What Are the Real-World Impacts of the Daubert Test?

By Sheeva Azma

I was lucky enough to attend a virtual, two-day conference on science and the courts for free, thanks to my National Association for Science Writers membership. The conference happened in-person in DC, but I was able to attend remotely for free without paying the $200+ registration fee. Pretty awesome! I only attended the first day, but it was exciting and packed with information all the same.

I’ve already recapped the first two sessions here and here, both on the impact of the Daubert test, which deals with scientific evidence being admitted to courts. Below is my recap of the third session I attended that day – a panel discussion that was also about Daubert! If you want to read all my recaps, you can find them here.

In 1993, the Supreme Court’s decision in Daubert v. Dow Pharmaceuticals, Inc. redefined the rules for scientific evidence in the courts. Daubert was intended to make scientific evidence admitted in courts more reliable and trustworthy – but has it? In a panel called “The (Un)Intended Impacts of the Daubert Standard,” panelists Ronald J. Allen, John Henry Wigmore Professor of Law at Northwestern University, and Andrew Jurs, Clemens J. Smith Faculty Research Scholar at Drake University participated in a discussion led by moderator Dr. Howard Henderson, Director, Center for Justice Research, Texas Southern University.

The moderator summed up the entire discussion at the end of it when he stated: “If Daubert was a human being and we could talk to it, it would be much easier, right? The assumption is that there are no unintended consequences but…there are.” Keep reading for a more detailed recap of the panel discussion.

Getting the Facts Right in Trials

Prof. Allen is an expert when it comes to expert testimonies; he is one of the most highly-cited evidence scholars out there. He kicked off the discussion by talking about trials as a solution to solve “tricky” and “substantive” issues. Allen surprised me by saying that he found what the earlier speakers (which I have recapped here and here) had to say puzzling, because if one believes that people can not deliberate rationally, then it’s “nuts” to resolve disputes in this fashion. In his opinion, the problem is created by the legal system, so it should be resolved by it.

“Trials are pedagogical events,” Allen stated, meaning that trials involve educating fact-finders. In the case of trials, the fact-finders are juries and judges. “Small groups have enormous cognitive capacities,” he says. Sure, fact-finders are not experts, and the experts can often disagree. That’s what led to Daubert.

Calling out scientists for their place in helping Daubert work better, he said that scientists can do better to point out the limits of knowledge, or risk bringing the entire knowledge industry into “disrepute.” 

Why does this matter, he asked the audience? He answered his own question: because “every single conception of a right that you can come up with…is utterly, utterly dependent on facts. If you do not get the facts right, that right becomes meaningless.”

“Facts are as, if not more important than, rights,” Allen concluded.

Is Judicial Gatekeeping More Strict in the Daubert Era?

Prof. Jurs spoke next. He talked about Daubert’s impacts on judicial gatekeeping and access to courts. He has looked at the actual data from court cases on the ways that Daubert has changed judicial gatekeeping. His research shows that one can actually quantitatively measure the effect of Daubert on scientific reliability screening.

Prof. Jurs started out with a reminder that Daubert was intended to replace an older standard called Frye, which required “general acceptance” among the scientific community to admit expert evidence. Daubert doesn’t require general acceptance, only acceptance among scientific experts, making it a more flexible standard.

Is Daubert really helping make scientific evidence rules more just, though? That’s what Prof. Jurs wanted to know in his research. He conducted a series of three studies.

First, Prof. Jurs recounted the Supreme Court decision General Electric v. Joiner, which helped establish the context of Daubert post-Frye. A case on gatekeeping of scientific evidence, it found that Daubert allows district courts to admit a somewhat broader range of scientific testimony than Frye would have.

One way to determine whether Daubert is doing what it was intended to do is by looking at the actual cases and seeing if one can quantify the impact of Daubert. Prof. Jurs did just that in an empirical research study. He studied the “removal rate” of court cases. What is “removal,” exactly? It’s the power of defendants in some state civil suits to move the case to federal court. Recall that a civil court case has two sides: the defendant, and the plaintiff. The defendant is accused of a crime, and the plaintiff is the person accusing them of a crime.

