The Tao of Daubert

All too often, the outcome of a “child custody dispute” will turn upon the recommendations contained within the custodial or parenting plan evaluation of the psychological expert. This first of a two-part article contains: 1) a brief review of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) standards; 2) an exploration of why evaluations are so rarely challenged by Frye/Daubert hearings; and 3) the foundation for a meaningful review of the evaluation under either Frye or Daubert standards. For those of you less familiar with Frye and Daubert, here is a brief review.

Frye and Daubert

In 1923, the Court of Appeals for the District of Columbia stated:

Just when a scientific principal or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principal must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principal or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs. Frye, 293 F. at 1014 (emphasis added).

In 1975, the Federal Rules of Evidence were promulgated. Rule 702 states that “[i]f scientific, technical, or other 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, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.” (The language in italics was added in the year 2000, which will be discussed in the second part of this article).

Following the adoption of the federal rules, an appeal was taken from a ruling that the holding in Frye, as part of the common law, was the standard to be applied under the federal rules. In Daubert, the Supreme Court held: “[t]he Federal Rules of Evidence, not Frye provide the standard for admitting expert scientific testimony in a federal trial.” Justice Blackmun, writing for a majority of the Court, stated several factors to consider in determining whether a theory or technique is scientific knowledge that will assist the trier of fact, so as to be the basis of admissible evidence under Rule 702 of the Federal Rules of Evidence. The Daubert opinion indicated four non-exclusive criteria to be applied: 1) whether the theory or technique can be and has been tested; 2) whether the theory or technique has been subjected to peer review and publication; 3) the known or potential rate of error of a particular scientific technique; 4) general acceptance within the particular scientific community. Additionally, and of significant importance in the area of custodial evaluations, the Daubert court enunciated the role of the trial judge as “gatekeeper.” This concept will be more fully developed in Part Two of this article in an upcoming issue, when the concepts of relevance, reliability and validity are discussed.

The Kumho Case

Following this opinion, the question of whether Daubert applied to other areas and experts, besides science and scientists, was raised in the Kumho case. The Supreme Court answered the question in the affirmative holding that: 1) Rule 702 makes no relevant distinction between “scientific” knowledge and “technical” or “other specialized” knowledge; 2) the evidentiary rationale that underlies the basic Daubert “gatekeeping” determination is not limited to “scientific” knowledge; and 3) it would be difficult, if not impossible, for judges to administer evidentiary rules under which the gatekeeping obligation depended upon this distinction. Kumho Tire Co., Ltd., v. Carmichael, 526 U.S. 137 (1999).

Applying the Analysis

A cursory reading of Frye and Daubert would suggest that the cases only apply to new, novel, or experimental fields of science or technical aspects. A closer examination indicates that the analysis should be applied to any opinion offered by any expert, which is based upon testing of any sort. The body of human knowledge continues to evolve and change, as do technological advancements, and, therefore, what once was thought to be true may now be subject to more rigorous examination. Clearly, generally accepted scientific theory has, over the passage of time, proven to be incorrect. For example, fingerprint evidence once thought to be reliable has come under continued and appropriate attack. For 40 years, the FBI crime laboratory provided expert testimony on what they called “bullet lead comparison.” Nevertheless, “60 Minutes” recently aired a segment in which the FBI admitted that testimony was based on no scientific foundation. Finally, can any of us forget Richard Gardner's “Parental Alienation Syndrome”?

While common in criminal cases or product liability cases, Frye/Daubert hearings are significantly less frequent in custody cases. The reasons for this are unclear, but a number of reasons are suggested. One possibility is that in the majority of states, a judge ' not a jury ' decides the issue of custody and, therefore, the considerations of a jury placing undue weight on “science” may be of less importance. When directly confronted with this question, the court in Seaboard Lumber Co. v. United States, 308 F.3d 1283 (Fed Cir. 2002) held, “while judicial evidentiary gatekeeping concerns were of less import in a bench trial ' the Daubert standards of relevance and reliability for scientific evidence must nevertheless be met.”

Legitimate Interests

Consideration needs to be given to other legitimate interests served by Frye and Daubert: the interests of judicial economy, protecting family resources from being spent needlessly to oppose worthless testimony and protecting our family court system and the body of law from relying on bad science. David L. Faigman et al.: Modern Scientific Evidence (2d ed., Thomson/West, 2006).

