Group to individual (G2i) inference in scientific expert testimony

University of Chicago Law Review

Volumn 81, Issue 2, 2014, Pages 417-480

  Faigman, David L ^a,b,c   Monahan, John ^d   Slobogin, Christopher ^e  

^a UNIVERSITY OF CALIFORNIA   (United States)

^b UNIVERSITY OF CALIFORNIA   (United States)

^c Science and Health Policy   (United States)

^d UNIVERSITY OF VIRGINIA   (United States)

^e VANDERBILT UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84904284616     PISSN: 00419494     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (173)

1. As Justice Stephen Breyer stated in his introduction to the Federal Judicial Center's Reference Manual on Scientific Evidence (National Academies 3d ed 2011), "Scientific issues permeate the law." Id at 3.
2. See, for example, text accompanying notes 58-64. Throughout this Article we refer to courtroom triers of fact as jurors. Expert-admissibility rules, which are our primary concern, operate somewhat differently in bench trials. See, for example, Oklahoma v Tyson Foods, 565 F3d 769, 780 (10th Cir 2009) ("[A] judge conducting a bench trial maintains greater leeway in admitting questionable evidence, weighing its persuasive value upon presentation.").
3. See Kumho Tire Co v Carmichael, 526 US 137, 148 (1999) ("[I]t would prove difficult, if not impossible, for judges to administer evidentiary rules under which a gatekeeping obligation depended upon a distinction between 'scientific' knowledge and 'technical' or 'other specialized' knowledge. There is no clear line that divides the one from the others.").
4. Kenneth Culp Davis, Administrative Law Text § 7.03 at 160 (West 3d ed 1972).
5. Kenneth Culp Davis, An Approach to Problems of Evidence in the Administrative Process, 55 Harv L Rev 364, 424 (1942).
6. See John Monahan and Laurens Walker, Social Authority: Obtaining, Evaluating, and Establishing Social Science in Law, 134 U Pa L Rev 477, 488 (1986);
7. Laurens Walker and John Monahan, Social Frameworks: A New Use of Social Science in Law, 73 Va L Rev 559, 570 (1987);
8. Laurens Walker and John Monahan, Social Facts: Scientific Methodology as Legal Precedent, 76 Cal L Rev 877, 879 (1988).
9. Webster's Third New International Dictionary of the English Language Unabridged 622 (Merriam-Webster 2002).
10. Diagnostic, Dictionary.com, online at http://dictionary.reference.com/ browse/diagnostic?s=t (visited May 21, 2014). Thus, our use of the term "diagnostic" is broader than the more common use of the term in medicine and psychiatry.
11. See David L. Faigman, Making the Law Safe for Science: A Proposed Rule for the Admission of Expert Testimony, 35 Washburn L J 401, 414 (1996) ("[A]llowing experts to. . apply the science to the case without research supporting their ability to do so invites expert speculation borne out of expert witness fees or a zeal for the party's cause.").
12. For reviews of scientific studies on eyewitness testimony, see Elizabeth F. Loftus, Eyewitness Testimony 35-36, 52-109, 136-42 (Harvard 1979);
13. Gary L. Wells and Elizabeth A. Olson, Eyewitness Testimony, 54 Ann Rev Psychology 277, 285-89 (2003);
14. Gary L. Wells and Elizabeth F. Loftus, Eyewitness Memory for People and Events, in Irving B. Weiner and Randy K. Otto, eds, 11 Handbook of Psychology: Forensic Psychology 617, 620-27 (Wiley 2013).
15. Numerous symposia collect articles from a number of authors on the rules that govern the admissibility of expert testimony and how they should be interpreted. See generally, for example, Symposium, The Daubert Hearing: From All the Critical Perspectives, 46 UC Davis L Rev 737 (2013);
16. Symposium, Expertise in the Courtroom: Scientists and Wizards, 52 Vill L Rev 679 (2007);
17. Symposium, Expert Admissibility Symposium: What Is the Question? What Is the Answer? How Should the Court Frame a Question to Which Standards of Reliability Are to Be Applied?, 34 Seton Hall L Rev 1 (2003).
