1. Scientific Evidence Michael I. Shamos, Ph.D., J.D.
Institute for Software Research
School of Computer Science
Carnegie Mellon University
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2. LAW OF COMPUTER TECHNOLOGY FALL 2018 © 2018 MICHAEL I. SHAMOS
Opinion Testimony
Many elements in proving cases are matters of opinion:
Was she sane when she made her will?
Did death result from an overdose of medication?
Does this electronic circuit make use of Plaintiff’s trade secrets?
How is opinion evidence presented to a court?
Fact witnesses are highly limited in their ability to give opinion testimony
It usually must be given by experts
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3. LAW OF COMPUTER TECHNOLOGY FALL 2018 © 2018 MICHAEL I. SHAMOS
Opinion Testimony
“If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge” Federal Rule of Evidence 701
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4. Expert Computer Opinions
ALL REQUIRE SCIENTIFIC OR TECHNICAL KNOWLEDGE
Examples:
Does this software infringe Plaintiff’s patent?
Does this software comply with its specifications?
Why does this computer program infringe Plaintiff’s copyright
Have these s had their creation dates altered?
Is this data mining technique a trade secret?
Did the survey reveal if the public was likely to believe zippo.com is associated with Zippo Manufacturing?
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5. Admissible Lay Opinions
Boy who witnessed an auto accident could testify to the speed of a vehicle prior to the collision
Witnesses were allowed to testify that a participant in a bar fight was “boisterous” and “acting in an arrogant manner”
Homeowner could give an opinion of her home's fair market value it was damaged, in view of her familiarity with neighborhood real estate prices, length of her residency and employment in the town, and conversations with neighbors before the damage
Lay witnesses cannot base opinions on scientific, technical or specialized knowledge
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6. Frye v. United States 293 F. 1013 (App. D.C. 1923)
Frye was convicted of second degree murder
At his trial, the judge refused to allow expert testimony on the “systolic blood pressure deception test.” Experiments showed that if someone is lying, his blood pressure goes up. (Predecessor of the lie detector test.)
Frye took the test before trial and passed, and offered the expert who administered the test
On appeal: “We think the systolic blood pressure deception test has not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made.” Conviction affirmed.

7. LAW OF COMPUTER TECHNOLOGY FALL 2018 © 2018 MICHAEL I. SHAMOS
Frye v. United States
“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 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 from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.” Conviction affirmed.
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8. LAW OF COMPUTER TECHNOLOGY FALL 2018 © 2018 MICHAEL I. SHAMOS
Expert Testimony
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, 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 FRE 702
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The Daubert Test
The Frye “general acceptance” test set the standard for expert testimony for 70 years. The Federal Rules of Evidence were adopted in 1975
Did they or did they not alter the Frye test?
This was not decided until the Daubert case in 1993
Under Daubert, the judge makes a “preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue”
Pennsylvania and 24 other states still use a version of Frye.
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10. Daubert v. Merrell Dow Pharmaceuticals 509 U.S. 579 (1993)
Jason Daubert was born with birth defects which he claimed were caused by the drug Bendectin.
He sued the manufacturer, Merrell Dow
Merrell Dow submitted expert testimony that that no published scientific study demonstrated a link between Bendectin and birth defects.
Daubert submitted expert evidence of their own that suggested that Bendectin could cause birth defects, based on animal studies, pharmacological studies, and re-analysis of other published studies, and these methodologies had not yet gained acceptance within the general scientific community.

11. Daubert v. Merrell Dow Pharmaceuticals
Following Frye, the District court refused to admit the testimony of Daubert’s witness and gave judgment for Merrell Dow
The Ninth Circuit affirmed
Daubert appealed to the Supreme Court
The Court held, “The Federal Rules of Evidence, not Frye, provide the standard for admitting expert scientific testimony in a federal trial … ‘General acceptance" is not a necessary precondition to the admissibility of scientific evidence under the [Rules]’”
Created a new set of tests for expert testimony
VACATED the judgment and REMANDED the case
Daubert lost again under the new standard

12. LAW OF COMPUTER TECHNOLOGY FALL 2018 © 2018 MICHAEL I. SHAMOS
Daubert Tests
Standard is whether testimony is relevant and reliable.
Trial judge is to act as a gatekeeper to exclude unreliable methods
Non-exclusive reliability factors:
Can the technique be or has it been tested?
Has the technique been through peer review?
Is there a known or potential error rate of using the technique?
Are there published standards controlling its use?
Has the theory or technique has gained “general acceptance” within the relevant scientific community. (Frye)
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13. Mike’s Train House v. Lionel 472 F.3d 398 (6th Cir. 2006)
Both parties make model toy trains
Mike’s Train House sued Lionel for misappropriation of trade secrets (over 3000 detailed train design drawings)
The jury awarded Mike’s over $40 million
The judge allowed Dr. Jeffrey Stein, a mechanical engineering professor at U. of Michigan, to testify that Lionel’s drawings had been copied from Mike’s.
Stein created a method just for this purpose
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14. Mike’s Train House v. Lionel
Stein examined two sets of design drawings, one from [each party], concerning ten different train models, for a total of 162 pairs of drawings
His evaluation was based on 21 self-selected criteria, including the drawing’s title and the part number assigned to the drawing.
Stein calculated a score from 0 to 1 based on the criteria; 0 indicated no association between the drawings, and 1 indicated an extremely high association … “~55% … were copied … [D]esigners working independently to develop similar design drawings of the same train would not develop identical or substantially similar drawings”
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15. Mike’s Train House v. Lionel
“We conclude that the district court abandoned its gate-keeping function by failing to make any findings regarding the reliability of Stein’s testimony. The district court allowed Stein to testify as to his opinion of Lee’s report, but failed to make specific findings regarding the reliability of Stein’s own technique for comparing the design drawings.”
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16. Mike’s Train House v. Lionel
“Stein created the criteria with which he compared the design drawings; however, there is no evidence that his methodology had ever been tested, subjected to peer review, possessed a known or potential rate of error, or enjoyed general acceptance. Although it is true that “in some instances well-grounded but innovative theories will not have been published,” … the novelty of a theory does not shield an expert’s testimony from judicial scrutiny.”
REVERSED
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U.S. v. Frabizio (D. Mass 2006)
Frabizio was charged with possessing child pornography
At the time, the prosecution had to prove that the images were of real children (not computer-generated images). The law was later amended.
The U.S. offered the testimony of Dr. Farid, who claimed to have written “a mathematical programming code capable of determining whether electronic images of children are computer-generated or depict actual children”
Frabizio challenged Farid on Daubert grounds, that his method was not reliable
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18. U.S. v. Frabizio A demonstration was held in Court
30 percent of the time, Farid's program classified a real photograph as a computer-generated image. In one case it classified a cartoon character as real
The U.S. withdrew Dr. Farid as a witness during the demo
Next, the U.S. tried to introduce the testimony of Musheno a forensic examiner of photographic evidence in the FBI's Forensic Audio, Video, and Image Analysis Unit.
Musheno visually examined the photographs and without using any specialized equipment, concluded that 6 of 19 images were real and 10 “appeared to be real”