Another reason Daubert does not arise in custody cases is that many jurisdictions rely on a “joint expert” or “court's expert.” Finally, the very nature of the report of an expert in a custody case does not easily lend itself to a Frye or Daubert analysis. There is a significant difference between: 1) knowledge derived from the application of the scientific method; 2) knowledge developed through the application of scientific principles; 3) and knowledge gained from the study of conventional human activity. See Jon May: Deconstructing Daubert: Rule 702 and Nonscientific Evidence. Champion, June 2007, at 18.

Scientific Principles

The application of the scientific method is based upon the formulation of a hypothesis on already established principles and then experimentation created in order to test the validity of the theory contained within the hypothesis. The hypothesis is then circulated within the scientific community and other scientists try either to replicate or discredit the theory advanced. Because of the great weight that the American society places on “science,” the concerns of the legal system in protecting litigants from a jury's giving improper weight to the testimony of so-called experts led to the development of the Frye and Daubert principles.

Applying scientific principles to the real world of custody disputes raises an entirely different set of issues. For example, the MMPI 2 would undoubtedly pass either the Frye or the Daubert test, but how does an expert translate the results into a report that makes recommendations on a “child's best interest”? The test was not designed for this purpose, yet it is “commonly relied upon” by psychologists to form the basis of their opinions. Dr. Jonathan W. Gould, in his excellent book, states “the MMPI 2 and the results of the MMPI 2 should be used only for generating hypotheses rather than as a confirmatory tool in a forensic setting.” Jonathan W. Gould: Conducting Scientifically Crafted Child Custody Evaluations, (2d ed. SAGE Publications Inc., 2006).

If we are working in the realm of knowledge gained from the study of conventional human activity, which in a laymen's view is what psychology really is, how can it be judged under the Daubert standard? Consider the following excerpts from psychologists talking about common test instruments and custodial evaluations in general.

The Perception of Relationship Test, or PORT

“At this time, the PORT is probably best suited for research purposes, including those that may address validation and reliability issues. For psychologists with considerable clinical experience and expertise, it may serve as a useful adjunctive source of interview data, as might other projective measures for which little support of psychiatric viability exists.” Janet Carlson, Perception of Relationship Test, 11th Mental Measurements Yearbook 747 (1992).

Parent Perception of Child Profile, or PPCP

“The PPCP includes little or no information on scoring, norms, reliability, or validity, and therefore, can only be considered a clinical tool rather than a psychometric instrument.” Robert Hiltonsmith, Parent Perception of Child Profile, 11th Mental Measurements Yearbook 738 (1992).

The very first paragraph of Conducting Scientifically Crafted Child Custody Evaluations, which is perhaps the most current comprehensive work on the subject at this time, reads as follows: “[f]orensic mental health professionals are just beginning to organize a coherent body of literature and to develop a reliable methodology about how to interview; assess, integrate, and interpret information; and testify in child custody cases.” Gould, supra.

Inasmuch as the relevant “scientific/psychological” community is “just beginning ' ” it is impossible for an attorney who is untrained and unversed in the “ science” underlying the evaluation process, the theory and administration of psychometric testing and the appropriate conclusions to be drawn from even appropriate tests, properly administered, to make an informed judgment on the wisdom of a Frye/Daubert hearing. Hiring an expert to assist the attorney in making an appropriate analysis should be done early enough to be meaningful. In the context of this article, “meaningful assistance” will help determine whether the evaluation will pass a Frye/Daubert challenge. Such assistance is not meant merely to get an expert to say something different. Additionally, it is almost impossible for an attorney to obtain the raw data from the expert witness psychologist without hiring a psychologist who is permitted access to the testing information.

If the client lacks the funds to hire an appropriate expert to assist the attorney, at a very minimum the attorney needs to read, understand and have available at trial and deposition the following three books: Jonathan W. Gould: Conducting Scientifically Crafted Child Custody Evaluations, (2d ed. 2006); Marc J. Ackerman and Andrew W. Kane, Psychological Experts in Divorce Actions (4th ed. Aspen, 2005); and, the just-released, John A. Zervopoulos: Confronting Mental Health Evidence: A Practical Guide To Reliability And Experts in Family Law (2008). Certainly these are not a substitute for a consulting expert, but they will provide significant guidance in making an informed determination on filing a motion to raise the Frye/Daubert arguments.

Conclusion

In an upcoming issue, we discuss how to determine if a Frye/Daubert hearing should be utilized.

Richard West, a member of this newsletter's Board of Editors, is board certified in Marital and Family Law by the Florida Bar and The National Board of Trial Advocacy.