18. Frye, 293 F at 1014.
19. See Paul C. Giannelli, The Admissibility of Novel Scientific Evidence: Frye v. United States a Half-Century Later, 80 Colum L Rev 1197, 1215-16 (1980).
20. See Daubert, 509 US at 587.
21. Daubert, 509 US at 590.
22. See FRE 104(a); Bourjaily v United States, 483 US 171, 175-76 (1987) (holding that determinations of fact under FRE 104(a) must be proved by a preponderance of the evidence).
23. As we emphasize in the Conclusion, the four "Daubert factors" are merely guidelines to help courts assess expert testimony. At the same time, as Justice Scalia pointed out concurring in Kumho Tire Company v Carmichael, although "the Daubert factors are not holy writ, in a particular case the failure to apply one or another of them may be unreasonable, and hence an abuse of discretion." Kumho Tire Co v Carmichael, 526 US 137, 159 (1999) (Scalia concurring).
24. Daubert, 509 US at 593
25. quoting Karl R. Popper, Conjectures and Refutations: The Growth of Scientific Knowledge 37 (Routledge 5th ed 1989).
26. Daubert, 509 US at 593 (emphasis added).
27. Daubert, 509 US at 593-94.
28. Daubert, 509 US at 595.
29. Joiner, 522 US at 146.
30. See, for example, Iacobelli Construction v County of Monroe, 32 F3d 19, 25 (2d Cir 1994);
31. Thornton v Caterpillar, Inc, 951 F Supp 575, 577 (D SC 1997);
32. United States v Starzecpyzel, 880 F Supp 1027, 1041 (SDNY 1995).
33. Kumho Tire, 526 US at 147
34. quoting Daubert, 509 US at 589.
35. Kumho Tire, 526 US at 152.
36. Id at 149, quoting Daubert, 509 US at 592.
37. Compare David L. Faigman, The Daubert Revolution and the Birth of Modernity: Managing Scientific Evidence in the Age of Science, 46 UC Davis L Rev 893, 895-97 (2013)
38. Brian L. Cutler and Gary L. Wells, Expert Testimony regarding Eyewitness Identification, in Jennifer L. Skeem, Kevin S. Douglas, and Scott O. Lilienfeld, eds, Psychological Science in the Courtroom: Consensus and Controversy 100, 113 (Guilford 2009).
39. See, for example, Williams v State, 895 SW2d 363, 366-67 (Tex Crim App 1994).
40. Compare United States v Dixon, 261 Fed Appx 800, 802, 804-05 (5th Cir 2008) (holding that the district court did not abuse its discretion in excluding the defense expert's proffered testimony concerning the general phenomenon of false confessions, noting that the witness had not examined the defendant and "was not prepared to opine on whether [his] confessions were false"), with United States v Jacques, 784 F Supp 2d 59, 63 (D Mass 2011) (reasoning that an expert's diagnostic testimony was inadmissible, as it would amount to an improper statement regarding guilt).
41. Jeff L. Lewin, The Genesis and Evolution of Legal Uncertainty about "Reasonable Medical Certainty," 57 Md L Rev 380, 397-406 (1998).
42. See, for example, United States v Grigsby, 712 F3d 964, 968 (6th Cir 2013) (describing testimony by a mental-health professional that there was a "reasonable psychological certainty" that the defendant had a mental illness at the time of the offense).
43. See, for example, State v Saldana, 324 NW2d 227, 230 (Minn 1982) (excluding testimony about rape-trauma syndrome on the ground that "[t]he jury must not decide this case on the basis of how most people react to rape or on whether [the victim's] reactions were the typical reactions of a person who has been a victim of rape. Rather, the jury must decide what happened in this case.");
44. Commonwealth v Goetzendanner, 679 NE2d 240, 243-46 (Mass App 1997) (ruling that expert testimony about domestic vio lence and battered woman's syndrome in general terms was properly admitted to explain victim's conduct, so long as the expert did not offer an opinion or diagnosis that victim suffers from syndrome);
45. People v Christel, 537 NW2d 194, 201 (Mich 1995) (ruling that an expert may explain generalities of battered woman's syndrome to describe the uniqueness of particular behavior at issue, but an expert may not offer an opinion whether the victim was a battered woman).
