Federal Court (Forensic Evidence)

The Federal court system creates the standards, rules, and procedures for use by all of the lower courts in the nation. Four Federal Rules of Evidence are of particular significance in the world of forensic science .

Rule 702 involves testimony by experts. The pertinent text of the Rule states "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training , or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is sufficiently based upon reliable facts or data. (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case."

In 1993, a Supreme Court case entitled Daubert v. Merrell Dow Pharmaceuticals resulted in a ruling that when expert evidence based upon scientific knowledge is part of the evidentiary proceedings in a trial, and the testimony is questioned or challenged by the litigant, the judge is responsible for acting as a "gatekeeper" who must decide whether the expert testimony should be considered scientifically reliable or valid. The gatekeeping function extends to technical and other potential specialized knowledge as well as to scientific knowledge.

As a result of the Daubert decision, many of the lower courts had to examine whether the Daubert factors applied to decisions about the reliability of expert evidence need also be applied to expert witnesses who were not offering opinions based strictly on scientific principles, but on specialized or technical knowledge. The general consensus was that the Daubert rules should be applied to all expert opinion testimony.

The Daubert rules were extended and clarified in 1999 by another Supreme Court decision, Kumho Tire v. Carmichael, in which it was mandated that trial judges act as gatekeepers who must make certain that only reliable expert opinion evidence and testimony be admitted, and that this rule apply to all possible forms of expert testimony. The text of the Committee Note following that decision is as follows: "The specific factors explicated by the Daubert Court are: (1) whether the expert's technique or theory can be or has been tested—that is, whether the expert's theory can be challenged in some objective sense, or whether it is instead simply a subjective, conclusory approach that cannot reasonably be assessed for reliability; (2) whether the technique or theory has been subject to peer review and publication; (3) the known or potential rate of error of the technique or theory when applied; (4) the existence and maintenance of standards and controls; and (5) whether the technique or theory has been generally accepted in the scientific community."

As a result of the Kumho Tire decision, the Court publicly stressed that these factors might not necessarily be fully applicable to all forms of expert opinion testimony, that the factors were more on the order of guidelines than rigid requirements, and that there might be specific situations or circumstances in which lower courts might give equal consideration to other factors that might best permit assessment of reliability or validity of nonscientific expert opinion testimony offered during a trial.

Among the procedural conclusions of Daubert was an assertion that the judicial decision regarding reliability for admissibility of evidence lay in the principles and methodology of techniques rather than on the conclusions reached by applying them. In the 1997 case General Electric v. Joiner, the Court partially reversed that language, by stating that it is not always possible to separate conclusions from the methods by which they were reached.

In its current wording, Rule 702 directs trial courts to determine not only whether an expert's analytic methods are based upon sound and scientifically accepted principles, but whether the expert used those methods in a reliable and scientifically appropriate manner, in order to reach the conclusions stated in testimony regarding the disputed facts of the case.

The relevant portion of Rule 703, regarding bases of expert opinion testimony, states: "The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial impact."

In the original version of the Federal Rules of Evidence (1975), experts could base their opinions not only on facts brought into evidence, but also on facts not in evidence, and even on facts which would not under any circumstances be admissible as evidence, as long as the non-admitted or non-admissible facts were part of the aggregate body of knowledge that other experts in the same field of study would utilize in making professional judgments in situations not involving litigation. To clarify, the Federal Rules of Evidence sought to allow a subject area expert the latitude to use relevant and appropriate professional tools in order to render the most accurate and informed opinion possible, and to be able to communicate that decision to the participants of a particular proceeding in a court of law.

Rule 701 concerns opinion testimony given by lay witnesses. The significant portion states, "If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702."

Members of the general public, as non-expert witnesses, may offer their personal opinions as evidence in situations where they have very strong recollection of specific events. They may testify as to what they observed or perceived: "he appeared to be drunk and his clothing smelled of beer," or "she was driving a great deal faster than the 15 mile per hour speed limit in the school zone." This rule does not permit expert witnesses to offer their perceptions, thoughts, or opinions in the guise of lay testimony.

Finally, Federal Rule 706, in relevant part, states, "(a) Appointment. The court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection. An expert witness shall not be appointed by the court unless the witness consents to act. A witness so appointed shall be informed of the witness' duties by the court in writing, a copy of which shall be filed with clerk, or at a conference in which the parties shall have the opportunity to participate. A witness so appointed shall advise the parties of the witness' findings, if any; the witness' deposition may be taken by any party; and the witness may be called to testify by the court or any party. The witness shall be subject to cross-examination by each party, including a party calling the witness...(c) Disclosure of Appointment. In the exercise of its discretion, the court may authorize disclosure to the jury of the fact that the court appointed the expert witness."

Federal Rule 706 essentially states that the court has the discretion to appoint or to deny appointment to any expert witness agreed upon by both parties; it also has the right to select its own expert witnesses, as well as the right to inform the jury that it has done so. In theory, a court-appointed expert is truly objective, as he or she is not employed by either party, the court-appointed expert has no potential loyalty to anything other than an unbiased assessment of the facts at hand.

