervous system.  Scientific experiments, it is claimed, have demonstrated that fear, rage, and pain always produce a rise of systolic blood pressure, and that conscious deception or falsehood, concealment of facts, or guilt of crime, accompanied by fear of detection when the person is under examination,   [**2]   raises the systolic blood pressure in a curve, which corresponds exactly to the struggle going on in the subject's mind, between fear and attempted control of that fear, as the examination [*1014]   touches the vital points in respect of which he is attempting to deceive the examiner.

In other words, the theory seems to be that truth is spontaneous, and comes without conscious effort, while the utterance of a falsehood requires a conscious effort, which is reflected in the blood pressure.  The rise thus produced is easily detected and distinguished from the rise produced by mere fear of the examination itself.  In the former instance, the pressure rises higher than in the latter, and is more pronounced as the examination proceeds, while in the latter case, if the subject is telling the truth, the pressure registers highest at the beginning of the examination, and gradually diminishes as the examination proceeds.

Prior to the trial defendant was subjected to this deception test, and counsel offered the scientist who conducted the test as an expert to testify to the results obtained.  The offer was objected to by counsel for the government, and the court sustained the objection.   [**3]   Counsel for defendant then offered to have the proffered witness conduct a test in the presence of the jury.  This also was denied.

Counsel for defendant, in their able presentation of the novel question involved, correctly state in their brief that no cases directly in point have been found.  The broad ground, however, upon which they plant their case, is succinctly stated in their brief as follows:

"The rule is that the opinions of experts or skilled witnesses are admissible in evidence in those cases in which the matter of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it, for the reason that the subject-matter so far partakes of a science, art, or trade as to require a previous habit or experience or study in it, in order to acquire a knowledge of it.  When the question involved does not lie within the range of common experience or common knowledge, but requires special experience or special knowledge, then the opinions of witnesses skilled in that particular science, art, or trade to which the question relates are admissible in evidence."

Numerous cases are cited in support of this rule.  Just when a scientific [**4]   principle or discovery crosses the line between the experimental and demonstrable stages 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.

We think the systolic blood pressure deception test has 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.

The judgment is affirmed.

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Admissability of Scientific Evidence - Daubert v. Merrell Dow (1993)

The U.S. Supreme Court's opinion in Daubert v. Merrell Dow (1993) rejected the Frye  test and Frye-plus tests for the admissibility of certain scientific evidence (see admissibility tests lecture).  Instead of "general acceptance" in the scientific community, the Daubert test requires an independent judicial assessment of reliability.  Among other purposes, the Daubert test is intended to end the current "battle of the experts" state of affairs. The Daubert decision involved the claim that Bendectin caused birth defects, and even though it was intended to clear the way for admitting novel scientific evidence (like DNA), it has instead turned out to be a firestorm of controversy.

The misuse of scientific evidence is a serious problem. Even the FBI laboratory is under suspicion. In West Virginia, a serologist falsified test results in hundreds of cases over a ten-year period, sentencing hundreds of defendants to lengthy prison terms. In Texas, a pathologist faked autopsy results, resulting in as many as 20 death penalty verdicts. A police chemist elsewhere falsified reports and sent hundreds of innocent people away to jail on rape charges. Most misuse of scientific evidence is pro-prosecution. Daubert sheds light on shoddy procedures, protocols, and proficiency testing.

This document attempts to understand the Daubert test in light of continuing battles over forensic techniques and procedures. The Daubert ruling rests on an interpretation of the Federal Rules of Evidence. As a statutory, rather than constitutional case, it is not necessarily binding on the states, but many courts of appeals are ordering remands or whole new hearings because the trial court failed to conduct a Daubert hearing, and there is frequent variation from state to state in how Daubert hearings are conducted.