Removal, in simple terms, is when a state court case goes to a federal court. It’s the defendant’s choice as to whether their case can be removed. However, not all state cases can be removed. There are specific circumstances in which a case can be removed. Civil defendants can move the case to the federal court within 30 days. If a case is removed, the federal court will apply state substantive law, but federal procedural law – in other words, Daubert. If you have a state court that uses the Frye standard, then remove to a federal court, which uses the Daubert standard, then you will change the actual scientific evidence standard. For the record, there are not many states that use Frye anymore, but they still exist.

Prof. Jurs asked the question: would defendants opt for their case to be removed more often if the Daubert test is more strict than the Frye standard?

He came up with a hypothesis: if the Daubert standard is more strict than Frye, then there might be more removals. In his study, Prof Jurs’ logic was that defendants in civil cases would remove their cases so that the other side, the plaintiff, would have to hold their experts to a more strict standard.

Prof. Jurs then conducted three studies to figure out the answer to this thought experiment. In his first study, he looked at what happened to civil cases in states where Frye was the standard for scientific expert testimony. He looked to the actual data on case removals to answer this question – 3.5 million cases between 1990 and 2000. He found that the results matched his hypothesis. He also found that the benefit to civil defendants goes away if the state adopted Daubert after 1993. When states adopt Daubert as their own standard, the removal rate goes down again! The takeaway here is that civil defendants believe Daubert is a stricter standard, so they seek to use it. Prof. Jurs did not talk too much about the specific reasons the case got removed, only that defendants use the option of removing their case as a way to subject the plaintiffs to a higher evidentiary standard.

Civil defendants believe Daubert is a stricter standard, Dr. Jurs said, so he conducted a second study that analyzed Daubert’s effect on civil plaintiffs. Because removal is a defendant’s decision, they looked at the initial filing decision in federal versus state court. He measured the ratio of federal to state filings – also known as the filing ratio. If there are more cases initially filed in the state court, he said, this means that the defendants want a lower standard for their experts. Indeed, his research found reduced filings for plaintiffs in federal court. The filing ratio decreased after 1993; Fewer defendants wanted to file in the federal courts initially.

In his last study, Prof. Jurs wanted to look at the filing rate in predominantly African-American communities. He hypothesized that these communities would have lowered federal filings since Daubert is more strict.

In his last study. Prof. Jurs combined the federal and state data he used in his first two studies, and added census data. He wanted to look at counties where there was a higher percentage of Black residents, and ask the question: how did their filing rate differ compared to White defendants? Comparing the filing rate between Black and White defendants, he found disparate impact. After the federal courts adopted Daubert, counties with a higher percentage of Black residents were less likely to file in court. The results confirmed his hypothesis.

In sum, Daubert did not relax the standard. He is currently looking into poverty as a variable in these results in his current research; the census data he used was not discriminating enough to deal with non-poverty economic differences.

These studies are the first of hopefully many studies on the impact of the Daubert standard. In an empirical study, he says, you are limited by the data available.

Finding Solutions to Daubert Issues

The moderator concluded with a question: are there any solutions to these issues?

Prof. Allen suggested not to try cases if you don’t think the person deciding the cases can understand the case. He suggested a different mechanism in that situation, like trying to get legislation passed through Congress – as is what happened with asbestos. We keep searching for a procedural solution in the legal system, Prof. Allen stated, when it’s really a knowledge-based one. “We should start talking about [this] problem,” he said.

Prof. Allen added: don’t try to turn the judge into an expert, but help them understand the nature of the problem and help them understand it. The judges in criminal cases are afraid of the compulsory process clause with respect to admitting evidence – so they will admit just about everything defendants have admitted. The dog case discussed earlier in the session – read my recap here – was a good example.

Learn More about Science Evidence in the Courts

If you want to read my blog recaps of the other sessions I attended at this conference, check them out here. Watch this session or all of the conference sessions on YouTube.