These Federal Rules of Evidence are of particular importance for the forensic scientist: they inform the way in which expert witnesses may be used, the means with which the term "expert" must be defined, the role of the general public as trial witnesses, and the impeachability of expert witness testimony based on who is the employer of the expert.

see also Ethical issues; Evidence; Expert witnesses; Frye standard; Pseudoscience and forensics.

FEDERAL RULES OF EVIDENCE

The Federal Rules of Evidence generally govern civil and criminal proceedings in the courts of the United States and proceedings before U.S.bankruptcyjudges and U.S. magistrates, to the extent and with the exceptions stated in the rules. Promulgated by the U.S. Supreme Court and amended by Congress from time to time, the Federal Rules of Evidence are considered legislative enactments that have the force of statute, and courts interpret them as they would any other statute, employing traditional tools of statutory construction in applying their provisions.

The rules are designed to secure fairness in judicial administration, to eliminate unjustifiable expense and delay, and to promote the growth and development of the law of evidence so that truth may be ascertained and proceedings justly resolved. Huff v. White Motor Corporation, 609 F.2d 286 (7th Cir. Ind. 1979). But the rules are not intended to result in an exhaustive search for a total and complete understanding of every civil and criminal case that comes before a federal court. Rather, the rules are meant to assist lawyer-adversaries and common sense triers-of-fact in resolving particularized legal disputes. Accordingly, the rules give courts authority to adapt the laws of evidence to circumstances as they arise.

The Federal Rules of Evidence were adopted by order of the Supreme Court on November 20, 1972, transmitted to Congress by Chief Justice warren e. burger on February 5, 1973, and became effective on July 1, 1973. In enacting these rules, the Supreme Court and Congress did not intend to wipe out years of common law development in the field of evidence. To the contrary, the Federal Rules of Evidence largely incorporate the judge-made, common law evidentiary rules in existence at the time of their adoption, and where the federal rules contain gaps or omissions, courts may answer unresolved questions by relying on common law precedent. Like their common law predecessors, the federal rules govern the overall admissibility of evidence, the limitations of relevant evidence, the definition of prejudicial and cumulative evidence, the admissibility of hearsay, lay and expert testimony, the nature of evidentiary presumptions, the grounds for authentication and identification of documentary evidence, and the scope of evidentiary privileges, like the work product, attorney-client, and doctor-patient privileges.

The Federal Rules of Evidence apply to (1) the U.S. district courts, including the federal district court in Washington, D.C.; (2) the federal district courts located in Puerto Rico, Guam, the Virgin Islands, and the Northern Mariana Islands; (3) the u.s. courts of appeals; (4) the U.S. Claims Court; (5) U.S. bankruptcy courts and U.S. magistrates. Although the rules do not specify whether they apply to the U.S Supreme Court, that Court has applied the rules as if they do. Pursuant to executive order, military courts-martial are required to apply rules of evidence that substantially conform to the Federal Rules of Evidence. Executive Order No. 12473. However, the Federal Rules of Evidence do not generally apply to administrative agencies.

The Federal Rules of Evidence apply to most civil actions, including admiralty and maritime cases, to most criminal proceedings, and to contempt proceedings, except contempt proceedings in which the court may act summarily. But the rules do not apply to criminal proceedings to issue an arrest warrant, a search warrant, or a summons, to preliminary examinations in criminal cases, such as hearings on motions to suppress evidence, to proceedings for extradition or rendition, to sentencing hearings, to probation hearings, or to hearings to set bail. FRE Rule 1101.

Nor do the Federal Rules of Evidence generally apply in grand jury proceedings. A grand jury may compel the production of evidence or the testimony of witnesses as the grand jury considers appropriate, and its operation generally is unrestrained by technical, procedural, and evidentiary rules governing the conduct of criminal trials. However, the rules governing privileges generally do apply at grand jury proceedings, and thus grand-jury witnesses may refuse to disclose information on the grounds that it is protected by attorney-client privilege, for example.

In some instances the Federal Rules of Evidence apply only to the extent that they have not been superseded by statute or other Supreme Court rules governing certain proceedings in particular areas of law. For example, the Federal Rules of Evidence do not fully apply to the trial of misdemeanors and other petty offenses before U.S. magistrates, to the review of orders by the Secretary of Agriculture under the Perishable Agricultural Commodities Act of 1930 (7U.S.C.A. 499f, 499g), to naturalization proceedings under the Immigration and Nationality Act (8 U.S.C.A. 1421-1429), to prize proceedings in admiralty under 10 U.S.C.A. sections 7651-7681, or to proceedings reviewing the orders of the Secretary of the Interior under 15 U.S.C.A 522.

