The Houston Bar Association Eighth Annual Juvenile Law Conference Juvenile Law Section Eighth Annual Juvenile Law Conference Houston, Texas September 15, 2018 EXPERT TESTIMONY Admissibility in Juvenile Proceedings Terrance Windham Attorney at Law

EXPERT TESTIMONY: TOPICS ADMISSIBILITY STANDARDS THE FEDERAL APPROACH Pre-Daubert Daubert & Its Progeny THE TEXAS APPROACH Pre-Kelly Kelly Robinson Nenno

EXPERT TESTIMONY: TOPICS ADMISSIBILITY STANDARDS DISCOVERY RULES FOR EXPERT WITNESSES CHALLENGING EXPERT TESTIMONY (PRACTICAL TIPS)

KEY LEGAL SOURCES Federal & Texas Rules of Evidence Court Decisions Rule 104(a) Rules 401, 402, and 403 Rule 702 [and corollary FRE 702] Court Decisions United Supreme Court Texas Court of Criminal Appeals Texas Supreme Court

THE PRIMARY RULES Federal Rule 702 Texas Rule 702 A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case. A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.

Expert Testimony Both FRE 702 & TRE 702 – Allow a witness, qualified as an expert by knowledge, skill, experience, training or education, To give opinion testimony based upon scientific, technical, or other specialized knowledge If it will assist the trier of fact—the jury

Expert Testimony THE FEDERAL APPROACH

FEDERAL HISTORICAL REVIEW Frye Standard followed 1975 Federal Rules of Evidence (FRE) But , federal courts still followed “Frye” 1993 Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579 (1993) Supreme Court held FRE created a new admissibility standard based on FRE Rule 702

Federal Rule of Evidence 702 (Broken Down) If … 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.

EXPERT TESTIMONY Daubert v. Merrell Dow Pharmaceuticals United States Supreme Court - 1993 Federal Rule of Evidence Rule 702 established new standard for admissibility of expert testimony based on Reliability and Relevance SCOTUS declared that the Federal Rules of Evidence [specifically Rule 702] established new “reliability” standard – e.g., validation, error rate, peer review Proclaimed federal trial judges as the “Gatekeepers” of expert testimony.

New Rule 702 Standard (Daubert) Reliability Is the reasoning or methodology underlying the proffered expert testimony scientifically valid? Relevance Can the reasoning or methodology be properly applied to the facts of the case? Will the expert testimony assist the trier of fact? NOTE: The “Qualifications” of the Expert is a part of the Reliabililty analysis The “Daubert test”

HOW ARE THESE TO BE DETERMINED? EXPERT TESTIMONY Daubert v. Merrell Dow Pharmaceuticals United States Supreme Court - 1993 Factors to aid trial judges in making this “preliminary assessment” of reliability and relevance (i.e., admissibility) under Rule 702: Scientific knowledge HOW ARE THESE TO BE DETERMINED? Peer review and publication Known or potential rate of error (1) Whether a theory or technique is scientific knowledge that can be (and has been) tested; (2) Whether the theory or technique has been subjected to peer review and publication; The known or potential rate of error for a particular scientific technique; and (4) Whether the theory or technique has been generally accepted by the scientific community. Generally acceptance These four factors are not exclusive.

EXPERT TESTIMONY Daubert v. Merrell Dow Pharmaceuticals United States Supreme Court - 1993 Federal trial judges as the “Gatekeepers” of expert testimony. Qualifications Reliability Relevancy - Assist the trier of fact - Sufficiently tied to the facts of the case To independently assess the validity and reliability of the reasoning, methodology, and the principles underlying any proffered scientific evidence. Qualifications Sufficient background in a particular field - Background must be tied to the subject about which the expert witness will testify Qualification is distinct from reliability and relevance and should be evaluated independently. Vela v. State, 209 S.W.3d 128 (Tex. Crim. App. 2006. Rule 104 (a) Trial judge must make this these determinations as a preliminary matter prior to admission of the evidence before the trier of fact.

