Chapter 23
John MacArthur is the pastor-teacher of Grace Community Church in Sun Valley, California, as well as an author, conference speaker, president of The Master's University and Seminary, and featured teacher with the Grace to You media ministry. In 1969, after graduating from Talbot Theological Seminary, John came to Grace Community Church. Expert Commentary Series - Ignoring Context and a Lack of Common Sense - Antivaccinationists Absurdly Misusing Dr. Paul Offit's 'each infant would have the theoretical capacity to respond to about 10,000 vaccine.pdf download. 1 B The early months of Jesus' public ministry: from Cana to Cana (2:1-4:54) 1 C Water into Wine: the first Sign at Cana in Galilee (2:1-11) 2 C To Capernaum (2:12) 3 C To Jerusalem: the first Passover (2:13-3:36) 1 D Jesus' cleansing of the Temple (2:13-22) 2 D A Public Response to Jesus: Trust without Trustworthiness (2:23-25) BIBLIOGRAPHY.
Many of David's psalms are full of complaints, but this is full of comforts, and the expressions of delight in God's great goodness and dependence upon him. It is a psalm which has been sung by good Christians, and will be while the world stands, with a great deal of pleasure and satisfaction. I. The psalmist here claims relation to God, as his shepherd (v. 1). II. He recounts his experience of the kind things God had done for him as his shepherd (v. 2, v. 3, v. 5). III. Hence he infers that he should want no good (v. 1), that he needed to fear no evil (v. 4), that God would never leave nor forsake him in a way of mercy; and therefore he resolves never to leave nor forsake God in a way of duty (v. 6). In this he had certainly an eye, not only to the blessings of God's providence, which made his outward condition prosperous, but to the communications of God's grace, received by a lively faith, and returned in a warm devotion, which filled his soul with joy unspeakable. And, as in the foregoing psalm he represented Christ dying for his sheep, so here he represents Christians receiving the benefit of all the care and tenderness of that great and good shepherd.A psalm of David.From three very comfortable premises David, in this psalm, draws three very comfortable conclusions, and teaches us to do so too. We are saved by hope, and that hope will not make us ashamed, because it is well grounded. It is the duty of Christians to encourage themselves in the Lord their God; and we are here directed to take that encouragement both from the relation wherein he stands to us and from the experience we have had of his goodness according to that relation.I. From God's being his shepherd he infers that he shall not want anything that is good for him, v. 1. See here, 1. The great care that God takes of believers. He is their shepherd, and they may call him so. Time was when David was himself a shepherd; he was taken from following the ewes great with young (Ps. 78:70, Ps. 78:71 ), and so he knew by experience the cares and tender affections of a good shepherd towards his flock. He remembered what need they had of a shepherd, and what a kindness it was to them to have one that was skilful and faithful; he once ventured his life to rescue a lamb. By this therefore he illustrates God's care of his people; and to this our Saviour seems to refer when he says, I am the shepherd of the sheep; the good shepherd,Jn. 10:11 . He that is the shepherd of Israel, of the whole church in general (Ps. 80:1 ), is the shepherd of every particular believer; the meanest is not below his cognizance, Isa. 40:11 . He takes them into his fold, and then takes care of them, protects them, and provides for them, with more care and constancy than a shepherd can, that makes it his business to keep the flock. If God be as a shepherd to us, we must be as sheep, inoffensive, meek, and quiet, silent before the shearers, nay, and before the butcher too, useful and sociable; we must know the shepherd's voice, and follow him. 2. The great confidence which believers have in God: 'If the Lord is my shepherd, my feeder, I may conclude I shall not want any thing that is really necessary and good for me.'' If David penned this psalm before his coming to the crown, though destined to it, he had as much reason to fear wanting as any man. Once he sent his men a begging for him to Nabal, and another time went himself a begging to Ahimelech; and yet, when he considers that God is his shepherd, he can boldly say, I shall not want. Let not those fear starving that are at God's finding and have him for their feeder. More is implied than is expressed, not only, I shall not want, but, 'I shall be supplied with whatever I need; and, if I have not every thing I desire, I may conclude it is either not fit for me or not good for me or I shall have it in due time.''II. From his performing the office of a good shepherd to him he infers that he needs not fear any evil in the greatest dangers and difficulties he could be in, v. 2-4. He experiences the benefit of God's presence with him and care of him now, and therefore expects the benefit of them when he most needs it. See here,1. The comforts of a living saint. God is his shepherd and his God—a God all-sufficient to all intents and purposes. David found him so, and so have we. See the happiness of the saints as the sheep of God's pasture. (1.) They are well placed, well laid: He maketh me to lie down in green pastures. We have the supports and comforts of this life from God's good hand, our daily bread from him as our Father. The greatest abundance is but a dry pasture to a wicked man, who relishes that only in it which pleases the senses; but to a godly man, who tastes the goodness of God in all his enjoyments, and by faith relishes that, though he has but little of the