In 1974, the National Conference of Commissioners on Uniform State Laws adopted the Uniform Rules of Evidence, which were designed to be identical to the Federal Rules of Evidence. Cases interpreting the Federal Rules of Evidence are helpful in the analysis of state rules that are based on the Federal Rules of Evidence. In fact, some jurisdictions have held that a rule of evidence patterned after a Federal Rule of Evidence should be construed in accordance with federal court decisions interpreting the federal rule. Thus, state courts in these jurisdictions will look at the federal rule's history and purposes in interpreting the provisions of an identical state rule of evidence. However, at least one state court has held that because rules of evidence, to the extent that they do not impinge upon U.S. constitutional guarantees, are a matter of state law, federal decisions interpreting the federal rules are not of controlling precedential significance. State v. Outlaw, 108 Wis.2d 112, 321N.W.2d 145 (Wis., Jul 02, 1982)

further readings

American Jurisprudence. 2002. St. Paul, Minn.: West.

Bocchino, Anthony J., and David A. Sonenshein. 2003. Federal Rules of Evidence with Objections. South Bend, Ind.: National Institute for Trial Advocacy.

Johnson, Lori A. 2003."Creating Rules of Procedure for Federal Courts: Administrative Prerogative or Legislative Policymaking." The Justice System Journal 24 (winter).

cross-references

Burger, Warren Earl; Grand Jury.

Federal Rules of Evidence

The Federal Rules of Evidence are broad principles promulgated by the United States Supreme Court governing the admissibility of any evidence in a criminal or civil trial. As such, they are applicable in trials in federal courts, although most state courts have adopted them as well. From the standpoint of forensic evidence, which is gathered, examined, and interpreted by specialists who are often called on to testify as expert witnesses , the key rule is Rule 702, Testimony by Experts: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training , or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case." A considerable body of case law applies this general principle to the facts of particular cases and defines standards for the admissibility of forensics evidence as interpreted by expert witnesses.

Historically, the courts relied on the Frye test, formulated by the Court in Frye v. United States in 1923. The case involved the admissibility of lie detector tests, at that time called "systolic blood pressure deception tests." This form of scientific evidence was then in its infancy and, at least according to the defendant, lacked what the Supreme Court would later call "sufficient facts or data" and "reliable principles and methods." The judge based his decision to admit the evidence on its "general acceptance in the particular field" (Frye, 293 F. at 1014). This was a key development, for it shifted the focus from the conclusions, even hunches, of a particular expert to an expertise recognized by other practitioners and gained from shared specialized training and experience. The Frye standard, however, had two principal problems: It failed to distinguish science from a pseudoscience such as astrology or, in the view of some legal experts, forensic science , and it rendered the court a passive observer, bound to accept expert testimony if it reflected "general acceptance in the particular field."

Accordingly, a new, more rigorous standard for the application of Rule 702 evolved from a 1993 case, Daubert v. Merrell Dow Pharmaceuticals, Inc. Under the Daubert standard, a trial judge can no longer defer to "general acceptance in the particular field" but must serve as a kind of gatekeeper by holding what are commonly called Daubert hearings, or pretrial hearings on the validity of the science in question using a five-pronged test: (1) whether the theory or technique can be and has been tested, (2) whether the theory or technique has been subjected to peer review and publication, (3) the known or potential rate of error, (4) the existence and maintenance of standards controlling the technique's operation, and (5) whether the theory or technique enjoys general acceptance within a relevant scientific community.

The relatively recent Daubert standard raised complex legal issues. Technically, it requires the courts to reexamine the validity and reliability of such forensics tools as polygraph testing, DNA testing, fingerprinting, handwriting analysis , fiber comparison, and the identification of firearms , bite marks, tire marks, and blood spatter patterns. Many of these are staples of forensic testimony, and some, such as fingerprint comparison, have a venerable century-old history, so the courts are reluctant to exclude them. Yet many observers, especially defense attorneys, contend that the research base that supports them is often inadequate, and they are increasingly launching attacks. In United States v. Havvard (2000), for example, the defense filed a motion to exclude the government's expert fingerprint witness, arguing that "there is no reliable statistical foundation for fingerprint comparisons and no reliable measure of error rates in latent print identification, especially in the absence of a specific standard about the number of points of identity needed to support an opinion as to identification" (Havvard, 117 F. Supp. 2d at 850–51).

While the Court denied the defendant's motion, this type of challenge became more frequent after 1993 as defense attorneys become more sophisticated in their ability to assess and challenge scientific evidence. In the case of fingerprinting, for example, they are challenging the belief that a print match proves that the prints came from the same person. Defense attorneys note that fingerprint experts do not compare latent prints directly to known prints, but rather take points of comparison and then estimate the likelihood that the two came from the same person. More practically, defense attorneys challenge the reliability of forensics evidence (error rates), noting the many opportunities for error as evidence is found, bagged, labeled, transported, removed from storage, handled, examined, and re-stored.

see also Evidence; Expert witnesses; Federal rules of evidence; Frye standard; U.S. Supreme Court (rulings on forensic evidence).