“Daubert Hearing”: The Burden of Persuasion EXPERT TESTIMONY Daubert v. Merrell Dow Pharmaceuticals United States Supreme Court - 1993 “Daubert Hearing”: The Burden of Persuasion The offering party Preponderance of the evidence reliable The party offering scientific expert testimony must establish by a preponderance of the evidence, that his expert testimony is sufficiently reliable and relevant to assist the factfinder in reaching accurate results. relevant

Daubert’s Progeny General Electric Co. v. Joiner Trial judge discretion in evaluating reliability Standard of review of decisions regarding admissibility of expert testimony is “abuse of discretion”. Kumho Tire Co. v. Carmichael Daubert reliability test is “flexible” and applies not just scientific experts, but to all Rule 702 experts. No distinction between scientific and nonscientific expertise. Amplified “Gatekeeking:” role of the trial judge

Expert Testimony THE TEXAS APPROACH

TEXAS HISTORICAL REVIEW Pre-Texas Rules of Evidence Texas Courts essentially followed Frye 1980’s Texas Rules of Criminal Evidence adopted Patterned on FRE Texas Courts continued to follow Frye 1990’s Kelly Robinson Nenno

TEXAS HISTORICAL REVIEW 1992 Kelly v. State, 824 S.W.2d 569 (Tex. Crim.App. 1992) - Predates Daubert, Texas Court of Criminal Appeals held that TRE Rule 702 created new admissibility standard

Expert Testimony: The Texas Approach Kelly v. State, 824 .W,2 d 568 (Tex.Crim.App. 1992) The Kelly Doctrine Rule 702: The threshold admissibility test Expert testimony will be of assistance to the trier of fact. In order to assist the trier of fact, the expert testimony must be reliable and relevant. For expert testimony to be admissible it must pass the threshold test that it concerns a subject about which an expert’s opinion will be of assistance to the trier of fact. In order to assist the trier of fact, the expert evidence must be reliable and relevant.

Expert Testimony: The Texas Approach Kelly v. State, 824 .W,2 d 568 (Tex.Crim.App. 1992) The Kelly Criteria To be sufficiently reliable and relevant to help the jury, expert testimony must meet three criteria: The underlying scientific theory must be valid; The technique applying the theory must be valid; and The technique must be properly applied on the occasion in question. Reliability Test: (1) Underlying scientific theory is valid; (2) Technique applying the theory is valid; (3) Technique was properly applied on the occasion in question (First two – judicial notice possible) These determinations are to be made prior to admission of the expert testimony before the fact finder pursuant to Rule 104 (a) – a GATEKEEPER HEARING. For the first two criteria – judicial notice possible!

Expert Testimony: The Texas Approach Scientific Reliability Factors Accepted by scientific community Existence of literature (peer review) Clarity of explanation Potential rate of error Availability of other experts Qualifications, experience, and skill (1) the extent to which the underlying scientific theory and technique are accepted as valid by the relevant scientific community; (2) the qualifications of the expert(s) testifying; (3) the existence of literature supporting or rejecting the underlying scientific theory or technique; (4) the potential rate of error of the technique; (5) the availability of other experts to test and evaluate the technique; (6) the clarity with which the underlying theory or technique can be explained to the court; and (7) the experience and skill of the person(s) who applied the technique on the occasion in question. Qualification is distinct from reliability and relevance and should be evaluated independently. Vela v. State, 209 S.W.3d 128 (Tex. Crim. App. 2006.

Expert Testimony: The Texas Approach Kelly v. State, 824 S.W.2 d 568 (Tex.Crim.App. 1992) The Rule 403 Analysis Even reliable and relevant expert testimony may be unhelpful if: It is merely cumulative; It would confuse or mislead the jury; It would consume an inordinate amount of trial time. Trial judge determines whether the testimony passes the benchmark of Rule 403. Because of the inherent uncertainties of scientific evidence, and “because of the difficulty laypersons have in evaluating the reliability of novel scientific testimony … it is appropriate for the burden of persuasion to be enhanced, i.e., that the burden be that of clear and convincing evidence rather than simply the preponderance of the evidence. In other words, before novel scientific evidence may be admitted under Rule 702, the proponent of such evidence must persuade the trial court, by clear and convincing evidence, that the evidence is reliable and therefore relevant.”   Therefore, even though proffered expert evidence is reliable, the trial judge must still determine whether, on balance, it might nevertheless be unhelpful to the trier of fact.