All too often, the outcome of a “child custody dispute” will turn upon the recommendations contained within the custodial or parenting plan evaluation of the psychological expert. This first of a two-part article contains: 1) a brief review of Frye v. United States , 293 F. 1013 (D.C. Cir. 1923) and Daubert v. Merrell Dow Pharm., Inc. , 509 U.S. 579 (1993) standards; 2) an exploration of why evaluations are so rarely challenged by Frye/Daubert hearings; and 3) the foundation for a meaningful review of the evaluation under either Frye or Daubert standards. For those of you less familiar with Frye and Daubert, here is a brief review.

Frye and Daubert

In 1923, the Court of Appeals for the District of Columbia stated:

Just when a scientific principal or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principal must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principal or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs. Frye, 293 F. at 1014 (emphasis added).

In 1975, the Federal Rules of Evidence were promulgated. Rule 702 states that “[i]f scientific, technical, or other 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, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.” (The language in italics was added in the year 2000, which will be discussed in the second part of this article).

Following the adoption of the federal rules, an appeal was taken from a ruling that the holding in Frye, as part of the common law, was the standard to be applied under the federal rules. In Daubert, the Supreme Court held: “[t]he Federal Rules of Evidence, not Frye provide the standard for admitting expert scientific testimony in a federal trial.” Justice Blackmun, writing for a majority of the Court, stated several factors to consider in determining whether a theory or technique is scientific knowledge that will assist the trier of fact, so as to be the basis of admissible evidence under Rule 702 of the Federal Rules of Evidence. The Daubert opinion indicated four non-exclusive criteria to be applied: 1) whether the theory or technique can be and has been tested; 2) whether the theory or technique has been subjected to peer review and publication; 3) the known or potential rate of error of a particular scientific technique; 4) general acceptance within the particular scientific community. Additionally, and of significant importance in the area of custodial evaluations, the Daubert court enunciated the role of the trial judge as “gatekeeper.” This concept will be more fully developed in Part Two of this article in an upcoming issue, when the concepts of relevance, reliability and validity are discussed.

The Kumho Case

Following this opinion, the question of whether Daubert applied to other areas and experts, besides science and scientists, was raised in the Kumho case. The Supreme Court answered the question in the affirmative holding that: 1) Rule 702 makes no relevant distinction between “scientific” knowledge and “technical” or “other specialized” knowledge; 2) the evidentiary rationale that underlies the basic Daubert “gatekeeping” determination is not limited to “scientific” knowledge; and 3) it would be difficult, if not impossible, for judges to administer evidentiary rules under which the gatekeeping obligation depended upon this distinction. Kumho Tire Co., Ltd., v. Carmichael , 526 U.S. 137 (1999).

Applying the Analysis

A cursory reading of Frye and Daubert would suggest that the cases only apply to new, novel, or experimental fields of science or technical aspects. A closer examination indicates that the analysis should be applied to any opinion offered by any expert, which is based upon testing of any sort. The body of human knowledge continues to evolve and change, as do technological advancements, and, therefore, what once was thought to be true may now be subject to more rigorous examination. Clearly, generally accepted scientific theory has, over the passage of time, proven to be incorrect. For example, fingerprint evidence once thought to be reliable has come under continued and appropriate attack. For 40 years, the FBI crime laboratory provided expert testimony on what they called “bullet lead comparison.” Nevertheless, “60 Minutes” recently aired a segment in which the FBI admitted that testimony was based on no scientific foundation. Finally, can any of us forget Richard Gardner's “Parental Alienation Syndrome”?

While common in criminal cases or product liability cases, Frye/Daubert hearings are significantly less frequent in custody cases. The reasons for this are unclear, but a number of reasons are suggested. One possibility is that in the majority of states, a judge ' not a jury ' decides the issue of custody and, therefore, the considerations of a jury placing undue weight on “science” may be of less importance. When directly confronted with this question, the court in Seaboard Lumber Co. v. United States , 308 F.3d 1283 (Fed Cir. 2002) held, “while judicial evidentiary gatekeeping concerns were of less import in a bench trial ' the Daubert standards of relevance and reliability for scientific evidence must nevertheless be met.”

Legitimate Interests

Consideration needs to be given to other legitimate interests served by Frye and Daubert: the interests of judicial economy, protecting family resources from being spent needlessly to oppose worthless testimony and protecting our family court system and the body of law from relying on bad science. David L. Faigman et al.: Modern Scientific Evidence (2d ed., Thomson/West, 2006).

