Judicial Gatekeeping Research Articles

Revisiting Daubert: Judicial Gatekeeping and Expert Ethics in Court

Revisiting Daubert: Judicial Gatekeeping and Expert Ethics in Court

The exclusion of prison informant evidence for unreliability in New Zealand

Prison informant or ‘jailhouse snitch’ evidence is a notoriously unreliable category of evidence. In light of reliability concerns, the New Zealand Supreme Court has adopted a progressive approach to the exclusion of prison informant evidence, centred on greater use of general exclusionary provisions as a threshold of reliability for the admission of suspect evidence. In so doing, the court has shifted the emphasis from deference to the jury as arbiter of ultimate reliability and towards more robust judicial gatekeeping as a safeguard against false testimony. This article critically analyses the New Zealand approach, including by way of comparison with Canada, Australia and England and Wales. The New Zealand approach is presented as a principled and important example of adapting fundamental evidentiary principles and provisions in line with emerging social science evidence. However, in light of the general concerns surrounding this class of evidence, ultimately further safeguards are still needed

Judicial gatekeeping on scientific validity with risk assessment tools.

Risk assessment tools driven by algorithms offer promising advantages in predicting the recidivism risk of defendants. Jurisdictions are increasingly relying upon risk tool outcomes to help judges at sentencing with their decisions on whether to incarcerate or whether to use community-based sanctions. Yet as sentencing has significant consequences for public safety and individual rights, care must be taken that the tools relied upon are appropriate for the task. Judges are encouraged to act as gatekeepers to evaluate whether the forensic risk assessment tool offered has a sufficient level of validity in that it is fit for the purposes of sentencing, provides an acceptable level of accuracy in its predictions, and achieves an adequate standard of reliability with regard to its outcomes.

An Overview of the Role of Traditional Institutions in Nigeria

he British officials in Nigeria mounted and imposed rules and laws through the traditional rulers who only served as mediators between the people and the British officials. Though, the cultures and traditions of the Nigerian citizens were cherished and reserved by the British government in order to accept and welcome them by the citizens of the country. However, this system worked out well because of the support of the traditional rulers who claimed that since their cultures and traditions were not interfered with, they have no problem with the British authorities (Teslim, 2019).
 Before traditional rulers are attached with some important functions among which are contributing to development administration, linkage or "brokering" between grassroots and capital, extension of national identity through the conferral of traditional titles, low-level conflict resolution and judicial gate-keeping, ombudsmanship and institutional safety- valve for overloaded and sub-apportioned bureaucracies. In addition to the above roles, traditional rulers are meant to create educated chieftaincies meaningfully improves the success of traditional rulers (Miles, 1993). Furthermore, traditional rulers serve as another institute of conflict resolution in any nation where the state legal system is weakening to fully provide the judicial requirements of the country (Zeleke, 2011).
 A study by Isaac (2018) disclosed that in the olden days, traditional institutions are the administrative organizations in Nigeria. These establishments are entrenched in the history, cultures, and the traditions of several ethnic groups and cultural background. He further explained that traditional institutions plays an important role in the managerial process before, during, and after colonial rules, these institutions have contributed to the history of the nation. The role of traditional organizations was important and highly respected during these periods.

An Overview of the Role of Traditional Institutions in Nigeria

An Overview of the Role of Traditional Institutions in Nigeria

Danger at the Edge of Chaos: Predicting Violent Behavior in a Post-Daubert World

This interdisciplinary article explores the boundaries of predicting violence in the context of capital sentencing decisions. Currently, experts are permitted to proffer opinions in death sentencing proceedings that have little grounding in science, without any examination of the scientific validity of their assertions. They are permitted to do so because, despite being widely castigated as wholly unscientific by the scientific community, predictions of future dangerousness were found to be constitutionally admissible in Barefoot v. Estelle. Standards for evaluating expert testimony have changed considerably since Barefoot, however. The Supreme Court, through its Daubert line of cases, has caused a paradigm shift in the evaluation of scientific evidence in both state and federal courts. The kind of unscientific predictions proffered in Barefoot continue nonetheless to be routinely admitted in sentencing proceedings without any judicial gatekeeping efforts. The tension between the scientific scrutiny required for admissibility even in civil cases (where money damages are at stake) and the unscientific predictions freely admissible in capital sentencing determinations (where the issue is death) is, at best, troubling. This article explores the validity of dangerousness predictions in light of the latest scientific research about brain structure and function. It also discusses the development of actuarial instruments to assess risk, and compares three predominant actuarial instruments. Based on criteria scientists themselves use to assess validity, as well as the Supreme Court's requirements in Daubert, Joiner, and Kumho Tire, this article outlines a framework for sound analysis of scientific evidence regarding predictions of future violence. Drawing on insights from brain science as well as complexity theory and empirical studies of jury decisionmaking, this article concludes that although actuarial instruments should be used with caution, they offer improvements over the unaided judgment of juries and over the kind of unscientific assertions about future dangerousness currently typical in capital sentencing proceedings. This is an important and timely issue, because the consequences of misleading the jury in a death sentencing determination are severe, not only for the defendant, but for a society that values justice and aspires to rationality.