world, it is a green pasture, Ps. 37:16 ; Prov. 15:16, Prov. 15:17 . God's ordinances are the green pastures in which food is provided for all believers; the word of life is the nourishment of the new man. It is milk for babes, pasture for sheep, never barren, never eaten bare, never parched, but always a green pasture for faith to feed in. God makes his saints to lie down; he gives them quiet and contentment in their own minds, what ever their lot is; their souls dwell at ease in him, and that makes every pasture green. Are we blessed with the green pastures of the ordinances? Let us not think it enough to pass through them, but let us lie down in them, abide in them; this is my rest for ever. It is by a constancy of the means of grace that the soul is fed. (2.) They are well guided, well led. The shepherd of Israel guides Joseph like a flock; and every believer is under the same guidance: He leadeth me beside the still waters. Those that feed on God's goodness must follow his direction; he leads them by his providence, by his word, by his Spirit, disposes of their affairs for the best, according to his counsel, disposes their affections and actions according to his command, directs their eye, their way, and their heart, into his love. The still waters by which he leads them yield them, not only a pleasant prospect, but many a cooling draught, many a reviving cordial, when they are thirsty and weary. God provides for his people not only food and rest, but refreshment also and pleasure. The consolations of God, the joys of the Holy Ghost, are these still waters, by which the saints are led, streams which flow from the fountain of living waters and make glad the city of our God. God leads his people, not to the standing waters which corrupt and gather filth, not to the troubled sea, nor to the rapid rolling floods, but to the silent purling waters; for the still but running waters agree best with those spirits that flow out towards God and yet do it silently. The divine guidance they are under is stripped of its metaphor (v. 3): He leadeth me in the paths of righteousness, in the way of my duty; in that he instructs me by his word and directs me by conscience and providence. These are the paths in which all the saints desire to be led and kept, and never to turn aside out of them. And those only are led by the still waters of comfort that walk in the paths of righteousness. The way of duty is the truly pleasant way. It is the work of righteousness that is peace. In these paths we cannot walk unless God both lead us into them and lead us in them. (3.) They are well helped when any thing ails them: He restoreth my soul. [1.] 'He restores me when I wander.'' No creature will lose itself sooner than a sheep, so apt is it to go astray, and then so unapt to find the way back. The best saints are sensible of their proneness to go astray like lost sheep (Ps. 119:176 ); they miss their way, and turn aside into by-paths; but when God shows them their error, gives them repentance, and brings them back to their duty again, he restores the soul; and, if he did not do so, they would wander endlessly and be undone. When, after one sin, David's heart smote him, and, after another, Nathan was sent to tell him, Thou art the man, God restored his soul. Though God may suffer his people to fall into sin, he will not suffer them to lie still in it. [2.] 'He recovers me when I am sick, and revives me when I am faint, and so restores the soul which was ready to depart.'' He is the Lord our God that heals us, Ex. 15:26 . Many a time we should have fainted unless we had believed; and it was the good shepherd that kept us from fainting.2. See here the courage of a dying saint (v. 4): 'Having had such experience of God's goodness to me all my days, in six troubles and in seven, I will never distrust him, no, not in the last extremity; the rather because all he has done for me hitherto was not for any merit or desert of mine, but purely for his name's sake, in pursuance of his word, in performance of his promise, and for the glory of his own attributes and relations to his people. That name therefore shall still be my strong tower, and shall assure me that he who has led me, and fed me, all my life long, will not leave me at last.'' Here is,(1.) Imminent danger supposed: 'Though I walk through the valley of the shadow of death, that is, though I am in peril of death, though in the midst of dangers, deep as a valley, dark as a shadow, and dreadful as death itself,'' or rather, 'though I am under the arrests of death, have received the sentence of death within myself, and have all the reason in the world to look upon myself as a dying man, yet I am easy.'' Those that are sick, those that are old, have reason to look upon themselves as in the valley of the shadow of death. Here is one word indeed which sounds terrible; it is death, which we must all count upon; there is no discharge in that war. But, even in the supposition of the distress, there are four words which lessen the terror:—It is death indeed that is before us; but, [1.] It is but the shadow of death; there is no substantial evil in it; the shadow of a serpent will not sting nor the shadow of a sword kill. [2.] It is the valley of the shadow, deep indeed, and dark, and dirty; but the valleys are fruitful, and so is death itself fruitful of comforts to God's people. [3.] It is but a walk in this valley, a gentle pleasant walk. The wicked are chased out of the world, and their souls are required; but the saints take a walk to another world as cheerfully as they take their leave of this. [4.] It is a walk through it; they shall not be lost in this valley, but get safely to the mountain of spices on the other side of it.