46. See In re Rezulin Products Liability Litigation, 369 F Supp 2d 398, 401-02 (SDNY 2005) (collecting cases).
47. See, for example, Magistrini v One Hour Martinizing Dry Cleaning, 180 F Supp 2d 584, 589 (D NJ 2002).
48. In re Rezulin Products Liability Litigation, 369 F Supp 2d at 438.
49. See, for example, In re Aredia and Zometa Products Liability Litigation, 483 Fed Appx 182, 191 (6th Cir 2012) ("Because Plaintiff failed to demonstrate an essential element of her case, specific causation, the grant of summary judgment was appropriate.").
50. See, for example, Pluck v BP Oil Pipeline Co, 640 F3d 671, 675 (6th Cir 2011) (in which the plaintiffs hired two experts on the general link between contaminants and their injuries, only one of whom testified to specific causation).
51. See Joseph Sanders, Applying Daubert Inconsistently? Proof of Individual Causation in Toxic Tort and Forensic Cases, 75 Brooklyn L Rev 1367, 1374, 1403-04 (2010) (analogizing the admissibility standards applied to specific causation testimony in toxic tort cases to the "liberal" standards applied to forensic testimony in criminal cases and stating that "this liberal approach unnecessarily helps to perpetuate the status quo").
52. David L. Faigman, Nilanjana Dasgupta, and Cecilia L. Ridgeway, A Matter of Fit: The Law of Discrimination and the Science of Implicit Bias, 59 Hastings L J 1389, 1431 (2008)
53. with Melissa Hart and Paul M. Secunda, A Matter of Context: Social Framework Evidence in Employment Discrimination Class Actions, 78 Fordham L Rev 37, 59-66 (2009)
54. and Susan T. Fiske and Eugene Borgida, Best Practices: How to Evaluate Psychological Science for Use by Organizations, 31 Rsrch in Organizational Behav 253, 269-70 (2011).
55. Dukes v Wal-Mart, Inc, 509 F3d 1168, 1179 (9th Cir 2007).
56. Wal-Mart Stores, 131 S Ct at 2553-54 (citations omitted).
57. Brian J. Heard, Forensic Ballistics in Court: Interpretation and Presentation of Firearms Evidence xvii (John Wiley & Sons 2013).
58. See also, for example, United States v Allen, 207 F Supp 2d 856, 868 (ND Ind 2002) (footwear identification);
59. United States v Havvard, 117 F Supp 2d 848, 852 (SD Ind 2000) (latent fingerprints).
60. See also generally Michael J. Saks and Jonathan J. Koehler, The Individualization Fallacy in Forensic Science Evidence, 61 Vand L Rev 199 (2008).
61. See, for example, People v Nelson, 185 P3d 49, 64 (Cal 2008) (discussing debates over various statistical methods of calculating DNA-match probabilities but assuming that testimony will be formulated on some sort of probability estimate).
62. See National Research Council, Strengthening Forensic Science in the United States: A Path Forward 141 (National Academy 2009);
63. Jennifer E. Laurin, Remapping the Path Forward: Toward a Systemic View of Forensic Science Reform and Oversight, 91 Tex L Rev 1051, 1060 (2013).
64. Frye, 293 F at 1014.
65. Daubert, 509 US at 591
66. citing United States v Downing, 753 F2d 1224, 1242 (3d Cir 1985).
67. Daubert, 509 US at 591 (observing that the language "'assist the trier of fact'. . goes primarily to relevance").
68. Jack B. Weinstein and Margaret A. Berger, 3 Weinstein's Evidence 702[02] at 702-18 (1988) ("Expert testimony which does not relate to any issue in the case is not relevant and, ergo, non-helpful.").
69. Carmel, 801 F2d at 998 n 1.
70. See Thomas D. Cook and Donald T. Campbell, Quasi-Experimentation: Design and Analysis Issues for Field Settings 51-54 (Houghton Mifflin 1979) (discussing generalization across persons, settings, and time).
