Current Status of the Admissibility of Expert Testimony AfterDaubertandJoiner

On December 15, 1997, in General Electric Co. v. Joiner, the Supreme Court held that the appropriate level of review for district court judges in matters involving the admissibility of expert evidence under the Daubert standard is merely ‘abuse of discretion’ and not a more stringent level of review. Thus, appellate courts may alter district court rulings on expert testimony only if clearly erroneous or if the wrong legal standard was applied. This decision effectively grants wide discretion to the trial judge in the application of the Daubert standard. Currently, all federal courts and 33 states now use at least some version of the Daubert standard, while 17 states continue to use the ‘older’ Frye standard. Unfortunately, there is an unresolved split within the Circuit Courts of Appeals on whether the Daubert standard should narrowly apply only to scientific expert testimony, or broadly extend to all expert witness testimony based upon scientific, technical, or other specialized knowledge. The Supreme Court may be needed to resolve this fundamental issue. As a consequence, the potential admissibility of expert testimony by a psychologist based upon clinical knowledge currently remains uncertain and adequate preparation for its admission problematic. Therefore, common factors comprising the Daubert standard and related rules of evidence, as used by trial judges in civil or criminal proceedings, are provided as a guide for the preparation of expert testimony. Also, the admissibility of neuropsychological evidence in administrative law proceedings (e.g., Social Security cases) is briefly reviewed.