Expert Testimony: The Texas Approach Kelly v. State, 824 S.W.2 d 568 (Tex.Crim.App. 1992) The “Kelly (Gatekeeper) Hearing” Rule 104 (a) Trial judge must make these determinations as a preliminary matter prior to admission of the evidence before the trier of fact.

Expert Testimony: The Texas Approach The “Kelly (Gatekeeper) Hearing” Kelly v. State, 824 S.W.2d 568 (Tex.Crim.App. 1992) The “Kelly (Gatekeeper) Hearing” The Burden of Persuasion The party offering scientific expert testimony must persuade the trial judge, by clear and convincing evidence, that the testimony rests on a solid scientific foundation (i.e., is reliable); and will assist the fact finder. If the evidence is reliable, then it’s relevant. Because of the inherent uncertainties of scientific evidence, and “because of the difficulty laypersons have in evaluating the reliability of novel scientific testimony … it is appropriate for the burden of persuasion to be enhanced, i.e., that the burden be that of clear and convincing evidence rather than simply the preponderance of the evidence. In other words, before novel scientific evidence may be admitted under Rule 702, the proponent of such evidence must persuade the trial court, by clear and convincing evidence, that the evidence is reliable and therefore relevant.”   The Standard of Review Appellate courts would review decisions of trial judges under an “abuse of discretion” standard.

Expert Testimony: The Texas Approach Kelly v. State, 824 S.W.2d 568 (Tex.Crim.App. 1992) Trial Judge as “Gatekeeper” Clear and Convincing Evidence Reliable Reliable scientific foundation Relevant Assist the trier of fact Sufficiently tied to the facts of the case Because of the inherent uncertainties of scientific evidence, and “because of the difficulty laypersons have in evaluating the reliability of novel scientific testimony … it is appropriate for the burden of persuasion to be enhanced, i.e., that the burden be that of clear and convincing evidence rather than simply the preponderance of the evidence. In other words, before novel scientific evidence may be admitted under Rule 702, the proponent of such evidence must persuade the trial court, by clear and convincing evidence, that the evidence is reliable and therefore relevant.”  

Expert Testimony: The Texas Approach Expert Testimony in Civil Cases Admissibility of Expert Testimony in Civil Cases E.I. du Pont de Nemours & Co. v. Robinson Texas Supreme Court - 1995

Expert Testimony: The Texas Approach E.I. du Pont de Nemours & Co. v. Robinson Texas Supreme Court - 1995 Texas Supreme Court acknowledged the “Kelly” standard for determining reliability of expert testimony in civil cases pursuant to Texas Rules of Evidence – Rule 702 and Rule 104 (a). Insightful Observations by the Texas Supreme Court The proliferation of expert testimony. Professional expert witnesses are available to render opinions on almost any theory, regardless of its merit. Can have an extremely prejudicial impact on a jury, in part because of the way in which a jury may perceive a witness labeled as an expert. Impact of expert testimony on juries.

Expert Testimony: The Texas Approach The Role of the Trial Judge E.I. du Pont de Nemours & Co. v. Robinson Texas Supreme Court - 1995 Trial judges have a heightened responsibility to ensure that expert testimony is based on a reliable foundation and is relevant to the issues in the case. to make sure that speculative and unreliable expert testimony does not reach the jury under the veil of reliability that is generally associated with the label “expert testimony”. Because of the increase in the use of professional expert witnesses – Because of the likely prejudicial impact of expert witness testimony –

Expert Testimony: The Texas Approach Role of the Trial Judge E.I. du Pont de Nemours & Co. v. Robinson Texas Supreme Court - 1995 Gatekeeper role (and reliability analysis) is not intended to supplant the adversary system or invade the province of the jury. Trial judge may not exclude an expert because he believes one expert is more persuasive than another expert. Because of the increase in the use of professional expert witnesses – Because of the likely prejudicial impact of expert witness testimony – However, in evaluating the reliability of an expert’s method, the trial court may properly consider whether the expert’s methodology has been contrived to reach a particular result. Not the role of the trial court to make ultimate conclusions as to the persuasiveness of the proffered evidence.