Deceptively Simple: Framing, Intuition and Judicial Gatekeeping of Forensic Feature-Comparison Methods Evidence

For many decades, prosecutors have relied on feature-comparison methods (FCM) of forensic science evidence, including hair, fingerprints, toolmarks, handwriting, and bitemarks. Since the late 1980s, scholars and practitioners have raised serious questions about the reliability and error rates of such evidence. Two national bodies have published serious criticism of FCM evidence: the 2009 Committee of the National Research Council of the National Academy of Sciences; and the 2016 President’s Council of Advisors on Science and Technology. Despite these concerns and proof from the Innocence Project data that poor quality forensic science evidence has been a substantial component in wrongful convictions, courts continue to admit FCM evidence routinely and with little analysis, generally avoiding application of the Daubert factors related to reliability. This article questions why courts are unreceptive to challenges about the reliability of such evidence and suggests that judges perceive feature-comparison evidence as fairly straightforward and intuitively accurate. As such, courts often unknowingly rely upon heuristic approaches to the evidence — that is, cognitive shortcuts to manage complexity. By using these shortcuts, rather than rigorously evaluating reliability, decisions may inadvertently incorporate cognitive biases, including belief perseverance, confirmation bias, and assumptions of simplicity. If judges can appreciate that feature-comparison “matching” is a complex, multifaceted procedure, they might become more willing to engage in a deeper, science-based review of the evidence and better understand its shortcomings and limitations.

Gender, expert advice, and judicial gatekeeping in the United States

This article investigates the role of gender in decision-making by examining trial judges' decisions to admit or exclude expert witness testimony. An analysis of civil rights cases in United States district courts (n = 198) reveals that male judges are substantially more likely than females to exclude expert evidence. Importantly, this pattern cannot be attributed to other characteristics of judges, experts, or courts that may influence judges’ rulings. These findings are consistent with theories of gender, organizations, and science that suggest that women are more likely than men to consider expert advice. These results also indicate that the organizational role of trial judge may not be enough to offset the wider effects of the gender system on perceptions of experts.

Is the Expert Admissibility Game Fixed?: Judicial Gatekeeping of Fire and Arson Evidence

Anecdotal evidence claims that in criminal cases, trial judges admit the prosecution's expert witnesses more readily than the defendants', and in civil cases the reverse is true; judges exclude plaintiffs' experts more often than civil defendants' experts. This occurs despite the fact that, with few exceptions, the same rules of admissibility apply to all parties and, in most jurisdictions, across criminal and civil cases. This article empirically tests this differential by reviewing judicial decisions to admit or exclude evidence holding the type of expert testimony constant, fire and arson evidence, across criminal and civil cases in the United States. The study examines the admissibility of fire and arson investigation experts in criminal and civil cases across all legal parties in fifty‐seven federal and state opinions in the United States. The findings offer empirical support of a bias in criminal cases and in civil cases which present expert witnesses at trial, and is less pronounced, but still evident, on appeal. Specifically, the role of the party that offers the evidence has a profound effect on whether arson evidence is admitted, even when factors around the judge's political affiliation, attorney experience, expert qualifications, and rules of evidence are taken into account.