The fact is that Frye still remains the rule in many states. Other states have adopted Daubert, and yet other states have a history of rejecting Frye  and Daubert, substituting their own standards. The following table contains a summary:

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States accepting Daubert:	States sticking with Frye:	States with their own tests, or typically a Frye-plus test.
Connecticut Indiana Kentucky Louisiana Massachusetts Missouri New Mexico Oklahoma South Dakota Texas West Virginia	Alaska Arizona California Colorado Florida Illinois Kansas Maryland Michigan Nebraska New York Pennsylvania Washington	Arkansas Delaware Georgia Iowa Military Minnesota Montana North Carolina Oregon Utah Vermont Wyoming

Of course, all this is subject to change, but was fairly accurate as of 2004, and I continue to get emails from people updating my information. States in the third category, like North Carolina, express a variety of standards, but generally use a balancing test approach, balancing relevancy or materiality with prejudicial effect which, in North Carolina, has been noted as "consistent with Daubert" (see State v. Goode, 341 N.C. 513, 461 S.E.2d 631 (1995)).

THE REASONING BEHIND DAUBERT

JUDICIAL NOTICE: The theoretical foundations behind many sciences are so firmly established as scientific laws that they are more properly the subject of judicial notice; the judge should be able to make a determination.

ADMINISTRATIVE LAW: Some techniques and procedures have such an extensive precedent in administrative law as to be part of official manual/standard operating procedure for agencies; it is wide-ranging precedent. CERTIFICATION: Scientific fields that have been generally accepted by professional forensic associations are proliferating, forensic this and forensic that; there must be some underlying reliability standards.

CODIFICATION: Daubert may provide the impetus to amend Fed. Rule 702 and its state counterparts which have created a variety of tests such as the "modified Frye Rule", the "Frye Plus Rule", the "objectively verifiable rule", and "three-prong rules".

Let's look at some common statements of FRYE and DAUBERT.

Interpretation of Frye:	Interpretation of Daubert:
Where novel scientific evidence is at issue, the Frye inquiry allows the judiciary to defer to scientific expertise precisely as to whether or not it has gained "general acceptance" in the relevant field. The trial court's gatekeeper role in this respect is conservative, thus helping to keep "pseudoscience" out of the courtroom.	General acceptance is an austere standard absent from and incompatible with the Rules of Evidence. "Scientific knowledge" must be derived from the scientific method supported by "good grounds&quot.in validating the expert's testimony, establishing a standard of "evidentiary reliability."

The Daubert ruling substitutes a reliability test for a relevancy test.For states that follow neither Frye nor Daubert, this means that the continued practice of using reliability as a weight once relevancy has been established exposes a serious constitutional liability.

  WHAT ARE THE RELIABILITY FACTORS IN DAUBERT.

All trial courts make a preliminary determination of admissibility. This job involves a preliminary assessment of whether the evidence is relevant, competent, and material. In short, can the evidence be properly applied to the facts in this case? This is the traditional "gatekeeping" function of courts. A number of reliability factors can enter into this and subsequent hearings using the Daubert  standard.

• Has the scientific theory or technique been empirically tested? According to K. Popper (1989) in The Growth of Scientific Knowledge, "the criterion on the scientific status of a theory is its falsifiability, refutability, and testability."
  
• Has the scientific theory or technique been subjected to peer review and publication? This ensures that flaws in the methodology would have been detected and that the technique is finding its way into use via the literature. 
• What is the known or potential error rate? Every scientific idea has Type I and Type II error rates, and these can be estimated with a fair amount of precision. There are known threats to validity and reliability in any tests (experimental and quasi-experimental) of a theory.
  
• What is the expert's qualifications and stature in the scientific community? And does the technique rely upon the special skills and equipment of one expert, or can it be replicated by other experts elsewhere? 
• Can the technique and its results be explained with sufficient clarity and simplicity so that the court and the jury can understand its plain meaning? This is just the Marx standard, which is assumed to be incorporated in Daubert as it was with Frye.
  