Another reason Daubert does not arise in custody cases is that many jurisdictions rely on a “joint expert” or “court's expert.” Finally, the very nature of the report of an expert in a custody case does not easily lend itself to a Frye or Daubert analysis. There is a significant difference between: 1) knowledge derived from the application of the scientific method; 2) knowledge developed through the application of scientific principles; 3) and knowledge gained from the study of conventional human activity. See Jon May: Deconstructing Daubert: Rule 702 and Nonscientific Evidence. Champion, June 2007, at 18.

Scientific Principles

The application of the scientific method is based upon the formulation of a hypothesis on already established principles and then experimentation created in order to test the validity of the theory contained within the hypothesis. The hypothesis is then circulated within the scientific community and other scientists try either to replicate or discredit the theory advanced. Because of the great weight that the American society places on “science,” the concerns of the legal system in protecting litigants from a jury's giving improper weight to the testimony of so-called experts led to the development of the Frye and Daubert principles.

Applying scientific principles to the real world of custody disputes raises an entirely different set of issues. For example, the MMPI 2 would undoubtedly pass either the Frye or the Daubert test, but how does an expert translate the results into a report that makes recommendations on a “child's best interest”? The test was not designed for this purpose, yet it is “commonly relied upon” by psychologists to form the basis of their opinions. Dr. Jonathan W. Gould, in his excellent book, states “the MMPI 2 and the results of the MMPI 2 should be used only for generating hypotheses rather than as a confirmatory tool in a forensic setting.” Jonathan W. Gould: Conducting Scientifically Crafted Child Custody Evaluations, (2d ed. SAGE Publications Inc., 2006).

If we are working in the realm of knowledge gained from the study of conventional human activity, which in a laymen's view is what psychology really is, how can it be judged under the Daubert standard? Consider the following excerpts from psychologists talking about common test instruments and custodial evaluations in general.

The Perception of Relationship Test, or PORT

“At this time, the PORT is probably best suited for research purposes, including those that may address validation and reliability issues. For psychologists with considerable clinical experience and expertise, it may serve as a useful adjunctive source of interview data, as might other projective measures for which little support of psychiatric viability exists.” Janet Carlson, Perception of Relationship Test, 11th Mental Measurements Yearbook 747 (1992).

Parent Perception of Child Profile, or PPCP

“The PPCP includes little or no information on scoring, norms, reliability, or validity, and therefore, can only be considered a clinical tool rather than a psychometric instrument.” Robert Hiltonsmith, Parent Perception of Child Profile, 11th Mental Measurements Yearbook 738 (1992).

The very first paragraph of Conducting Scientifically Crafted Child Custody Evaluations, which is perhaps the most current comprehensive work on the subject at this time, reads as follows: “[f]orensic mental health professionals are just beginning to organize a coherent body of literature and to develop a reliable methodology about how to interview; assess, integrate, and interpret information; and testify in child custody cases.” Gould, supra.

Inasmuch as the relevant “scientific/psychological” community is “just beginning ' ” it is impossible for an attorney who is untrained and unversed in the “ science” underlying the evaluation process, the theory and administration of psychometric testing and the appropriate conclusions to be drawn from even appropriate tests, properly administered, to make an informed judgment on the wisdom of a Frye/Daubert hearing. Hiring an expert to assist the attorney in making an appropriate analysis should be done early enough to be meaningful. In the context of this article, “meaningful assistance” will help determine whether the evaluation will pass a Frye/Daubert challenge. Such assistance is not meant merely to get an expert to say something different. Additionally, it is almost impossible for an attorney to obtain the raw data from the expert witness psychologist without hiring a psychologist who is permitted access to the testing information.

If the client lacks the funds to hire an appropriate expert to assist the attorney, at a very minimum the attorney needs to read, understand and have available at trial and deposition the following three books: Jonathan W. Gould: Conducting Scientifically Crafted Child Custody Evaluations, (2d ed. 2006); Marc J. Ackerman and Andrew W. Kane, Psychological Experts in Divorce Actions (4th ed. Aspen, 2005); and, the just-released, John A. Zervopoulos: Confronting Mental Health Evidence: A Practical Guide To Reliability And Experts in Family Law (2008). Certainly these are not a substitute for a consulting expert, but they will provide significant guidance in making an informed determination on filing a motion to raise the Frye/Daubert arguments.

Conclusion

In an upcoming issue, we discuss how to determine if a Frye/Daubert hearing should be utilized.

Richard West, a member of this newsletter's Board of Editors, is board certified in Marital and Family Law by the Florida Bar and The National Board of Trial Advocacy.