(2.) This danger made light of, and triumphed over, upon good grounds. Death is a king of terrors, but not to the sheep of Christ; they tremble at it no more than sheep do that are appointed for the slaughter. 'Even in the valley of the shadow of death I will fear no evil. None of these things move me.'' Note, A child of God may meet the messengers of death, and receive its summons with a holy security and serenity of mind. The sucking child may play upon the hole of this asp; and the weaned child, that, through grace, is weaned from this world, may put his hand upon this cockatrice's den, bidding a holy defiance to death, as Paul, O death! where is thy sting? And there is ground enough for this confidence, [1.] Because there is no evil in it to a child of God; death cannot separate us from the love of God, and therefore it can do us no real harm; it kills the body, but cannot touch the soul. Why should it be dreadful when there is nothing in it hurtful? [2.] Because the saints have God's gracious presence with them in their dying moments; he is then at their right hand, and therefore why should they be moved? The good shepherd will not only conduct, but convoy, his sheep through the valley, where they are in danger of being set upon by the beasts of prey, the ravening wolves; he will not only convoy them, but comfort then when they most need comfort. His presence shall comfort them: Thou art with me. His word and Spirit shall comfort them—his rod and staff, alluding to the shepherd's crook, or the rod under which the sheep passed when they were counted (Lev. 27:32 ), or the staff with which the shepherds drove away the dogs that would scatter or worry the sheep. It is a comfort to the saints, when they come to die, that God takes cognizance of them (he knows those that are his), that he will rebuke the enemy, that he will guide them with his rod and sustain them with his staff. The gospel is called the rod of Christ's strength (Ps. 110:2 ), and there is enough in that to comfort the saints when they come to die, and underneath them are the everlasting arms. III. From the good gifts of God's bounty to him now he infers the constancy and perpetuity of his mercy, v. 5, v. 6. Here we may observe,1. How highly he magnifies God's gracious vouchsafements to him (v. 5): 'Thou preparest a table before me; thou hast provided for me all things pertaining both to life and godliness, all things requisite both for body and soul, for time and eternity:'' such a bountiful benefactor is God to all his people; and it becomes them abundantly to utter his great goodness, as David here, who acknowledges, (1.) That he had food convenient, a table spread, a cup filled, meat for his hunger, drink for his thirst. (2.) That he had it carefully and readily provided for him. His table was not spread with any thing that came next to hand, but prepared, and prepared before him. (3.) That he was not stinted, was not straitened, but had abundance: 'My cup runs over, enough for myself and my friends too.'' (4.) That he had not only for necessity, but for ornament and delight: Thou anointest my head with oil. Samuel anointed him king, which was a certain pledge of further favor; but this is rather an instance of the plenty with which God had blessed him, or an allusion to the extraordinary entertainment of special friends, whose heads they anointed with oil, Lu. 7:46 . Nay, some think he still looks upon himself as a sheep, but such a one as the poor man's ewe-lamb (2 Sa. 12:3 ), that did eat of his own meat, and drank of his own cup, and lay in his bosom; not only thus nobly, but thus tenderly, are the children of God looked after. Plentiful provision is made for their bodies, for their souls, for the life that now is and for that which is to come. If Providence do not bestow upon us thus plentifully for our natural life, it is our own fault if it be not made up to us in spiritual blessings.2. How confidently he counts upon the continuance of God's favours, v. 6. He had said (v. 1), I shall not want; but now he speaks more positively, more comprehensively: Surely goodness and mercy shall follow me all the days of my life. His hope rises, and his faith is strengthened, by being exercised. Observe, (1.) What he promises himself—goodness and mercy, all the streams of mercy flowing from the fountain, pardoning mercy, protecting mercy, sustaining mercy, supplying mercy. (2.) The manner of the conveyance of it: It shall follow me, as the water out of the rock followed the camp of Israel through the wilderness; it shall follow into all places and all conditions, shall be always ready. (3.) The continuance of it: It shall follow me all my life long, even to the last; for whom God loves he loves to the end. (4.) The constancy of it: All the days of my life, as duly as the day comes; it shall be new every morning (Lam. 3:22, Lam. 3:23 ) like the manna that was given to the Israelites daily. (5.) The certainty of it: Surely it shall. It is as sure as the promise of the God of truth can make it; and we know whom we have believed. (6.) Here is a prospect of the perfection of bliss in the future state. So some take the latter clause: 'Goodness and mercy having followed me all the days of my life on this earth, when that is ended I shall remove to a better world, to dwell in the house of the Lord for ever, in our Father's house above, where there are many mansions. With what I have I am pleased much; with what I hope for I am pleased more.'' All this, and heaven too! Then we serve a good Master.3. How resolutely he determines to cleave to God and to his duty. We read the last clause as David's covenant with God: 'I will dwell in the house of the Lord for ever (as long as I live), and I will praise him while I have any being.'' We must dwell in his house as servants, that desired to have their ears bored to the door-post, to serve him for ever. If God's goodness to us be like the morning light, which shines more and more to the perfect day, let not ours to him be like the morning cloud and the early dew that passeth away. Those that would be satisfied with the fatness of God's house must keep close to the duties of it.In United States federal law, the Daubert standard is a rule of evidence regarding the admissibility of expert witnesstestimony. A party may raise a Daubert motion, a special motion in limine raised before or during trial, to exclude the presentation of unqualified evidence to the jury. The Daubert trilogy are the three United States Supreme Court cases that articulated the Daubert standard:
- Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993), which held that Rule 702 of the Federal Rules of Evidence did not incorporate the Frye standard as a basis for assessing the admissibility of scientific expert testimony, but that the rule incorporated a flexible reliability standard instead;
- General Electric Co. v. Joiner (1997),[1] which held that a district court judge may exclude expert testimony when there are gaps between the evidence relied on by an expert and that person's conclusion, and that an abuse-of-discretion standard of review is the proper standard for appellate courts to use in reviewing a trial court's decision of whether it should admit expert testimony;
- Kumho Tire Co. v. Carmichael (1999),[2] which held that the judge's gatekeeping function identified in Daubert applies to all expert testimony, including that which is non-scientific.
Important appellate-level opinions that clarify the standard include Judge Kozinski's opinion in Daubert on remand (Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311 (9th Cir. 1995)), and Judge Becker's opinion in In re Paoli R.R. Yard PCB Litig., 35 F.3d 717 (3d Cir. 1994).
2 To The 4th Power
Definition[edit]
In Daubert, seven members of the Court agreed on the following guidelines for admitting scientific expert testimony:
- Judge is gatekeeper: Under Rule 702 of the Federal Rules of Evidence, the task of 'gatekeeping', or assuring that scientific expert testimony truly proceeds from 'scientific knowledge', rests on the trial judge.
- Relevance and reliability: This requires the trial judge to ensure that the expert's testimony is 'relevant to the task at hand' and that it rests 'on a reliable foundation'. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 584-587. Concerns about expert testimony cannot be simply referred to the jury as a question of weight. Furthermore, the admissibility of expert testimony is governed by Rule 104(a), not Rule 104(b); thus, the Judge must find it more likely than not that the expert's methods are reliable and reliably applied to the facts at hand.
- Scientific knowledge = scientific method/methodology: A conclusion will qualify as scientific knowledge if the proponent can demonstrate that it is the product of sound 'scientific methodology' derived from the scientific method.[3]
- Illustrative factors: The Court defined 'scientific methodology' as the process of formulating hypotheses and then conducting experiments to prove or falsify the hypothesis, and provided a set of illustrative factors (i.e., not a 'test') in determining whether these criteria are met:
Important appellate-level opinions that clarify the standard include Judge Kozinski's opinion in Daubert on remand (Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311 (9th Cir. 1995)), and Judge Becker's opinion in In re Paoli R.R. Yard PCB Litig., 35 F.3d 717 (3d Cir. 1994).
2 To The 4th Power
Definition[edit]
In Daubert, seven members of the Court agreed on the following guidelines for admitting scientific expert testimony:
- Judge is gatekeeper: Under Rule 702 of the Federal Rules of Evidence, the task of 'gatekeeping', or assuring that scientific expert testimony truly proceeds from 'scientific knowledge', rests on the trial judge.
- Relevance and reliability: This requires the trial judge to ensure that the expert's testimony is 'relevant to the task at hand' and that it rests 'on a reliable foundation'. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 584-587. Concerns about expert testimony cannot be simply referred to the jury as a question of weight. Furthermore, the admissibility of expert testimony is governed by Rule 104(a), not Rule 104(b); thus, the Judge must find it more likely than not that the expert's methods are reliable and reliably applied to the facts at hand.
- Scientific knowledge = scientific method/methodology: A conclusion will qualify as scientific knowledge if the proponent can demonstrate that it is the product of sound 'scientific methodology' derived from the scientific method.[3]
- Illustrative factors: The Court defined 'scientific methodology' as the process of formulating hypotheses and then conducting experiments to prove or falsify the hypothesis, and provided a set of illustrative factors (i.e., not a 'test') in determining whether these criteria are met:
- Whether the theory or technique employed by the expert is generally accepted in the scientific community;
- Whether it has been subjected to peer review and publication;
- Whether it can be and has been tested;
- Whether it has a known error rate; and
- Whether the research was conducted independent of the particular litigation or dependent on an intention to provide the proposed testimony.[4]
In 2000, Rule 702 was amended in an attempt to codify and structure elements embodied in the 'Daubert trilogy.' The amended rule then read as follows:
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.
