Environmental Forensics Ch. 11 - Evidence Issues

Chain of Custody

- A commonly asserted foundational challenge to both documentary and physical evidence is the allegation that a document or specimen's chain of custody has been broken. - In such a case, a party alleges that a document or specimen's integrity has been comprised due to its mishandling by individuals who CANNOT GUARENTEE that the document or specimen has been maintained in its original form. - IF such a challenge is made, the proponent of the evidence will be required to show, with a reasonable amount of certainty, that the evidence has not been altered in any way. - The proponent will be required to make an accounting of each link in an item's chain of custody to prove that the document of specimen's integrity remains intact. - While a break in the chain of custody of evidence in an egregious case forms the bases for the exclusion of evidence, it most frequently affects the weight and NOT the admissibility of evidence.

Best Evidence Rule

- A commonly asserted foundational change to documentary evidence is that the proponent of the evidence has not provided the "best evidence." - The BEST EVIDENCE RULE is meant to ensure that the judge and jury are presented with the most reliable evidence possible when there is a risk that evidence could be fraudulent or compromised. The rule ONLY APPLIES where a proponent is seeking to introduce the content of a document, photograph, or recording, so the rule is INAPPLICABLE, for example, where a document is introduced to refresh a witness recollection.

Factors considered by Courts

- Although Daubert expressly states that the trial judge's evaluation of expert testimony is tended to be flexible and tailored to the facts of each individual case, the following factors provide SOME INDICATION of how Daubert has been and will be APPLIED in the environmental field in courts across the country: 1). When an expert depends solely on "experience" in reaching a conclusion, a court will usually exclude the testimony for failing to meet the reliability requirement set out in Daubert. 2). Scientific methodology must be followed. 3). Courts may or may not rely on the specific factors described in Daubert. 4). The Daubert inquiry is flexible and tied to the specific facts of each particular case. 5). Opinions should NOT be developed solely for purposes of testifying. 6). Expert conclusions based solely on speculation and possibility are insufficient.

Evidence Admissibility (1)

- Any environmental practitioner, whether attorney or expert, must address and revisit evidence admissibility issues early and often in the environmental forensic process. This applies both to making sure the expert will be allowed to testify and to taking the necessary actions to enhance the possibility of keeping the opposing expert from testifying. - An expert is of LITTLE ASSISTANCE if not allowed to testify, but even a shaky expert who is allowed to testify will likely REDUCE THE VALUE OF A CLAIM, or the chance of winning the case. - An expert must be EXPERT ENOUGH to provide forceful testimony. EQUALLY IMPORTANT, the environmental practitioner must be able to foresee any potential obstacles to the admissibility of expert testimony and evidence, and make veery effort to ensure and the court will allow the admission of a proposed expert's opinion.

Daubert in a Nutshell (1) *Daubert gives an enormous amount of discretion to the trial court. Attempting to predict what any court will require will be inexact.

- Both the counsel and the expert must have a strong understanding of the methodologies behind the question at issue. - Both the counsel and the expert must be able to clarify, explain, and validate the expert's methodology, the facts, calculations or data used by the expert, and the application of the expert's opinion to the facts of the case. - It is crucial that the expert (and counsel) understand the applicable legal standard of proof for the matter at hand. - Part and parcel to the importance of understanding the science, technique or specific knowledge at issue is focusing on the discreet question to be addressed by the expert. - The importance of learning the science, technique or specialized knowledge is also important when taking on the opponent's expert. - Consider how and why your expert is different from your opponent's expert, and be prepared to address those differences with both of them. - Do NOT confuse Daubert's tests of methodology with a license to attack the correctness of the conclusion. - Just because an expert uses an approved methodology does not end the inquiry.

Hearsay (unsubstantiated/rumor)

- Documentary Evidence may also be challenged as hearsay. FRE 802 provides that any out-of-court statement offered to prove the truth of the matter is asserted by the statement is HEARSAY (rumor), AND IS INADMISSIBLE AS EVIDENCE. - Most documents offered as evidence, including the types of documents often relied on by environmental practitioners, constitute hearsay in that their contents are usually offered for their truth. Thus, the environmental practitioner must find a basis to admit these documents, as well as find a witness who can lay the foundation for their introduction into evidence.

Motions to Exclude Expert Testimony Pursuant to Daubert

- In federal courts, parties should consider bringing a Daubert motion AS EARLY IN THE PROCESS AS POSSIBLE. - The disclosure requirements of the Federal Rule of Civil Procedure 26 may give an early warning as to whether an opposing party's expert is vulnerable to a challenge. - Under Rule 26(a)(2), ALL PARTIES MUST DISCLOSE THE IDENTIFY of each expert witness who may testify at trial under FRE 702, 703, an 705. - In many state courts, parties will still be required to bring a FRYE MOTION INSTEAD OF A DAUBERT MOTION when challenging expert testimony. - Many states have decided NOT to follow the FRE - While some states have not yet addressed the question of whether DAUBERT supersedes FRYE, other state courts have plainly decided to continue to FOLLOW THE FRYE TEST.