Daubert Debunked: A History of Legal Retrogression and the Need to Redefine 'Science' in Law

With ‘novel’ scientific discoveries accelerating at an unrelenting pace, the need for accessible and implementable standards for evaluating the legal admissibility of scientific evidence becomes more and more crucial. As science changes, legal standards for evaluating ‘novel’ science must be plastic enough to respond to fast-moving changes. This, ostensibly, was the Daubert objective. Since it was decided in 1993, however, Daubert’s impact has been hotly contested – with plaintiffs and defendants each claiming the decision unfairly favors the other side. New approaches are constantly suggested to deal with the perceived impact, although there is no uniform consensus of exactly what that impact is. Without accurate and demonstrable evidence of Daubert’s effect, however, the current ad hoc approach of suggesting new gatekeeping methods – is at best blind, and at worst, a partisan attempt to manipulate judicial decision-making.This article reports on a retrospective review of data regarding the impact of Daubert on admissibility of scientific evidence, for the first time – via a simple statistical perspective. This method confirms other assessments (using different methodologies) that (allowing for short-term corrections post-Daubert), there is no difference in outcome whether Frye or Daubert tests are used. Given that entirely different standards were used in both cases – yet yield similar results – one must acknowledge the possibility that both tests are ‘scientifically’ flawed. Further, empirical evidence and academic research agree that judges now substitute their own mechanisms for evaluating scientific evidence, in some cases applying neither Daubert nor the pre-existing Frye test. The reasons are unclear – perhaps due to an instinctual aversion to the muddied or flawed standards enunciated in both. Nevertheless, it does appear that judges are uncomfortable understanding several Daubert tests, including the ‘falsification’ criterion, which is the foundation stone of the Daubert analysis. Via re-analysis of the Rand study of 2001 which examined effects of Daubert, this research further highlights the scientific/mathematical illiteracy of the current legal community (especially, as I demonstrate, compared to judges pre-Frye). This situation presents a major obstacle for devising a workable method for judicial gatekeeping of scientific evidence. Ultimately, however, lawyers and scientists must first agree what ‘science’ is before better methods of evaluating proffered evidence can be devised. It is suggested that lawyers turn to scientists who developed the scientific method as it applies to the science of the courtroom: biology, chemistry and simple physics to enlighten themselves – substituting these approaches for the flawed and faulty premises advocated by Daubert and Frye.

Judicial gatekeeping and the social construction of the admissibility of expert testimony

Content analysis of 192 U.S. District Court cases was conducted to investigate judges' evaluations of expert characteristics and evidence characteristics for toxicology, psychological/psychiatric, and damages testimony. Judges evaluated more expert characteristics, but not more evidence characteristics, as the number of months post-Daubert increased (Hypotheses 1 and 2). More evidence characteristics were evaluated when evidence was quantitatively rather than qualitatively based (Hypothesis 3). The greatest number of evidence characteristics examined was for toxicology evidence (Hypothesis 4). Fewer expert characteristics were evaluated for admissible evidence, but more evidence characteristics were evaluated for inadmissible evidence (Hypothesis 5). All analyses were significant at .05. Implications for judges, attorneys, and experts are discussed.

EXPERT EVIDENCE AFTERDAUBERT

▪ Abstract Daubert stands for a trilogy of Supreme Court cases as well as revisions of the Federal Rules of Evidence. Together they represent American law's most recent effort to filter expert evidence offered at trial. This review begins by placing the Daubert trilogy in the context of earlier judicial efforts to solve the screening problem, which began well before the twentieth century, and then provides a brief explication of evidence law under Daubert. Next, we discuss several aspects of the jurisprudence of expert evidence: its connection to debates in the philosophy of science, the practical legal problems courts are trying to solve, and procedural implications. Then we review and discuss varied impacts of Daubert: changes in law, marked increases in cases and scholarship relating to expert evidence, and research examining judicial gatekeeping under Daubert (civil defendants appear to benefit greatly and criminal defendants hardly at all). We conclude by offering several predictions and prescriptions for the future of expert evidence.

Daubert and the Exclusionary Ethos: The Convergence of Corporate and Judicial Attitudes towards the Admissibility of Expert Evidence in Tort Litigation*

The article traces the way admissibility jurisprudence following Daubert has come to emphasize the importance of strict judicial gatekeeping; making it more difficult for plaintiffs to succeed in tort and product liability litigation. This exclusionary ethos appears to have been shaped by a range of values and interests which appear closely aligned to the perspectives promoted by corporate‐sponsored proponents of tort and evidence reform. The effects of the exclusionary ethos are explored through an example of judicial gatekeeping in recent mobile telephone litigation and a review of judicial surveys of post‐Daubert attitudes toward expert evidence. The role of corporate‐sponsored amicus briefs in the influential Supreme Court Kumho Tire Co. Ltd. v Carmichael appeal, extra‐legal mobilization by conservative think tanks in litigation around electric and magnetic fields (EMF), and a qualitative citation analysis of federal court judgments, are then used in a preliminary attempt to trace the influence of corporate lobbying and social problem rhetorics on judicial attitudes and practice.