(As amended Apr. 17, 2000, eff. Dec. 1, 2000.)
In 2011, Rule 702 was again amended to make the language more clear. The rule now reads:
RULE 702. TESTIMONY BY EXPERT WITNESSES
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) The expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) The testimony is based on sufficient facts or data;
(c) The testimony is the product of reliable principles and methods; and
(d) The expert has reliably applied the principles and methods to the facts of the case.
(As amended Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 26, 2011, eff. Dec. 1, 2011)
While some federal courts still rely on pre-2000 opinions in determining the scope of Daubert, as a technical legal matter, any earlier judicial rulings that conflict with the language of amended Rule 702 are no longer good precedent.
Use[edit]
Although the Daubert standard is now the law in federal court and over half of the states, the Frye standard remains the law in some jurisdictions including California, Illinois, Pennsylvania, and Washington.[5]
Florida passed a bill to adopt the Daubert standard as the law governing expert witness testimony, which took effect on July 1, 2013.[6] On May 23, 2019, the Florida Supreme Court accepted the Daubert standard.[7][8] On August 28, 2020, The Maryland Court of Appeals adopted the Daubert standard.[9]
Although trial judges have always had the authority to exclude inappropriate testimony, prior to Daubert, trial courts often preferred to let juries hear evidence proffered by both sides.[10] Once certain evidence has been excluded by a Daubert motion because it fails to meet the relevancy and reliability standard, it will likely be challenged when introduced again in another trial. Even though a Daubert motion is not binding to other courts of law, if something was found untrustworthy by one court, other judges may choose to follow that precedent. Of course, a decision by an appellate court that a piece of evidence is inadmissible under Daubert would be binding on district courts within that court's jurisdiction.[citation needed]
Daubert motion: timing[edit]
To attack expert testimony as inadmissible, counsel may bring pretrial motions, including motions in limine.[11] The motion in limine may be brought prior to trial, although counsel may bring the motion during trial as well.[12]
A motion attacking expert testimony should be brought within a reasonable time after the close of discovery if the grounds for the objection can be reasonably anticipated.[13] The hearing should be made well in advance of the first time a case appears on a trial calendar.
In one case where a Daubert hearing was conducted on the day of the trial, in which the district court excluded all plaintiff's expert testimony, resulting in the dismissal of all claims, the appellate court remanded the case because of multiple irregularities and a defective record of lower court proceedings.[14]
The appellate court noted that in cases that rely heavily on expert testimony, a district court should set a discovery[15] and trial schedule that realistically provides both sides with an adequate opportunity to introduce necessary evidence. The application of Federal Rule of Evidence 702 to proposed expert testimony can often be an uncertain process, and is best conducted in such a manner that litigants have a reasonable opportunity to locate experts who meet the rule's requirements.
In another case in which the defendant was apparently at fault for filing a motion to exclude expert testimony one week before the trial date, the district court denied the motion on that ground, but it advised the defendant that it might conduct its own voir dire of the expert in question before he testified. The district court preliminarily found that defendant's motion was predicated on a ruling made almost three months earlier by a district court in another state, and that defendant had shown no good cause for waiting to file the motion. The defendant ultimately lost that case, following the admission of the disputed expert testimony, and ultimately failed in its appeal.[16]
An evidentiary hearing on the motion may not be necessary if the court finds that it would not assist the court in ruling on any of the matters in the motion.
History[edit]
Prior to Daubert, relevancy in combination with the Frye test were the dominant standards for determining the admissibility of scientific evidence in Federal courts. Frye is based on a 1923 Federal Court of appeals ruling involving the admissibility of polygraph evidence.[17] Under Frye, the Court based the admissibility of testimony regarding novel scientific evidence on whether it has 'gained general acceptance in the particular field in which it belongs.' The trial court's gatekeeper role in this respect is typically described as conservative, thus helping to keep pseudoscience out of the courtroom by deferring to those in the field.
In Daubert, the Supreme Court ruled that the 1923 Frye test was superseded by the 1975 Federal Rules of Evidence, specifically Rule 702 governing expert testimony. Rule 702 originally stated (in its entirety),
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or 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.
In Daubert, the Court ruled that nothing in the Federal Rules of Evidence governing expert evidence 'gives any indication that 'general acceptance' is a necessary precondition to the admissibility of scientific evidence. Moreover, such a rigid standard would be at odds with the Rules' liberal thrust and their general approach of relaxing the traditional barriers to 'opinion' testimony.'
