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Daubert and Boston

Last week I discussed State v. Boston and the rule that expert witnesses can't testify as to the veracity of a child claiming sexual abuse, a rule that survives despite a contention in a recent 8th District case that it doesn't apply when the child victim testifies.  Boston, of course, doesn't prohibit expert testimony on whether abuse occurred.

This got me to wondering what the experience has been with requesting the trial court to hold a Daubert hearing prior to allowing the experts to testify.  Daubert v. Merrell Dow Pharmaceuticals was the 1993 US Supreme Court case which reframed the qualifications necessary for the admissibility of expert testimony under Evid. R. 702.  Daubert was approved by the Ohio Supreme Court in Miller v. Bike Athletic Co. in 1998, and basically sets forth these criteria for admission of expert testimony:  (1) whether the theory or technique has been tested, (2) whether it has been subjected to peer review, (3) whether there is a known or potential rate of error, and (4) whether the methodology has gained general acceptance.

That's not quite as limiting as it might seem; the test isn't meant to be applied strictly, and in fact it's a relaxation of the long-running Frye test, that to be admissible the expert's view has to have gained "general acceptance in the scientific community."

Still, it's not uncommon for attorneys to request a Daubert hearing in cases involving the more exotic subjects of expert testimony.  Indeed, in this case last year from the 11th District, the defense requested, and got, a hearing on the admissibility of a nurse's testimony in a child sex abuse case.

The problems with a diagnosis of sex abuse based upon interviews of a child, the use of anatomic dolls, or upon the child's behavior are well-chronicled, as indicated by Judge Resnick's dissent in State v. SowersWhat's more, as indicated by what happened in this case, social workers and police officers can engage in interrogation techniques that are shockingly prejudicial.

That's not to suggest that the courts are going to grant you a hearing, and there's no case law to indicate that their failure to do so is going to be regarded as error.  Still, it doesn't hurt to ask.  The worst case scenario is that you're in the same position you were in before, the second worst is that at least you get a free shot at the state's experts, and the best is that you get their testimony thrown out.

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