71. For an excellent discussion and citation of authorities contrasting "differential diagnosis" and "differential etiology," see Justice Brent Benjamin's dissent in San Francisco v Wendy's International, Inc, 656 SE2d 485, 505-08 (W Va 2007) (Benjamin dissenting).
72. See Thomas B. Newman and Michael A. Kohn, Evidence-Based Diagnosis 3 (Cambridge 2009) ("[T]he reason for diagnosis is to make treatment decisions[;]. . diagnosing disease is important for treatment decisions because there are treatments that are beneficial in those who have a disease and not beneficial in those who do not.").
73. See Lujano v Town of Cicero, 2011 WL 6097719, *3 (ND Ill)
74. ("Ultimately, 'whether a witness is qualified as an expert can only be determined by comparing the area in which the witness has superior knowledge, skill, experience, or education with the subject matter of the witness's testimony.'"), quoting Carroll v Otis Elevator Co, 896 F2d 210, 212 (7th Cir 1990).
75. See Association for Molecular Pathology v United States Patent and Trademark Office, 669 F Supp 2d 365, 377-78 (SDNY 2009) (describing the use of multiple research teams to study the possibility of the correlation between genetics and an increased risk of cancer).
76. See, for example, Tillman v State, 354 SW3d 425, 438 n 10 (Tex Crim App 2011) (admitting expert testimony describing eyewitness testimony even though the expert did not conduct the studies himself).
77. See Clark v Edison, 881 F Supp 2d 192, 215 (D Mass 2012) (permitting such testimony).
78. Under Federal Rule of Evidence 704 experts may give testimony that "embraces an ultimate issue to be decided by the trier of fact." Wade v Haynes, 663 F2d 778, 783 (8th Cir 1981), affd 461 US 30 (1983).
79. Our own view is that ultimate issue testimony ought to be avoided unless it is clearly based on the "specialized knowledge" required by Rule 702. See Christopher Slobogin, The "Ultimate Issue" Issue,7 Behav Sci & L 259, 262 (1989).
80. Be that as it may, diagnostic experts are routinely asked to give this type of testimony in some contexts. See, for example, Patricia A. Zapf, et al, Have the Courts Abdicated Their Responsibility for Determination of Competency to Stand Trial to Clinicians?, 4 J Forensic Psychology Prac 27, 42 (2004) (finding that virtually all judges prefer or demand ultimate issue testimony on competency).
81. See Gary B. Melton, et al, Psychological Evaluations for the Courts: A Handbook for Mental Health Professionals and Lawyers 24 (Guilford 3d ed 2007) ("Mental health professionals should not perform evaluations of competency to stand trial without knowledge of the standard.").
82. Daubert, 509 US at 589-90, quoting FRE 702.
83. Daubert, 509 US at 590 & n 9.
84. Kumho Tire, 526 US at 152.
85. Daubert, 509 US at 594 ("The inquiry envisioned by Rule 702 is, we emphasize, a flexible one.").
86. The criterion of falsifiability provides that "[a] statement or theory is. . falsifiable if and only if there exists at least one potential falsifier-at least one possible basic statement that conflicts with it logically." Karl Popper, Realism and the Aim of Science xx (Rowman and Littlefield 1983) (W.W. Bartley III, ed).
87. Karl Popper, The Logic of Scientific Discovery 44 (Basic Books 1961).
88. See also Jason M. Chin, Psychological Science's Replicability Crisis and What It Means for Science in the Courtroom, Psychology, Pub Pol & L (forthcoming 2014), online at http://papers.ssrn.com/sol3/papers.cfm?abstract- id=2412985 (visited May 21, 2014).
89. Daubert, 509 US at 593
90. ("[A] key question to be answered in determining whether a theory or technique is scientific knowledge [is]. . whether it can be (and has been) tested.") (emphasis added). See also, for example, Miller v Pfizer, Inc, 196 F Supp 2d 1062, 1072 (D Kan 2002) (dismissing an expert's hypothesis-that the drug Zoloft induces suicidal ideation-because it was testable but had not been adequately tested).
91. See generally Jack W. Snyder, Silicone Breast Implants, 18 J Legal Med 133 (1997) (describing these and other types of studies).