SOME EXAMPLES OF DAUBERT APPLIED TO SPECIFIC TECHNIQUES:
(Note this is not a complete list, and is not accurate for ALL jurisdictions.

BALLISTICS generally FAILS the Daubert  standard despite widespread acceptance.

BATTERED WOMAN SYNDROME has satisfied the Daubert standard in some jurisdictions, but fails in most.

CHILD ABUSE ACCOMMODATION SYNDROME has FAILED the test, for the most part.

COMPUTER SIMULATION has failed because experts often can't explain the algorithms.

DNA evidence is admissible under either the Frye or Daubert standard, but the reliability issue goes beyond the matter of testimony to the proper performance of protocols and probability estimates.

EYEWITNESS IDENTIFICATION generally FAILS the Daubert test, for the most part, as most social science, like social psychology, does.

FORENSIC ANTHROPOLOGY has not yet met the Daubert test, but the study of certain features from bones remains reliable.

HAIR ANALYSIS. Daubert has been successfully applied to Spectrophotometer and Gas Chromatographic tests for detecting the past use of drugs.

HYPNOSIS has known therapeutic value, but not as a method of producing accurate recollection of past events, as it would be used in court. Hypnosis, therefore, does not meet the Daubert test.

INTOXILYZER TESTS have been ruled valid and are considered beyond scientific dispute by many judges.

POLYGRAPH evidence (which was usually acceptable under Frye with a few exceptions) is beginning to be found reliable in Daubert hearings, but still does not enjoy widespread acceptance, and is, in fact, outlawed by per se laws in various jurisdictions.

PSYCHIATRIC evidence has had mixed results under Daubert. Techniques such as use of penile plethysmography to measure sexual arousal have had problems getting admitted in some states, but have faced no problems in other states. Also having difficulty is psychological or sociopsychological profiling which is often attacked for its lack of logical foundation and/or weak methodology. Checklist techniques, such as those used to determine if someone is a pedophile or a psychopath (e.g., an Axis disorder on the DSM IV) are even experiencing difficulties. However, testimony regarding mental disorders that go to the matter of mens rea  generally satisfies the Daubert test as does much diminished capacity testimony and the more proven variety of syndromes.

QUESTIONED DOCUMENTS (or Expert Handwriting Analysis) has been ruled by many judges as not requiring the Daubert test because scientific principles have nothing to do with the day to day tasks as performed by practicing QDEs. However, some newer types of analysis are experiencing difficulties.

SOCIAL SCIENCE evidence, such as the use of regression analysis to show evidence of racial bias or estimates of damage, often requires the addition of proof from the field of epidemiology and some demonstration of mastery at econometrics, but "naked" statistical evidence has often been admitted anyway by some judges.

TRACE EVIDENCE COMPARISON has not yet been decided due to controversy over the qualifications required for a forensic scientist or lab technician as a microanalyst.

VOICE COMPARISON techniques have FAILED the Daubert test, for the most part.

  INTERNET RESOURCES

Blog 702

Daubert on the Web

Daubert Tracker from MDEX Online

RAND Report on Admitting Scientific Evidence

PRINTED RESOURCES

Berger, M. (2000). "The Supreme Court's Trilogy on the Admissibility of Expert Evidence," Reference Manual on Scientific Evidence. Washington D.C.: Federal Judicial Center.

Dixon, L. & Gill, B. (2002). Changes in the Standards for Admitting Expert Evidence in Federal Civil Cases Since the Daubert Decision. Santa Monica: CA: RAND.

Giannelli, P. (1994). "Daubert: Interpreting the Federal Rules of Evidence." Cardoza Law Review 15: 1999-2026.

Golan, T. (2004). Laws of Men and Laws of Nature: The History of Scientific Expert Testimony in England and America. Cambridge, MA: Harvard Univ. Press.

Huber, P. (1993). Galileo's Revenge: Junk Science in the Courtroom. NY: Basic Books.