By requiring experts to provide relevant opinions grounded in reliable methodology, proponents of Daubert were satisfied that these standards would result in a fair and rational resolution of the scientific and technological issues which lie at the heart of product liability adjudication.[18]
Daubert has not appeared to further the Federal Rules philosophy of admitting generally all relevant testimony, and specifically of relaxing the traditional barriers to 'opinion' testimony.' The Daubert decision has instead been heralded by some political commentators as one of the most important Supreme Court decisions in imposing higher barriers for toxic tort and product liability cases, by allegedly reducing the volume of so-called junk science in the court room.
According to a 2002 RAND study, post Daubert, the percentage of expert testimony by scientists that was excluded from the courtroom significantly rose. This rise likely contributed to a doubling in successful motions for summary judgment in which 90% were against plaintiffs.[19] Beyond this study, there is little empirical evidence of the impact of Daubert.However, some critics argue that Daubert has disrupted the balance between plaintiffs and defendants, 'The exclusion of expert testimony affects plaintiffs far more than defendants because plaintiffs may then not be able to meet their required burden of proof. Furthermore, there is little point in plaintiffs going to the expense of Daubert motions to exclude defendant's experts until they know if their case will proceed. So if more experts are now being excluded, then Daubert has undoubtedly shifted the balance between plaintiffs and defendants and made it more difficult for plaintiffs to litigate successfully.'[10] Similarly, Daubert hearings can be subject to various abuses by attorneys attempting to bolster a weak case. These tactics can range from simply attempting to delay the case to driving up the costs of the litigation forcing settlement.[20]
A different pattern has emerged in criminal cases. In criminal cases, the prosecution has the burden of proof and uses a host of forensic science methods as evidence to prove their case; but Daubert motions are rarely made by criminal defendants and when they do, they lose a majority of the challenges.[21][22] Some critics of the use of unreliable science in court argue that Daubert has had beneficial effects in civil litigation, but fails to address the underlying pathologies of the forensic science system that leads to dubious verdicts in criminal cases.[23]
Some commentators believe that Daubert caused judges to become—in the phrase used in former Chief Justice William Rehnquist's dissent in Daubert—amateur scientists, many lacking the scientific literacy to effectively fulfill their role as gatekeeper of scientific evidence.[24] Although 'science for judges' forums have emerged in the wake of Daubert in order to educate judges in a variety of scientific fields, many are still skeptical about the usefulness of the Daubert standard in discerning valid science.[25][26][27] The responsibility to assess scientific relevance has shifted from highly trained expert witnesses to judges deficient in science education. The 'Daubert' ruling furthermore admits the possible introduction of non-peer reviewed data and conclusions. This increasingly shifts the burden of scientific judgement onto judges who have not had an education which would enable them to properly evaluate such data.[28]
Tuneskit audio capture 2 1 0 230. Pursuant to Rule 104(a), in Daubert Web confidential 5 0 45. the U.S. Supreme Court suggested that the following factors be considered:[29]
- Has the technique been tested in actual field conditions (and not just in a laboratory)?
- Has the technique been subject to peer review and publication?
- What is the known or potential rate of error?
- Do standards exist for the control of the technique's operation?
- Has the technique been generally accepted within the relevant scientific community?
The Supreme Court explicitly cautioned that the Daubert list should not be regarded by judges as 'a definitive checklist or test..' Yet in practice, judges have judged the admissibility of scientific evidence using the 'Daubert factors' as a checklist; for example, the trial court judge in Kumho admitted to erroneously treating the factors as mandatory.[10]
Pronunciation of Daubert[edit]
Reportedly, Daubert and his family do not use the French pronunciation, which would be similar to 'dough-bear' /doʊˈbɛər/. Rather, they pronounce their family name in the same manner as Dow-Burt/ˈdaʊbərt/. See Pronunciation_of_Daubert.
International influence[edit]
The Canadian Supreme Court expressly discussed the Daubert standard in R. v. J.-L.J., [2000].[30] In J.-L.J., the Court took a look at the development of U.S. law in this regard, noting the U.S. Supreme Court's rejection of the Frye standard and its replacement with the Daubert Standard. While the SCC did note that: 'Daubert must be read in light of the specific text of the Federal Rules of Evidence, which differs from our own procedures,' the Court also stated in the same sentence that 'the U.S. Supreme Court did list a number of factors that could be helpful in evaluating the soundness of novel science.'[31] The SCC then incorporated elements from the Daubert standard in their decision regarding the Quebec Court of Appeal ruling while ultimately rejecting the lower court's decision and reinstating the defendant's conviction.
