36 Pages Posted: 22 Oct 2010
Date Written: October 20, 2010
The recent surge in brain science research has roughly coincided with the courts’ development of a new approach to the admissibility of scientific evidence. This coincidence is serendipitous.
The prior approach to the admissibility of scientific testimony traced its origins to the 1923 Frye decision. Under Frye, to determine whether scientific testimony was admissible, the judge inquired whether the underlying technique was generally accepted. However, “general acceptance” is a poor proxy for reliability. To make matters worse, most Frye jurisdictions recognized a number of exemptions from the scope of the test, including a vague exemption for medical opinion testimony.
In 1993 in its Daubert decision the Supreme Court announced that Frye is no longer good law in federal court. The Court replaced the general acceptance standard with a validation test derived from the reference in Federal Rule of Evidence 702 to “scientific, technical or other specialized knowledge.” Adopting an epistemological approach, the Court emphasized the importance of the word “knowledge” in the statutory text. In Daubert, the Court listed several factors that a trial judge should consider in deciding whether proffered expert testimony qualifies as reliable “scientific . . . knowledge.” In 1999 in Kumho, the Court added that whenever the proponent tenders any type of expert testimony, the proponent must demonstrate that the expert’s testimony rests on more than the expert’s ipse dixit or unsubstantiated belief.
This new epistemological approach is much better suited to analyzing the admissibility of the products of the new brain science. This article uses the illustrations of electroencephalography (EEG) and Blood-Oxygenation-Level-Dependent functional Magnetic Resonance Imaging (BOLD fMRI) to demonstrate that the Daubert-Kumho framework can enable the courts to differentiate between brain scientists’ knowledge claims that have a sufficient basis and claims that at least currently lack an adequate warrant.
Suggested Citation: Suggested Citation
Imwinkelried, Edward J., Serendipitous Timing: The Coincidental Emergence of the New Brain Science and the Advent of an Epistemological Approach to Determining the Admissibility of Expert Testimony (October 20, 2010). Mercer Law Review, Forthcoming; UC Davis Legal Studies Research Paper No. 231. Available at SSRN: https://ssrn.com/abstract=1695240