19. U.S. v. Frabizio
Musheno’s “methodology is not adequate to support the conclusions he so confidently offers; that the images downloaded from the internet are real children or appear to be real children. With Musheno offered as the government's sole expert, his testimony is not adequate to answer the question before the jury: whether images are real or virtual. It is therefore inadmissible in its entirety.”
Next, the U.S. tried to offer testimony of a pediatrician as to the ages of the children, based on “anatomical and medical features”
Excluded because it would suggest that the images were real.
The U.S. went to trial with NO experts. Frabizio was convicted.

20. U.S. v. Frabizio Jury Verdict Form

21. LAW OF COMPUTER TECHNOLOGY FALL 2018 © 2018 MICHAEL I. SHAMOS
Expert Disclosure
An expert witness must provide “a written report prepared and signed by the witness.”
“The report shall contain
a complete statement of all opinions to be expressed and the basis and reasons therefor;
the data or other information considered by the witness in forming the opinions;
any exhibits to be used as a summary of or support for the opinions;
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22. LAW OF COMPUTER TECHNOLOGY FALL 2018 © 2018 MICHAEL I. SHAMOS
Expert Disclosure
The report must also contain:
“the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years;
the compensation to be paid for the study and testimony; and
a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.” F.R.C.P §26(a)(2)
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Major Ideas
Only experts can give scientific opinions
Scientific and technical testimony must be screened carefully
Lay jurors can easily be misled by “authoritative” witnesses
Court must make sure “junk science” does not creep in, so serves as a gatekeeper for testimony
The Frye test is “generally accepted” scientific method
The Daubert test is “relevant and reliable,” a weaker standard
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25. Naki v. State of Hawaii et al. (D. Ariz., 2015)
Naki was injured when he allegedly fell from the top bunk of his prison cell in Saguaro Correctional Center in Arizona.
Naki says that Defendant Corrections Corporation of America, a private prison operator, was negligent when it forced him to use the top bed in his cell without providing adequate safety measures (no ladder) and proper means to ascend to and descend from his bed.
The Court found that the opinion of Naki’s proposed expert witness, Ms. Gill, was, Under Daubert, “unsupported by any reasoning, data, facts, principles, techniques, or methods,” and would not be admitted.
Under Arizona law, when “the alleged lack of care occurred during [a] professional or business activity, the plaintiff must present expert witness testimony‘” to establish the requisite standard of care.
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26. Naki v. State of Hawaii et al. (D. Ariz., 2015)
"[c]ourts have applied this principle to prison operations.”
Plaintiff’s Human Factors Expert Joellen Gill, was not qualified to testify regarding the standard of care in a correctional facility. Ms. Gill is a human factors engineer and has no knowledge or experience working in a correctional facility. Plaintiff and his human factors expert improperly rely on consumer standards for domestic use bunk beds that apply to children’s beds and expressly exclude “bunk beds for institutional use (for example, in prisons, military facilities, dormitories, and so forth).”
Because Naki was left without an expert, Defendant was entitled to judgment on the negligence claim, and the case ended.
The case was appealed to the Ninth Circuit. It settled during appeal.
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Cmwlth. of Pennsylvania v. Serge 896 A.2d 1170 (Pa. 2006), cert. den. (2006)
Serge was sentenced to life for first degree murder
At trial, the state’s expert was permitted to show a computer animation (CGA) of the state’s theory of the crime
Court required the state to authenticate the animation as both a fair and accurate depiction of expert reconstructive testimony and exclude any inflammatory features that may cause unfair prejudice.
Court required the state to provide Serge with the CGA before trial.
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28. Cmwlth. of Pennsylvania v. Serge 896 A. 2d 1170 (Pa. 2006), cert. den
The CGA showed the state’s theory based on the forensic evidence: how Serge shot his wife first in the lower back then through the heart as she knelt on the living room floor of their home.
CGA showed the location of Serge and his wife in the living room, positions of their bodies, and the sequence, path, trajectory, and impact sites of the bullets
Court instructed the jury that the CGA was a purely demonstrative exhibit, not substantive evidence, and it was being offered solely as an illustration of the state’s version of the events
Court told the jury that not to confuse art with reality and not to view the CGA as a definitive re-creation