Jasanoff, S. (1997). Science at the Bar: Science and Technology in American Law. Cambridge, MA: Harvard Univ. Press.

Kiely, T. (2005). Forensic Evidence: Science & The Criminal Law, 2e. Boca Raton, FL: CRC Press.

Lubet, S. (1999). Expert Testimony. NY: National Institute for Trial Advocacy.

Spiegel, M. (1994). Admissibility of expert testimony: Daubert and Beyond. Washington D.C.: ABA Section on Litigation.

Wecht, C. & Rago, J. (Eds.) (2005). Forensic Science and Law. Boca Raton, FL: CRC Press.

  Last updated: 02/05/06

Lecture List for JUS 425

MegaLinks in Criminal Justice

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Expert Discovery Provisions in Rule 26, Federal Rules of Civil Procedure

The following is the text of the parts of Rule 26, Federal Rules of Civil Procedure, which deal directly with expert discovery, in civil actions:

Rule 26. General Provisions Governing Discovery; Duty of Disclosure

(a) Required Disclosures; Methods to Discover Additional Matter.

* * *

(2) Disclosure of Expert Testimony.

(A) In addition to the disclosures required by paragraph (1), a party shall disclose to other parties the identity of any person who may be used at trial to present evidence under Rules 702, 703, or 705 of the Federal Rules of Evidence.

(B) Except as otherwise stipulated or directed by the court, this disclosure shall, with respect to a witness who is retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony, be accompanied by a written report prepared and signed by the witness. The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.

(C) These disclosures shall be made at the times and in the sequence directed by the court. In the absence of other directions from the court or stipulation by the parties, the disclosures shall be made at least 90 days before the trial date or the date the case is to be ready for trial or, if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under paragraph (2)(B), within 30 days after the disclosure made by the other party. The parties shall supplement these disclosures when required under subdivision (e)(1).

* * *

(b) Discovery Scope and Limits. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:

* * *

(4) Trial Preparation: Experts.

(A) A party may depose any person who has been identified as an expert whose opinions may be presented at trial. If a report from the expert is required under subdivision (a)(2)(B), the deposition shall not be conducted until after the report is provided.

(B) A party may, through interrogatories or by deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Rule 35(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.

(C) Unless manifest injustice would result, (i) the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under this subdivision; and (ii) with respect to discovery obtained under subdivision (b)(4)(B) of this rule the court shall require the party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert.

* * *

[End of Expert Discovery Provisions of FRCP 26]

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Liability for the Psychiatrist Expert Witness

Download Liability For Expert Witness (pdf)

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Frye v. United States

The following is the appellate opinion in Frye v. United States which was affirmed by the Court of Appeals, District of Columbia in 1923. Until the Daubert v. Merrill Dow US Supreme Court decision in 1993 and the Daubert standard for expert testimony replaced the Kelly/Frye standard in Federal matters (Frye still remains the standard for expert testimony in many states) Frye was the standard in state and federal courts for 70 years.

Download Frye_v. US 1923.pdf

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William Daubert v. Merrill Dow

The following is the appellate opinion in Frye v. United States which was affirmed by the Court of Appeals, District of Columbia in 1923. Until the Daubert v. Merrill Dow US Supreme Court decision in 1993 and the Daubert standard for expert testimony replaced the Kelly/Frye standard in Federal matters (Frye still remains the standard for expert testimony in many states) Frye was the standard in state and federal courts for 70 years.

Download William_Daubert113_S_Ct_2786.pdf

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Proximate Cause

Forensic psychiatrists and all testifying physicians are expected to offer opinioins in civil matters to the standard of "reasonable medical certainty" (or "reasonable medical probability" in California). However, the legal definition of causation (proximate cause) and the notion of causation from the perspective of behavioral science is not the same and sometimes it actually diverges This article attempts to explain the differences, explicate the dilemma and point out some of the pitfalls into which a medical expert may fall when testifying about legal causation.

Download proximate_causation.pdf

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