Additionally, in 2005, the United Kingdom House of CommonsScience and Technology Committee recommended the creation of a Forensic Science Advisory Council to regulate forensic evidence in the UK and observed that:
The absence of an agreed protocol for the validation of scientific techniques prior to their being admitted in court is entirely unsatisfactory. Judges are not well-placed to determine scientific validity without input from scientists. We recommend that one of the first tasks of the Forensic Science Advisory Council be to develop a 'gate-keeping' test for expert evidence. This should be done in partnership with judges, scientists and other key players in the criminal justice system, and should build on the US Daubert test.[32]
The Law Commission for England and Wales has proposed a consultation paper (No.190) to adopt a criterion like the Daubert Standard to help reform the law of evidence in regards to the admissibility of scientific evidence.[33]
See also[edit]
References[edit]
- ^522 U.S. 136 (1997)
- ^526 U.S. 137 (1999)
- ^Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579, 589.
- ^Daubert v. Merrell Dow Pharmaceuticals, Inc. 43 F.3d 1311 (9th Cir. 1995)
- ^Giannelli & E. Imwinkelried, Scientific Evidence §§ 1.06, 1.16 (4th ed. 2007).
- ^Reuters
- ^https://www.law.com/dailybusinessreview/2019/05/23/daubert-evidence-standard-takes-immediate-effect-in-florida-after-high-court-turnaround/
- ^
- ^https://www.mdcourts.gov/data/opinions/coa/2020/47a19.pdf
- ^ abcBerger, Margaret A. (2005). 'What Has a Decade of Daubert Wrought'. American Journal of Public Health. 95(S1): S59–65. doi:10.2105/AJPH.2004.044701. hdl:10.2105/AJPH.2004.044701. PMID16030340.
- ^The third circuit has emphasized the importance of conducting in limine hearings under Fed. R. Evid. 104 (resolution of preliminary questions) when making reliability determinations required by Fed. R. Evid. 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). SeePadillas v. Stork-Gamco, Inc., 186 F.3d 412, 417 (3d Cir. 1999); Voilas v. General Motors Corp., 73 F. Supp. 2d 452, 455 (D.N.J. 1999) (not holding hearing in this case, however). See also 1 Weinstein's Federal Evidence, Ch. 104, Preliminary Questions (Matthew Bender 2d ed.); Edward J. Imwinkelried & David A. Schlueter, Federal Evidence Tactics, Ch. 1, Article I: General Provisions, § 1.04 (Matthew Bender).
- ^See, e.g., Smoot v. Mazda Motors of America, Inc., 469 F.3d 675, 676 (7th Cir. 2006) (case dismissed after plaintiff expert's testimony excluded); Curtis v. M&S Petroleum, Inc., 174 F.3d 661, 667 (5th Cir. 1999); United States v. Nichols, 169 F.3d 1255, 1265-1266 (10th Cir. 1999 ); Heller v. Shaw Indus., Inc., 167 F.3d 146, 155, 157-158 (3d Cir. 1999); Ruiz-Troche v. Pepsi Cola of Puerto Rico, 161 F.3d 77, 90 (1st Cir. 1998); Jack v. Glaxo Wellcome Inc., 239 F. Supp. 2d 1308, 1319 (D. Ga. 2002) (rejecting objection of untimeliness of motion in limine to exclude expert testimony on ground that motion in limine is not dispositive); United States v. Lester, 234 F. Supp. 2d 595, 597-598 (E.D. Va. 2002) (criminal defendant's motion to allow expert testimony regarding reliability of eyewitness testimony denied); Lentz v. Mason, 32 F. Supp. 2d 733, 737 (D.N.J. 1999).
- ^See, e.g., Pineda v. Ford Motor Co., 520 F.3d 237, 241-242 (3d Cir. 2008) (after deposition of plaintiff's expert, defendant filed alternative motions to exclude testimony of plaintiff's expert and for summary judgment, and motion for Daubert hearing).
- ^Webster v. Fulton County, Ga., 85 F. Supp. 2d 1375, 1377 (N.D. Ga. 2000) (denying defendant's Daubert motion as untimely, when brought after court had relied on plaintiff expert's report in denying defense summary judgment motion, and within days of trial date). See also Alfred v. Caterpillar, Inc., 262 F.3d 1083, 1087 (10th Cir. 2001 ) (counsel should not sandbag Daubert concerns until close of opponent's case; however, appellate court did not reach issue of late filing of motion because district court chose to address defendant's Daubert objections on merits, rather than deeming them waived); Pullman v. Land O'Lakes, Inc., 262 F.3d 759, 763 (8th Cir. 2001) (appellate court noted with disapproval that defendant failed to bring Daubert motion until shortly before the trial began; Daubert inapplicable to experimental test evidence not presented by expert witnesses).