92. This principle is referred to as "convergent validity." See William R. Shadish, Thomas D. Cook, and Donald T. Campbell, Experimental and Quasi-Experimental Designs for Generalized Causal Inference 350 (Houghton Mifflin 2d ed 2001).
93. See generally Christopher J. Ferguson, Violent Video Games and the Supreme Court, 68 Am Psychologist 57 (2013).
94. This lesson was on display in Brown v Entertainment Merchants Association, 131 S Ct 2729, 2739 (2011) (dismissing studies purporting to indicate a connection between exposure to violent video games and harmful effects on children because they merely "show at best some correlation between exposure to violent entertainment and minuscule real-world effects, such as children's feeling more aggressive or making louder noises in the few minutes after playing a violent game than after playing a nonviolent game").
95. Austin Bradford Hill, The Environment and Disease: Association or Causation, 58 Proceedings Royal Socy Med 295 (1965).
96. See also Thomas A. Glass, et al, Causal Inference in Public Health, 34 Ann Rev Pub Health 61, 63 (2013).
97. See Dunn v Sandoz Pharmaceuticals Corp, 275 F Supp 2d 672, 678-79 (MD NC 2003).
98. David H. Kaye, David E. Bernstein, and Jennifer L. Mnookin, The New Wigmore: A Treatise on Evidence: Expert Evidence § 10.5.1 at 98 (Aspen Supp 2013).
99. See, for example, Milward v Acuity Specialty Products Group, Inc, 639 F3d 11, 17-26 (1st Cir 2011), cert denied, 132 S Ct 1002 (2012) (reversing the district court exclusion of general causation expert testimony as an abuse of discretion, because experts claimed to use "weight of the evidence" methodology).
100. See also David L. Faigman, et al, 3 Modern Scientific Evidence: The Law and Science of Expert Testimony § 29:6 at 2-3 (West 2013) (criticizing Milward for confusing inference with a scientific methodology).
101. Daniel Kahneman and Gary Klein, Conditions for Intuitive Expertise: A Failure to Disagree, 64 Am Psychologist 515, 520 (2009).
102. For examples of such testing in the forensic arena, see Joseph L. Peterson, et al, Crime Laboratory Proficiency Testing Research Program 188-89 (National Institute of Law Enforcement and Criminal Justice 1978).
103. See also Florida v Harris, 133 S Ct 1050, 1058-59 (2013) (discussing methods of conducting proficiency testing on drug-sniffing dogs).
104. See, for example, John H. Blume, Sheri Lynn Johnson, and Christopher Seeds, Of Atkins and Men: Deviating from Clinical Definitions of Mental Retardation in Death Penalty Cases, 18 Cornell J L & Pub Pol 689, 700-01 (2009) (discussing the renorming of IQ tests for determining whether a person is intellectually disabled for death-penalty purposes).
105. See generally Douglas Mossman, Dustin B. Wygant, and Roger O. Gervais, Estimating the Accuracy of Neurocognitive Effort Measures in the Absence of a "Gold Standard," 24 Psychological Assessment 815 (2012). As one court stated, "Legal tests of criminal insanity are not and cannot be the result of scientific analysis or objective judgment.
106. There is no objective standard by which such a judgment of an admittedly abnormal offender can be measured." Sauer v United States, 241 F2d 640, 648 n 27 (9th Cir 1957)
107. quoting Holloway v United States, 148 F2d 665, 666 (DC Cir 1945).
108. Daubert, 509 US at 594 (citations omitted).
109. Although the Court mentioned error rates only briefly, this factor has become integral to the Daubert analysis and a considerable legal literature has been devoted to it. See generally D. Michael Risinger, Whose Fault?-Daubert, the NAS Report, and the Notion of Error in Forensic Science, 38 Fordham Urban L J 519 (2010).
110. Karen Raphael, Recall Bias: A Proposal for Assessment and Control, 16 Intl J Epidemiology 167, 167 (1987).
111. Unfortunately, some experts, and therefore courts, erroneously interpret this finding to mean that the "error rate" is 5 percent. See David Faust, et al, The Admissibility of Behavioral Science Evidence in the Courtroom: The Translation of Legal to Scientific Concepts and Back, 6 Ann Rev Clinical Psychology 49, 73 (2010).
