The District’s highest court on Tuesday considered whether to change the rules for screening out “bad science” from trials and to adopt the standards used in most states and federal courts.
Local prosecutors and public defenders had urged the D.C. Court of Appeals to switch to what they consider more-rigorous rules for filtering expert testimony that juries weigh at trial and to give judges a more robust role as “gatekeepers.”
The case before the appellate court involves the question of whether cellphones can cause brain cancer. Plaintiffs have sued cellphone manufacturers and providers in D.C. Superior Court alleging that long-term exposure to cellphone radiation causes brain tumors.
The appellate court will not rule on that specific issue, but the full court is taking the opportunity to weigh how judges decide which expert witnesses are allowed to testify.
“We’re all interested in having more-reliable testimony in court,” said Judge Catharine F. Easterly, who had tough questions for both sides during Tuesday’s oral arguments before a panel of seven judges.
The guidelines for how a judge should distinguish between good and bad science have long been the subject of debate and are a critical procedural matter for criminal trials and product liability lawsuits. Under the standard used in the District, Illinois and a small number of other states, the judge determines whether a methodology or theory has gained “general acceptance” in the expert’s field. The test is known as Frye, a reference to a 1923 D.C. Circuit case.
After a landmark 1993 Supreme Court case, Daubert v. Merrell Dow Pharmaceuticals, federal courts — and now the majority of states — adopted a more extensive test, making the judge the “gatekeeper” for ensuring that the scientific evidence is “not only relevant, but reliable.”
Lawyers from D.C.’s Public Defender Service said in court papers that the rules for admitting experts are particularly important in criminal cases because juries often rely heavily on scientific evidence and because unreliable forensic evidence is a leading cause of wrongful convictions.
“Innocent defendants can lose their liberty based on faulty forensic evidence,” according to the defenders’ court filing, which cites techniques such as bite-mark analysis and hair and handwriting identification.
During oral arguments, Easterly referenced the wrongful convictions of District men who served long sentences based on flawed forensic evidence. The D.C. government announced last week that it would pay more than $16 million to settle a federal lawsuit by a man who served 27 years in prison for rape and murder after being framed by police and convicted on a faulty FBI hair match.
“Why shouldn’t we be concerned about the decades in which criminal defendants were convicted under faulty forensic science?” Easterly asked.
The appeal was prompted by an August 2014 opinion by Superior Court Judge Frederick H. Weisberg. He took the unusual step of expressing his preference for the federal test and highlighted his awkward position in the cellphone case.
On one hand, Weisberg said, there is not enough evidence for any scientist to conclude with certainty that cellphones cause brain cancer. On the other, because of the District’s standards for admitting evidence, Weisberg said he would permit the testimony of five experts who would say in effect that cellphones are more likely than not to cause or promote certain brain tumors.
But Weisberg also noted that in a federal courtroom, that testimony was unlikely to be aired.
Attorneys for the 13 plaintiffs and a local organization of trial lawyers had urged the court in its filings to keep the standard, which lawyer Jeffrey B. Morganroth said Tuesday is “working just fine.”
Plaintiffs’ attorneys, representing people who suffer from or have died from brain tumors, said any change would be a “drastic departure” from current practice.
At least two judges — Corinne A. Beckwith and Anna Blackburne-Rigsby — expressed concern about undercutting the role of juries and burdening local judges by giving them a more extensive role.
Judge John R. Fisher also said he was sympathetic to the suggestion by plaintiffs that the federal standard had been applied inconsistently depending on the jurisdiction.
Lawyer James F. Green, representing some of the plaintiffs, suggested that the court appoint an advisory committee before contemplating such a major change.
Easterly said the court had already heard in briefings from most of the interested parties. A committee, she said, would only delay a decision about what standard the city should have to “ensure reliability in its courts.”
There is no set schedule for how soon the court must rule on the appeal.