Frye General Acceptance Test (2)

- In stating the rule, the FRYE COURT REASONED THAT: " Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone is the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing for which the deduction is made must be sufficiently established to have gained a general acceptance in the particular field in which it belongs." - In light of the NEW RULE, the FRYE COURT held that BLOOD PRESSURE TEST AT ISSUE HAD NOT YET GAINED SUCH A STANDING AND SCIENTIFIC RECOGNITION TO JUSTIFY ADMITTING THE EXPERT TESTIMONY AT HAND. - At Frye, "general acceptance" test was applied by federal courts for more than 50 years, and all was applied exclusively to expert testimony based on new scientific techniques. The Frye test was also adopted and applied by many state courts, some of which still apply the Frye test today.

Daubert in a Nutshell (2)

- Modeling will be a fertile area for Daubert challenges. - Be prepared to bring or resist a Daubert motion early in the process. - In the appropriate circumstance, consider asking the judge to appoint his or her own expert to address reliability issues, and be ready if the judge suggests such an appointment SUA SPONTE (judge's order made without a request by any party to the case). - Consider using a "peer review" expert to assist in making sure that the testifying experts on both sides pass muster under Daubert. - BEWARE the expert whose METHODOLOGY WAS PREPARED FOR LITIGATION ONLY. - Investigate the organization behind an expert's diplomas, certifications, awards and peer-reviewed articles. With Daubert may come litigation-driven diploma mills and organization formed for the purpose of providing testifying experts the imprimatur of peer recognition, acceptance and review. - Prior testimony DOES NOT EQUAL peer review. - Daubert factors may or may not be accepted or used in arbitration, but Daubert-ready expert will ALMOST CERTAINLY BE MORE CREDIBLE TO ARBITRATORS. - Similarly, even in state courts that DO NOT EMPLOY the Daubert factors, a Daubert-ready expert will be superior to one who is not, because of all the Daubert Factors will certainly be relevant to cross -examination.

Probative value v. Danger of prejudice

- Under FRE 403, "although relevant, evidence may be excluded if its probative (quality or function) value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." - In that regard, the Daubert Court noted that "expert evidence can be both powerful and QUITE MISLEADING because of the difficulty in evaluating it. Because of the risk, the judge in weighing possible prejudice against probative force under FRE 403 of the present rules exercises more control over experts than over lay witnesses."

Factors Determining Reliability *To determine relevance, the trial court is required to ensure the expert testimony "will assist the trier of fact to understand or determine a fact in issue."

- The Court noted that these factors are NOT a definitive list. For Example, the Court acknowledged that peer review or publication is NOT always a dispositive consideration: 1). "It does not correlate with reliability" 2). "Some propositions, moreover, are too particular, too new, or of too limited interest to be published." - The facts of each particular case MUST be considered in reaching the admissibility determination. The Court also emphasized that even if WEAK EVIDENCE IS FOUND to be admissible by the trial court, the court and the parties still have the availability of vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof to address perceived deficiencies.

Admittance of Testimony

- The Daubert (and similar cases such as General Electric v. Joiner; Jumho v. Carmichael) decisions have required MOST COURTS TO SIGNIFICANTLY ALTER THE WAY IN WHICH THEY EVALUATE EXPERT TESTIMONY. - One way for environmental practitioners to predict the way a court will react to disputed expert evidence is to review the decisions of numerous courts that have already applied the Daubert standards to scientific expert testimony introduced in environmental disputes. - Accordingly, these decisions provide environmental practitioners with a strong indication of the preparation necessary to ensure that expert testimony is admitted into evidence.

Federal Rules of Evidence (FRE) * The FRE seems to create a NEW STANDARD FOR COURTS TO EVALUATE THE ADMISSIBILITY OF EXPERT TESTIMONY

- The Frye test stood alone until 1975 when Congress enacted the FEDERAL RULES OF EVIDENCE (FRE). - FRE 104(a) placed the power of determining qualifications of a witness in the hands of the DISTRICT COURT: Preliminary questions concerning the qualifications of a person should be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provision of subdivision (b) [pertaining to conditional admissions]. - In making its determination, it is NOT BOUND by the rules of evidence EXCEPT THOSE WITH RESPECT TO PRIVILEGE. - In addition, the NEWLY CREATED FRE 702 seemed to set out new criteria for courts to employ when evaluating the admissibility of expert testimony: If scientific, technical, or otherwise 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.

Evidence Admissibility (2) *Discusses DAUBERT vs. MERELL DOW PHARMACEUTICALS *GOOGLE this

- The GUIDING CASE for anyone seeing the ADMISSION OF EXPERT TESTIMONY is DAUBERT VS. MERRELL DOW PHARMACEUTICALS. - In "DAUBERT," the US Supreme Court set the standard for DETERMINING THE ADMISSIBILITY OF EXPERT TESTIMONY. Daubert requires federal court judges to ACT AS JUDICIAL "GATEKEEPERS" BY BARRING EXPERT TESTIMONY UNLESS IT IS BOTH RELEVANT AND RELIABLE. - There is no way to guarentee that a court will allow the testimony of any particular expert of the admission of a given piece of evidence. Nevertheless, there are certainly steps that can be taken to better the odds.