112. See Jacob Cohen, A Power Primer, 112 Psychology Bull 155, 157 (1992) (suggesting benchmarks for interpreting Cohen's d effect sizes of .20 (designated a small effect size), .50 (medium), and .80 (large)).
113. See Elisabeth Cauffman and Laurence Steinberg, (Im)maturity of Judgment in Adolescence: Why Adolescents May Be Less Culpable than Adults, 18 Behav Sci & L 741, 752 (2000) (reporting these results).
114. See John Monahan, et al, Rethinking Risk Assessment: The MacArthur Study of Mental Disorder and Violence 126-27 (Oxford 2001).
115. See also Nicholas Scurich, John Monahan, and Richard S. John, Innumeracy and Unpacking: Bridging the Nomothetic/Idiographic Divide in Violence Risk Assessment, 36 L & Human Behav 548, 552 (2012) (reporting research on violence-risk assessment "asking empirically under what circumstances people apply group-level (i.e., actuarial) estimates to an individual member of the group").
116. Kumho Tire, 526 US at 151.
117. Daubert, 509 US at 594
118. citing United States v Williams, 583 F2d 1194, 1198 (2d Cir 1978).
119. See Robert G. Bone, Securing the Normative Foundations in Litigation Reform, 86 BU L Rev 1155, 1160 (2006) ("Procedure reduces. . the number of errors and thus the total harm that the system's errors create.").
120. See Arnold J. Rosoff, Evidence-Based Medicine and the Law: The Courts Confront Clinical Practice Guidelines, 26 J Health Polit Pol & L 327, 343 (2001).
121. See, for example, Kirk Heilbrun, Thomas Grisso, and Alan M. Goldstein, Foundations of Forensic Mental Health Assessment 5-10 (Oxford 2009);
122. Thomas Grisso, Forensic Evaluation of Juveniles 153 (Professional Resource 1998);
123. Jennifer L. Skeem and John Monahan, Current Directions in Violence Risk Assessment, 20 Curr Dir in Psychological Sci 38, 39 (2011).
124. See Maxwell J. Mehlman, Professional Power and the Standard of Care in Medicine, 44 Ariz St L J 1165, 1216-24 (2012) (reporting the extent to which medical evidence- based guidelines have influenced court decisions and describing the difficulties with ensuring the guidelines are based on good, up-to-date data).
125. See also Christopher Slobogin, Proving the Unprovable: The Role of Law, Science, and Speculation in Adjudicating Culpability and Dangerousness 64-71 (Oxford 2007) (describing and analyzing a proposal by Professor Daniel Fishman for establishing a computer-based method of accumulating psychological cases studies that can be used to hone procedures and establish professional standards).
126. The prestigious journal Nature has an excellent description of the peer review process on its website. See Peer-Review Policy (Nature Publishing Group 2013), online at http://www.nature.com/authors/policies/peer-review.html (visited May 21, 2014).
127. See, for example, Daubert v Merrell Dow Pharmaceuticals, Inc, 43 F3d 1311, 1318 (9th Cir 1995) (noting the absence of publications by the plaintiffs' expert in scientific journals).
128. Daubert, 509 US at 593-94 (recognizing that publication "does not necessarily correlate with reliability," but is nonetheless a "relevant. . consideration in assessing the scientific validity of a particular technique or methodology on which an opinion is premised.").
129. See, for example, Cicero v Borg-Warner Automotive, Inc, 163 F Supp 2d 743, 747-48 (ED Mich 2001) (noting that proffered expert, a law professor, had published only in student-edited law reviews).
130. See also Shari Seidman Diamond and Pam Mueller, Empirical Scholarship in Law Reviews, 6 Ann Rev L & Soc Sci 581, 592-93 (2010).
131. Daubert, 509 US at 593 (citations omitted).
132. See Rey v Texas, 897 SW2d 333, 338 (Tex Crim App 1995) (holding that pathology, in general, and psychiatry in particular, are both subspecialties of medicine that are not exact science like mathematics and therefore, there is a need for a second opinion).