The Robinson Reliability Factors Expert Testimony: The Texas Approach E.I. du Pont de Nemours & Co. v. Robinson Texas Supreme Court - 1995 The Robinson Reliability Factors The extent to which the theory has been or can be tested The extent to which the technique relies on the expert’s own subjective interpretation Whether technique has been peer reviewed and/or published The potential rate of error of the technique Accepted by relevant scientific community The non-judicial uses which have been made of the theory or technique. (1) the extent to which the underlying scientific theory and technique are accepted as valid by the relevant scientific community; (2) the qualifications of the expert(s) testifying; (3) the existence of literature supporting or rejecting the underlying scientific theory or technique; (4) the potential rate of error of the technique; (5) the availability of other experts to test and evaluate the technique; (6) the clarity with which the underlying theory or technique can be explained to the court; and (7) the experience and skill of the person(s) who applied the technique on the occasion in question. Qualification is distinct from reliability and relevance and should be evaluated independently. Vela v. State, 209 S.W.3d 128 (Tex. Crim. App. 2006.

Expert Testimony: The Texas Approach The Role of the Trial Judge E.I. du Pont de Nemours & Co. v. Robinson Texas Supreme Court - 1995 Trial courts may consider other factors which are helpful to determining the reliability of the scientific evidence. Different factors for different cases. The standard of review: “Abuse of Discretion”. Test for abuse of discretion: whether the trial court acted without reference to any guiding principles in making the decision regarding admissibility of the evidence. The Rule 403 analysis.

Expert Testimony: The Texas Approach Non-scientific Expert Evidence Admissibility of Non-scientific Expert Evidence Nenno v. State Texas Court of Criminal Appeals - 1998

Texas Rule of Evidence 702 If 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.

Texas Court of Criminal Appeals - 1998 Nenno v. State Texas Court of Criminal Appeals - 1998 Modified the application of the Kelly criteria for non-scientific expert evidence (the “soft” sciences). Key Rule 702 language: “… a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” Psychology Economics Political science Sociology When assessing the reliability of expert testimony concerning a “soft-science” subject, the Kelly requirement of reliability applies, but with less vigor than to the “hard” sciences. Nenno specifically dealt with the admissibility of nonscientific expert testimony relating to the question of the defendant’s future dangerousness in the context of a capital murder case. Examples of the “soft” sciences: psychology, economics, political science, sociology “Hard science methods of validation, such as assessing the potential rate of error or subjecting a theory to peer review, may often be inappropriate for testing the reliability of fields of expertise outside the hard sciences.” Nenno, at 561

The Nenno Reliability Questions for “Soft” Sciences Expert Testimony: The Texas Approach Nenno v. State Texas Court of Criminal Appeals – 1998 The Nenno Reliability Questions for “Soft” Sciences Whether the field of expertise is legitimate? Whether the subject matter of the expert’s testimony is within the scope of the field? AND Whether the expert’s testimony properly relies upon and/or utilizes the principles in the field? These questions are an appropriately tailored translation of the Kelly test to areas outside of the “hard” sciences. Texas Court of Criminal Appeals

Expert Testimony: The Texas Approach Discovery in Juvenile Cases TFC, Section 51.17(b) Discovery in a proceeding under this title is governed by the Code of Criminal Procedure and by case decisions in criminal cases. TCCP, Article 39.14(b) (b) On a party’s request made not later than the 30th day before the date that jury selection in the trial is scheduled to begin, or in a trial without a jury, the presentation of evidence is scheduled to begin, the party receiving the request shall disclose to the requesting party the name and address of each person the disclosing party may use at trial to present evidence under Rules 702, 703, and 705, Texas Rules of Evidence. Except as otherwise provided by this subsection, the disclosure must be made in writing in hard copy form or by electronic means not later than the 20th day before the date that jury selection in the trial is scheduled to begin, or in a trial without a jury, the presentation of evidence is scheduled to begin. On motion of a party and on notice to the other parties, the court may order an earlier time at which one or more of the other parties must make the disclosure to the requesting party.