Why Judges Applying the Daubert Trilogy Need to Know About the Social, Institutional and Rhetorical - and Not Just the Methodological - Aspects of Science

In response to the claim that many judges are deficient in their understanding of scientific methodology, we identify in recent cases (i) a pragmatic perspective on the part of federal appellate judges when they reverse trial judges who tend to idealize science (i.e., who do not appreciate the local and practical goals and limitations of science), and (ii) an educational model of judicial gatekeeping that results in reversal of trial judges who defer to the social authority of science (i.e., who mistake authority for reliability). Next, we observe that courts (in the cases we analyze) are not interested in pragmatically constructing legal science, but rather attempt to ensure that science itself, conceived pragmatically (i.e., without idealizing science), is appropriated in law. We conclude that trial judges who fail to appreciate the social, institutional, and rhetorical aspects of science tend to reject reliable - albeit pragmatic - science, to welcome unreliable - albeit authoritative - science, and thereby to create a body of legal science that is out of sync with mainstream science.

Daubert Readiness of Texas Judiciary: A Study of the Qualifications, Experience, and Capacity of the Members of the Texas Judiciary to Determine the Admissibility of Expert Testimony Under the Daubert, Kelly, Robinson, and Havner Tests

This article will look at the results of a survey conducted among Texas judges regarding their background, experience, training, and confidence in performing this gate-keeping function. First, it is important to review the history of judicial decision-making as it applies to the admissibility of expert testimony. What have been the legal guidelines for admissibility and how has the recent case law changed those legal standards? Second, what did the survey of Texas judges tell us about their education and perceived ability to perform the gate-keeping role? Finally, what future issues does the judicial gate-keeping rule raise for experts, lawyers, and the judiciary itself?

Risk Characterization and the Weight of Evidence: Adapting Gatekeeping Concepts from the Courts

Risk characterization objectives include evaluating the weight of evidence underlying risk determinations, communicating that evaluation to nonexperts, guiding risk assessors to achieve consistency, and preserving deference for those reasonable expert judgments inherent in any risk determination. Similar objectives are shared by American courts that face the gatekeeping task of screening scientific evidence before it is presented to nonexpert factfinders, such as juries. This article surveys the judicial gatekeeping concepts of relevance, evidentiary reliability, legal sufficiency, presumptions, and standards of proof (particularly, preponderance of the evidence). It examines recent court decisions that have applied these concepts to the kinds of scientific information common in risk assessments, and suggests how to adapt these gatekeeping concepts for use in weight‐of‐evidence characterization. If we can develop and adopt a neutral framework for characterizing the weight of evidence underlying risk assessments, it might help clarify not only the current debate over risk characterization and risk management, but also the drafting of treaty provisions, such as those invoking the Precautionary Principle of international environmental law.

Where You Stand Depends on Who Sits: Platform Promises and Judicial Gatekeeping in the Federal District Courts

A burgeoning body of research has identified a persistent link between the politics of federal judicial appointments and patterns of judicial judgment. Moreover, appointment effects on district judges' substantive judgments have increased dramatically in tandem with equally dramatic increases in the politicization of judicial appointments during the Reagan administration. In this note, we shift the research focus from substantive judgments to procedural disputes over who has standing to sue in the federal trial courts. We find that, despite their platform-based commitment to "judicial restraint," Reagan appointees are much less likely than Nixon or Carter appointees to deny disputed standing to "upperdog" claimants. However, when the claimant is an "underdog" claiming standing to sue corporate or governmental defendants, Reagan appointees are twice as likely as Nixon appointees and four times as likely as Carter appointees to deny access. The Carter appointees, on the other hand, are twice as likely as the Nixon appointees and four times as likely as the Reagan appointees to grant disputed standing to underdog proponents of social regulation.

Role Perceptions and Behavior in Three U.S. Courts of Appeals

Previous articleNext article No AccessArticlesRole Perceptions and Behavior in Three U.S. Courts of AppealsJ. Woodford Howard, Jr.J. 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Policy Goals in Judicial Gatekeeping: A Proximity Model of Discretionary Jurisdiction

Policy Goals in Judicial Gatekeeping: A Proximity Model of Discretionary Jurisdiction