133. See Jennifer L. Mnookin, et al, The Need for a Research Culture in the Forensic Sciences, 58 UCLA L Rev 725, 734-35 (2011);
134. See Sandy L. Zabell, Fingerprint Evidence, 13 J L & Pol 143, 178 (2005) ("ACE-V is an acronym, not a methodology.").
135. See Glenn Langenburg, Christophe Champod, and Pat Wertheim, Testing for Potential Contextual Bias Effects during the Verification Stage of the ACE-V Methodology When Conducting Fingerprint Comparisons, 54 J Forensic Sci 571, 571 (2009).
136. For instance, medical journals often include such case studies. See, for example, Sally Macintyre, et al, Using Evidence to Inform Health Policy: Case Study, 322 British Med J 222, 224 (2001).
137. See Paul S. Appelbaum, Policing Expert Testimony: The Role of Professional Organizations, 53 Psychiatric Services 389, 390 (2002).
138. See, for example, Saul M. Kassin, et al, On the "General Acceptance" of Eyewitness Testimony Research: A New Survey of the Experts, 56 Am Psychologist 405, 413-15 (2001).
139. See also Michael J. Saks, Forensic Identification: From a Faith-Based "Science" to a Scientific Science, 201 Forensic Sci Intl 14, 15 (2010).
140. See National Research Council, On the Theory and Practice of Voice Identification 68-69 (National Academy of Sciences 1979) (indicating that a group composed of acoustical engineers, physiologists, statisticians, and others gave a less favorable assessment of the technique than the narrower range of developers of the technique).
141. See Dan M. Kahan, Hank Jenkins-Smith, and Donald Braman, Cultural Cognition of Scientific Consensus, 14 J Risk Rsrch 147, 157-66 (2011);
142. Philip E. Tetlock, Gregory Mitchell, and L. Jason Anastasopoulos, Detecting and Punishing Unconscious Bias, 42 J Legal Stud 83, 93-102 (2013).
143. See, for example, Katrina Rufino, et al, When Experts Disagreed, Who Was Correct? A Comparison of PCL-R Scores from Independent Raters and Opposing Forensic Experts, 36 L & Human Behav 527, 535 (2012).
144. See, for example, National Research Council, The Polygraph and Lie Detection (National Academies 2003), online at http://www.nap.edu/catalog.php? record-id=10420 (visited May 21, 2014).
145. As it has. See generally Institute of Medicine, Treatment for Posttraumatic Stress Disorder in Military and Veteran Populations: Initial Assessment (National Academies 2012). A second report on this topic is scheduled to be released by the Institute of Medicine (IOM) in 2014.
146. Kumho Tire, 526 US at 151.
147. For such a format, see Ira K. Packer, Evaluation of Criminal Responsibility 30-31 (Oxford 2009).
148. Kumho Tire, 526 US at 152.
149. See, for example, Jenkins v Bartlett, 487 F3d 482, 489 (7th Cir 2007).
150. See Daubert, 43 F3d at 1317 n 5 ("Fingerprint analysis, voice recognition, DNA fingerprinting and a variety of other scientific endeavors closely tied to law enforcement may indeed have the courtroom as a principal theatre of operations.").
151. Jeff Eckhoff, Update: Polk Judge Rules That "Uncommon Approach" to Class- Action Racial Bias Case Fell Short of the Law, Des Moines Register Blog (Des Moines Register Apr 17, 2012), online at http://blogs. desmoinesregister.com/dmr/index.php/2012/04/17/polk-co-judge-rejects-class- action-lawsuit-alleging-that-state-government-discriminated-against-blacks (visited May 21, 2014).
152. Kumho Tire, 526 US at 152.
153. Kenneth S. Abraham, Custom, Noncustomary Practice, and Negligence, 109 Colum L Rev 1784, 1785 (2009).
154. See Kumho Tire, 526 US at 151.
155. See, for example, Ronald Allen, Expertise and the Supreme Court: What Is the Problem?, 34 Seton Hall L Rev 1, 9 (2003) (stating that "my present view is that a person who cannot explain the basis of testimony in an accessible fashion or explain how it can be verified ought not be allowed to testify").
