Judicial Decision Making About Expert Testimony in the Aftermath of Daubert and Kumho

Abstract

ABSTRACT The Supreme Court's decision in Daubert clarified the standards for the admissibility of expert evidence. Judges were called upon to evaluate the reliability of expert evidence, particularly the reliability of scientific evidence. The Court's decision in Kumho extended the reliability evaluation to nonscientific evidence. In the aftermath of these decisions, it was unclear how courts would evaluate expert reliability and whether these decisions would reduce the number of experts admitted to testify. This research investigated the effects of these decisions on expert testimony admissibility by coding appellate court opinions. Analyses revealed that there was little change in the rates of admission of expert testimony in appellate courts. Consistent with Daubert, the Federal Rules of Evidence were the most influential in judges' decision making about expert testimony. Appellate courts appear to be evaluating the reliability of expert testimony as part of their admission decisions under the Rules, but they are not generally doing so by applying the Daubert factors. A summary of the results are presented, with some brief implications for practice.