- ^See Smith v. Ford Motor Co., 215 F.3d 713, 722 (7th Cir. 2000) . See also Goebel v. Denver and Rio Grande W. R.R., 215 F.3d 1083, 1087 (10th Cir. 2000) (district court orally denied motion to exclude expert testimony on morning of trial); McPike v. Corghi S.p.A., 87 F. Supp. 2d 890, 891 n.1 (E.D. Ark. 1999) (court telephoned attorneys with ruling denying defendant's motion to exclude plaintiff's expert testimony, because closeness of trial did not allow time for formal written memo and order at that time; court later rendered substituted memorandum and order, fully stating reasons for its decision in writing).
- ^See Clay v. Ford Motor Co., 215 F.3d 663, 674 (6th Cir. 2000)
- ^Frye v. United States, 293 F. 1013 (DC Cir. 1923)
- ^Owen, D. G. (2002). 'A Decade of Daubert'. Denver University Law Review. 80: 345. ISSN0883-9409.
- ^Dixon, Lloyd and Brian Gill, Changes in the Standards for Admitting Expert Evidence in Federal Civil Cases Since the Daubert Decision. Santa Monica, CA: RAND Corporation, 2001. https://www.rand.org/pubs/monograph_reports/MR1439.html.
- ^Gutheil, Thomas G.; Bursztajn, Harold J. (1 June 2005). 'Attorney Abuses of Daubert Hearings: Junk Science, Junk Law, or Just Plain Obstruction?'. Journal of the American Academy of Psychiatry and the Law. 33 (2): 150–152. PMID15985655.
- ^Risinger, D. Michael (2000). 'Navigating Expert Reliability: Are Criminal Standards of Certainty Being Left on the Dock?'. Albany Law Review. 64: 99. ISSN0002-4678.
- ^Neufeld, P. (2005). 'The (Near) Irrelevance of Daubert to Criminal Justice and Some Suggestions for Reform'. American Journal of Public Health. 95 (S1): S107–S113. doi:10.2105/AJPH.2004.056333. PMID16030325. S2CID45496524.
- ^Bernstein, David E. (2007). 'Expert Witnesses, Adversarial Bias, and the (Partial) Failure of the Daubert Revolution'. Iowa Law Review. SSRN963461.
- ^Gatowski, S. I.; et al. (2001). 'Asking the gatekeepers: A National Survey of Judges on Judging Expert Evidence in a Post-Daubert world'. Law and Human Behavior. 25 (5): 433–458. doi:10.1023/A:1012899030937. PMID11688367.
- ^Rothman, K. J.; Greenland, S. (2005). 'Causation and Causal Inference in Epidemiology'. American Journal of Public Health. 95 (S1): S144–S150. doi:10.2105/AJPH.2004.059204. hdl:10.2105/AJPH.2004.059204. PMID16030331.
- ^Melnick, R. (2005). 'A Daubert Motion: A Legal Strategy to Exclude Essential Scientific Evidence in Toxic Tort Litigation'. American Journal of Public Health. 95 (S1): S30–S34. doi:10.2105/AJPH.2004.046250. PMID16030335.
- ^Jasanoff, S. (2005). 'Law's Knowledge: Science for Justice in Legal Settings'. American Journal of Public Health. 95 (S1): S49–S58. doi:10.2105/AJPH.2004.045732. hdl:10.2105/AJPH.2004.045732. PMID16030338.
- ^Tancredi, Laurence R & Giannini, A. James (December 1994). 'The admissibility of scientific evidence in psychiatric malpractice: junk science and the Daubert case'. J Clin Forensic Med. 1 (3): 145–8. doi:10.1016/1353-1131(94)90082-5. PMID16371283.
- ^See (c) of the syllabus of the Daubert case.
- ^R. v. J.-L.J., 2 SCR 600 (Supreme Court of Canada 2000).
- ^Id.
- ^House of Commons Science and Technology Committee (2005) Forensic Science on Trial, London: The Stationery Office Limited, HC96-I, para.173
- ^The Admissiblity of Expert Evidence in Criminal Proceedings in England and WalesArchived 2009-12-12 at the UK Government Web Archive (PDF)
External links[edit]
Pdf Expert 2 4 23 Commentary Online
- Project on Scientific Knowledge and Public Policy (SKAPP), collection of original documents and commentary on the Daubert standard and the use of science in public policy.
- Barry Yeoman Putting Science in the Dock, The Nation
- Bernstein, David (1 February 2007). 'Expert Witnesses, Adversarial Bias, and the (Partial) Failure of the Daubert Revolution'. Iowa Law Review. George Mason Law & Economics Research Paper No. 07-11, 2008. George Mason University School of Law. 93 (451). SSRN963461.
Date posted: 15 February 2007; Last revised: 28 November 2011
- Eric Helland, 'The Role of Ideology in Judicial Evaluations of Experts,' The Journal of Law and Economics 62, no. 4 (November 2019): 579-611.