156. Daubert, 509 US at 591.
157. See Jack B. Weinstein and Margaret A. Berger, 4 Weinstein's Federal Evidence 702-41 at § 702.03[2][a] (Lexis 2d ed 2013) ("Proffered expert testimony should be excluded when it will not help the trier of fact to any degree beyond the assistance that the lawyers representing the parties could provide during their closing arguments.").
158. See Brandon L. Garrett, The Substance of False Confessions, 62 Stan L Rev 1051, 1062-66 (2010).
159. See David H. Kaye and George Sensabaugh, Reference Guide on DNA Identification, in Reference Manual on Scientific Evidence 129, 134 (National Academies Press 3d ed 2011).
160. See, for example, People v Enis, 564 NE2d 1155, 1165 (Ill 1990) (upholding the trial court's exclusion of testimony on eyewitness identification because "[i]t would be inappropriate for a jury to conclude, based on expert testimony, that all eyewitness testimony is unreliable").
161. See Commonwealth v Harrell, 65 A3d 420, 431 (Pa Super 2013) (excluding framework testimony about false confessions because "the testimony could confuse the issue by suggesting causal relationships which are not borne out by the research actually conducted").
162. See Commonwealth v Seese, 517 A2d 920, 922 (Pa 1986) (excluding testimony about the characteristics of a sexual abuse victim because it "would encourage jurors to shift their focus from determining the credibility of the particular witness who testified at trial, allowing them instead to defer to the so-called 'expert' assessment of the truthfulness of the class of people of which the particular witness is a member.").
163. See Flanagan v State, 625 S2d 827, 828-29 (Fla 1993) (holding testimony based on "sex offender profile" inadmissible in part because "[e]stablishing that a defendant has a certain character trait in order to show he acted in conformity with that trait on a certain occasion is forbidden by the rules of evidence").
164. See, for example, Barefoot v Estelle, 463 US 880, 901 (1983) (stating that "the adversary process" can "be trusted to sort out the reliable from the unreliable evidence and opinion about future dangerousness, particularly when the convicted felon has the opportunity to present his own side of the case").
165. Clark, 548 US at 793 (Kennedy dissenting)
166. quoting United States v Booker, 543 US 220, 289 (2005) (Stevens dissenting).
167. See Christopher Slobogin, The Supreme Court's Recent Criminal Mental Health Cases, 22 Crim Just Magazine 8, 12 (2007) (arguing that Clark "exaggerates the gullibility of judges and juries about psychiatric evidence; research shows that laypeople are very skeptical about such evidence, especially when it is presented by the defense").
168. Daubert, 509 US at 594 ("The inquiry envisioned by Rule 702 is, we emphasize, a flexible one.").
169. See Christian A. Meissner and John C. Brigham, Thirty Years of Research on the Own-Race Bias in Memory for Faces: A Meta-analytic Review, 7 Psychology Pub Pol & L 3, 13 (2001) (describing 39 research studies, all of which involved laboratory methodology).
170. Malpass, Validity of the Mock Witness Paradigm: Testing the Assumptions, 26 L & Hum Behav 439 (2002) (describing research suggesting good external validity using mock witnesses).
171. But see Deborah Bartolomey, Cross-Racial Identification Testimony and What Not to Do About It: A Comment on the Cross-Racial Jury Charge and Cross-Racial Expert Identification Testimony, 7 Psychology Pub Pol & L 247, 249 (2001) (arguing that the research does not translate to real-world cases).
172. See State v Clopten, 223 P3d 1103, 1113 (Utah 2009) (noting that "trial judges have often excluded eyewitness experts on grounds that the testimony will not be helpful to the jury," but concluding, to the contrary, that "[a]s the research makes clear, the topics covered by eyewitness experts are often beyond the common knowledge of ordinary jurors and usually cannot be effectively elicited through cross-examination alone").
173. Susan T. Fiske and Eugene Borgida, Standards for Using Social Psychological Evidence in Employment Discrimination Cases, 83 Temple L Rev 867, 875-76 (2011) (emphasis added; emphasis omitted).