Stating what should be obvious, Judge Posner noted that the “[l]aw lags science, it does not lead it.” Rosen v. Ciba Geigy, 78 F.3d 316, 319 (7th Cir. 1996). Science as a method and a process has long ago moved away from authoritative pronouncements. Since 1663, the Royal Society has sported the motto: “Nullius in verba.” When confronted with a pamphlet entitled “100 Authors against Einstein,” Albert Einstein quipped “if I were wrong, one would have been enough.” See Remigio Russo, 18 Mathematical Problems in Elasticity 125 (1996) (quoting Einstein). Disputes in science are resolved with data, from high-quality, reproducible experimental or observational studies, not with appeals to the prestige of the speaker.
Almost 20 years ago, the Supreme Court, in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), redirected the course of the federal system of evidence, which had exalted expert witness opinion over knowledge. The Court attempted to put expert witness testimony on the same footing as knowledge, or true justified belief, as required by the plain language of Rule 702. The Court’s leadership culminated in today’s revised Federal Rule of Evidence 702.
Many rules of evidence, however, remain mired in the “trust me” authoritarian regime of subjective opinion. Recently, the Committee on Rules of Practice and Procedure has approved draft amendments to three rules with built-in “trustworthiness” elements:
· Rules 803(6) (Records of a Regularly Conducted Activity),
· FRE 803(7) (Absence of a Record of a Regularly Conducted Activity), and
· FRE 803(8) (Public Records).
Public comment on the draft rules closes on February 13, 2012. The amendments are designed to make clear that the party against whom the business or public record is offered must show the untrustworthiness of the record to keep the record out of evidence. These exceptions to the rule against hearsay are problematic because medical records and governmental reports may be larded with subjective opinions that would never pass Rule 702 scrutiny.
There is something peculiar about this aspect of the federal rules and its insistence that a party, facing the admission of evidence, must show the absence of trustworthiness. These exceptions to the rule against hearsay, dealing with public and business records, are not alone in employing trustworthiness of the source as a proxy for the truth. For many years, Rule 703 was viewed as an exception to the rule against hearsay, with the predicate to admissibility being the reliance by a party’s expert witness. The changes wrought by Daubert made this interpretation of Rule 703 untenable, and today, the text of the rule ensures against this once popular evidentiary fallacy. In hindsight, the use of a party’s hired witness to provide the predicate for admissibility seems a fairly primitive move within the Federal Rules of Evidence.
This pending revision to the Federal Rules of Evidence ignores another trustworthiness-based rule, Rule 803(18), which creates limited admissibility for “statements in learned treatises, periodicals, or pamphlets.” This rule does require the proponent to present expert witness testimony to qualify the source, or to seek judicial notice of “learnedness,” which has been interpreted to be a proxy for trustworthiness and knowledge. As such, the rule represents a major gap in the requirement that the proponent of scientific testimony show its epistemic warrant. Statements in treatises or periodicals are often made in conclusory fashion, without a complete explication of their bases. See Schachtman, “Further Unraveling of the Learned Treatise Exception” (Sept. 29, 2010); “The New Wigmore on Learned Treatises” (Sept. , 2011); and “Unlearning The Learned Treatise Exception” (Aug. 21, 2010).
Even within the current framework of judicial decisions interpreting Rule 702, courts still struggle when faced with appeals to authority, especially in the field of clinical medicine. Courts have a difficult time getting past: “Trust me, I am a physician.” See, e.g., Mueller v. Auker, No. 11-35351, ___ F.3d ___, 2012 WL 3892960 at *8 (9th Cir. Sept. 10, 2012) (noting that “clinical instinct” is a generally accepted method of decision making by physicians). The evidence-based worldview continues to challenge, confound, and confuse judges.
