Judge said pimp's "expert" testimony would be 'confusing' to jury

[Barrister]

The Daubert standard? That's the federal one? How can the Daubert standard be used in cases where there is no peer review and no science has been done? While the defendant claims that there is a society of Pimps, it doesn't seem to do any academic work to set the standard for the Daubert standard to use? In a sense, my understanding of the Daubert standard is that there must be a standard set by peer review and that standard must conform to standard scientific standards (if the repeated use of the word standards hasn't confused you yet).

Daubert standard does not require peer review.  Anyways, Daubert (at least up here) is only referred to in looking at the admissibility of novel science.

In Canada expert evidence is governed by Mohan, which states any proposed expert evidence must be

1. relevant
2. necessary to assist the trier of fact
3. not otherwise excluded; and
4. from a properly qualified expert

Seems like our accused pimp's evidence may well run afoul of relevance, and is almost certainly not from a properly qualified expert.

[Viking]

As a scientifically skeptically (sic.) minded person Daubert seems to rest on Peer Review. Even if there are other factors, each of those factors rests on peer review. It includes the Kuhnian (science is what scientists say it is), Popperian (science is a consequential statement that can be proven wrong) and of all things f.f.s. a Feyerabendite (science is what works beeyotch!) view of science. This is an advance on what to the best of my knowledge the Frye standard is, which is merely Kuhnian. Given this is a legal rule the Feyerabendite bit seems to be most important (even though Feyerabend is scum and his work is meaningless twaddle which has no positive consequences)(note, declaring bias, any philosopher or linguist at any Institute of Technology is scum) since that seems to be the only condition (apart from the Judge's common sense; hardly the most reliable standard for knowledge) that keeps out Astrologers, Psychics and assorted scumbags out of the witness chair. To determine if each of the factors permitting an expert witness to make testimony the acceptance under peer review (as well a citations) would be the determining factors.

How do we know what the error rate is? It was checked by other experts - that is Peer Review
How do we know that it was subjected to empirical tests? It was checked by other experts - that is Peer Review
The standards that must exists under Daubert were checked by other experts - that is Peer Review
The degree to which it is accepted? - that is citations using the paper to support other papers.

Peer Review is the smallest keyhole here for the expert to pass through and Peer Review is what all the other keyholes rely on as well. I like the Daubert standard it solves the demarcation problem for science (what is and what is not science) pretty well.


http://en.wikipedia.org/wiki/Daubert_standard

[Barrister]

Viking, peer review was one of many factors to be considered under Daubert.

I don't have easy access to US caselaw, but Daubert has been partially adopted in Canada.  From the summary in R v J-L.J. [2000] SCC 51

(1)   whether the theory or technique can be and has been tested:

Scientific methodology today is based on generating hypotheses and testing them to see if they can be falsified; indeed, this methodology is what distinguishes science from other fields of human inquiry.

(2)   whether the theory or technique has been subjected to peer review and publication:

submission to the scrutiny of the scientific community is a component of "good science," in part because it increases the likelihood that substantive flaws in methodology will be detected.

(3)   the known or potential rate of error or the existence of standards; and,

(4)   whether the theory or technique used has been generally accepted:

A "reliability assessment does not require, although it does permit, explicit identification of a relevant scientific community and an express determination of a particular degree of acceptance within that community."

                                                                  . . .

Widespread acceptance can be an important factor in ruling particular evidence admissible, and "a known technique which has been able to attract only minimal support within the community," . . . may properly be viewed with skepticism.

http://canlii.ca/en/ca/scc/doc/2000/2000scc51/2000scc51.html

Your assertion that the entire thing rests on peer review is simply not supported by the language of Daubert.

Besides, some very poor science has been published in peer reviewed journals, and some very excellent work has not (for a variety of reasons).

And in discussing law, please don't give links to Wiki for anything but the most basic proposition.  Thanks.

[Viking]

I'm an engineer I operate on merely the most basic level. I'm not a linguist so I can't be sure that when you say

Daubert standard does not require peer review.

what you really mean is

peer review was one of many factors to be considered under Daubert.

if what you mean is that peer review can be dismissed if there is good reason to I can of course agree with that. Again, my caveat from earlier

Daubert seems to rest on Peer Review.

this is not merely a case of me hedging against my lack of knowledge on the topic, this is also an expression of the tentativeness of the argument that I was making, that all the other considerations to be taken into account apart from general acceptance are directly determined using peer review.

[Capetan Mihali]

Since it's a Supreme Court case, Daubert is easily available online.

Here is Blackmun's main paragraph on peer review (with the citations omitted by me), as far as I can tell from skimming it again:

Another pertinent consideration is whether the theory or technique has been subjected to peer review and publication. Publication (which is but one element of peer review) is not a sine qua non of admissibility; it does not necessarily correlate with reliability, see ..... Some propositions, moreover, are too particular, too new, or of too limited interest to be published. But submission to the scrutiny of the scientific community is a component of "good science," in part because it increases the likelihood that substantive flaws in methodology will be detected. See ...... The fact of publication (or lack thereof) in a peer reviewed journal thus will be a relevant, though not dispositive, consideration in assessing the scientific validity of a particular technique or methodology on which an opinion is premised.

[Capetan Mihali]

From the Syllabus:

Held:

The Federal Rules of Evidence, not Frye, provide the standard for admitting expert scientific testimony in a federal trial. Pp. 4-17.

.........

      (c) Faced with a proffer of expert scientific testimony under Rule 702, the trial judge, pursuant to Rule 104(a), must make a preliminary assessment of whether the testimony's underlying reasoning or methodology is scientifically valid and properly can be applied to the facts at issue. Many considerations will bear on the inquiry, including whether the theory or technique in question can be (and has been) tested, whether it has been subjected to peer review and publication, its known or potential error rate and the existence and maintenance of standards controlling its operation, and whether it has attracted widespread acceptance within a relevant scientific community. The inquiry is a flexible one, and its focus must be solely on principles and methodology, not on the conclusions that they generate. Throughout, the judge should also be mindful of other applicable Rules. Pp. 12-15.