Daubert Relevance and Reliability

- The coexistence of the FRYE "General Acceptance" test and FRE 702 created widespread confusion and division among the courts as to WHICH TEST WAS APPLICABLE. - The Supreme Court finally attempted to clarify the uncertainty in DAUBERT V. MERRELL DOW PHARAMCEUTICALS. In DAUBERT, plainiffs were attempting to introduce expert testimony that they sustained birth defects because their mothers had ingested the drug Benedectin during pregnancy. - The Supreme Court held that FRE 702 SUSPENDED FRYE, and that the general acceptance test was NOT A PRECONDITION to the admissibility of scientific expert testimony under the FRE. - Instead, the Court held that the trial court judge must act as a "GATEKEEPER" in determining the admissibility of expert testimony to ensure that the testimony rests on a reliable foundation and is relevant to the issue to be determined.

Frye General Accepance Test (1)

- The controversy concerning which standard a court should apply in evaluating expert testimony began almost a century ago (1923) in FRYE VS. UNITED STATES. - FRYE dealt with the ADMISSIBILITY OF A LIE DETECTOR TEST. - *In FRYE, the defendant was subjected to a scientific test designed to determine his innocence or guilt based on the fluctuation of his blood pressure when asked a series of questions related to the crime for which he stood accused. - The defendant objected to the test and its results based on the novelty of the testing technique.

Expert Testimony

- The ultimate goal of environmental forensics in litigation is to PRODUCE A WINNING EXPERT OPINION that carries the day at trial or convinces other parties to settle. An opinion now allowed in evidence will do neither.

Each expert (under Daubert) required to prepare a report containing:

1). A complete statement of all options to be expressed and the bases of reasons therefor; 2). The data or other info considered by the witness in forming the opinions 3). Any exhibits to be used as a summary of or support for the opinions 4). The qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; 5). The compensation to be paid for the study and testimony 6). A listing of any other cases in which the witness has an expert at trial or by deposition within the preceding four years.

What are some of the EXCEPTIONS to the best evidence rule? (Best Evidence Rule)

1). FRE 1003, for example, provides that exact duplicates of documents can be admitted to the same extent as originals. 2). FRE 1004 provides that the original is NOT required where the original is lost or destroyed, not obtainable, in possession of an opponent, or not closely related to a controlling issue in a case. 3). FRE 1005 provides that, under certain circumstances, the contents of official public records may be proven by the presentation of copies testified or certified to be correct by competent witnesses. 4). Rule 1006 provides that the contents of voluminous writings, recordings, or photographs may be presented to the court in the form of charts, summaries, or calculations.

Under Daubert, the expert must address 2 questions. What are they? (Factors Determining Reliability)

1). Is the science being used based on reliable methodologies? In other words, is it consistent with the scientific method in which a hypothesis is stated, tested, repeated, and subject to peer review? Or, is it based on bad or junk science resting on hunches and baseless opinions? 2). Does the science forming the bases for the opinion fit the particular situation?

Under Daubert, what 2 separate issues must the trial court judge regarding the proposed testimony: (Daubert Relevance and Reliability)

1). Relevance to the issues in the case 2). Reliability of the basis for the testimony

When a judge bar experts from testifying, what are some of the following unhappy events that can occur? (Expert Testimony)

1). The client loses the case 2). The client has spent thousands of dollars in expert and attorneys' fees toward an opinion that was never given. 3). The client becomes extremely angry with the attorney, judge, and expert. The client cannot sue the judge, but may consider suing the attorney, and perhaps the expert, for malpractice. 4). The attorney will likely blame the expert for not being expert enough, and the expert will likely blame the attorney for failing to educate the expert about the important evidentiary issues. 5). Both the attorney and expert suffer tarnished professional reputations. - On the OTHER SIDE, the winning party's attorney and expert have impressed their client with their ACUMEN IN CAUSING THE OTHER EXPERT TO BE EXCLUDED FROM EVIDENCE AND ENHANCED THEIR PROFESSIONAL REPUTATIONS.

While hearsay is GENERALLY INADMISSIBLE AT TRIAL, courts have developed, and legislatures have codified, several EXCEPTIONS to the hearsay rule: (Hearsay (unsubstantiated/rumor))

1). The courts have interpreted FRE 703 to create a partial loophole for documents considered by expert witnesses. 2). FRE 803 and 804 outline 24 EXCEPTIONS to hearsay rules, 16 of which specifically relate to documents and documentary evidence.

The Daubert Court articulated the factors that a trial court may consider in determining RELIABILITY: (Factors Determining Reliability)

1). whether the methodology can be and has been tested 2). whether the methodology has been subject to peer review or publication 3). whether the error rates are known 4). the existence of standards controlling its operation 5). whether the theory has achieved general acceptance in the relevant scientific community