Expert Testimony: The Texas Approach Discovery in Juvenile Cases Expert discovery triggered by request – not a formal motion. Written request Electronic requests Requires request to be made 30 days before trial. Requires disclosure in writing (either hard copy or electronically) not later than 20 days before trial. Grants the court discretion to order earlier discovery on motion of a party. Changes apply to discovery of experts in the trial of an offense committed on or after September 1, 2015.

CHALLENGING EXPERT TESTIMONY To challenge a party’s designation of expert witnesses: File written Notice of Objection and Request for a “Kelly/Daubert [Gatekeeper] Hearing”. Remember, once a party opposing expert testimony objects, the proponent bears the burden of demonstrating the admissibility of the testimony. Obtain a hearing date and ask trial judge to sign order setting the hearing. Comply: Texas Rules of Civil Procedure – Rule 21(b) regarding service and notice of the hearing on the other party.

Getting prepared for the Kelly (Gatekeeper) Hearing CHALLENGING EXPERT TESTIMONY Getting prepared for the Kelly (Gatekeeper) Hearing Research credentials of opposing party’s expert(s). Research subject matter of testimony, underlying theory and technique. Run a computerized West Law or Lexis search using the expert’s name. Run an internet search (using, e.g., yahoo.com or google.com) using the expert’s name and field of expertise. Locate the expert’s web site or any mention of the expert on the internet.

CHALLENGING EXPERT TESTIMONY Getting prepared for the Kelly (Gatekeeper) Hearing At the hearing cross-examine the proponent’s [opposing party] expert(s) using the threshold factors delineated in Kelly, Daubert, and Robinson. At the hearing, ask the expert what is his/her field of expertise. Ask what specific expert opinion he/she will be offering. Ask what specific information is available to show that this field or expertise is accepted or discredited. Ask what specific facts or data have been made available to the expert to support or contradict his/her opinion. Use the “Gatekeeper” Hearing to limit scope of expert’s testimony.

Use the Gatekeeper Hearing to Limit Scope of Expert’s Testimony CHALLENGING EXPERT TESTIMONY Use the Gatekeeper Hearing to Limit Scope of Expert’s Testimony For “hard” science expert testimony, be prepared to cross-examine your opponent’s expert witness on the following topics: the expert witness’ credentials; the following Kelly factors: - the validity of the underlying scientific theory; - the validity of the technique applying the theory; and - the proper application of the technique in connection with the case you’re trying 1) the extent to which the underlying scientific theory and technique are accepted as valid by the relevant scientific community; (2) the qualifications of the expert(s) testifying; (3) the existence of literature supporting or rejecting the underlying scientific theory or technique; (4) the potential rate of error of the technique; (5) the availability of other experts to test and evaluate the technique; (6) the clarity with which the underlying theory or technique can be explained to the court; and (7) the experience and skill of the person(s) who applied the technique on the occasion in question. Qualification is distinct from reliability and relevance and should be evaluated independently. Vela v. State, 209 S.W.3d 128 (Tex. Crim. App. 2006. Don’t forget Kelly’s seven non-exclusive factors that the trial court may consider in determining reliability

Use the Gatekeeper Hearing to Limit Scope of Expert’s Testimony CHALLENGING EXPERT TESTIMONY Use the Gatekeeper Hearing to Limit Scope of Expert’s Testimony For “soft” science expert testimony, be prepared to cross-examine your opponent’s expert witness on the following topics: the Nenno factors: the legitimacy of the field of expertise; the scope of the subject matter of the expert’s testimony within the field of expertise; and the proper reliance or utilization by the expert witness of the principles involved in the field. Again, use the “Gatekeeper Hearing” to limit the scope of expert’s testimony.

WHAT’S CLEAR IN TEXAS Whether it’s a criminal or a civil case, when expert testimony is proffered, the Kelly/Daubert standard of admissibility [“reliability” and “relevance”] will be followed. That standard it is to be applied to ALL “expert” testimony whether it involves scientific or non-scientific evidence. The rules regarding discovery of expert witnesses have been modified to bring this facet of discovery into harmony with the Michael Morton Act.

WHAT’S CLEAR IN TEXAS When it comes to admissibility of “expert testimony”, the trial judge is the Gatekeeper; has enormous discretion; and absent an abuse of discretion, his rulings will always be upheld.

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