Asking the gatekeepers: a national survey of judges on judging expert evidence in a post-Daubert world.

Drawing on the responses provided by a survey of state court judges (N = 400), empirical evidence is presented with respect to judges' opinions about the Daubert criteria, their utility as decision-making guidelines, the level to which judges understand their scientific meaning, and how they might apply them when evaluating the admissibility of expert evidence. Proportionate stratified random sampling was used to obtain a representative sample of state court judges. Part I of the survey was a structured telephone interview (response rate of 71%) and in Part II, respondents had an option of completing the survey by telephone or receiving a questionnaire in the mail (response rate of 81%). Survey results demonstrate that judges overwhelmingly support the "gatekeeping" role as defined by Daubert, irrespective of the admissibility standard followed in their state. However, many of the judges surveyed lacked the scientific literacy seemingly necessitated by Daubert. Judges had the most difficulty operationalizing falsifiability and error rate, with only 5% of the respondents demonstrating a clear understanding of falsifiability and only 4% demonstrating a clear understanding of error rate. Although there was little consensus about the relative importance of the guidelines, judges attributed more weight to general acceptance as an admissibility criterion. Although most judges agreed that a distinction could be made between "scientific" and "technical or otherwise specialized" knowledge, the ability to apply the Daubert guidelines appeared to have little bearing on whether specific types of expert evidence were designated as "science" or "nonscience." Moreover, judges' "bench philosophy of science" seemed to reflect the rhetoric, rather than the substance, of Daubert. Implications of these results for the evolving relationship between science and law and the ongoing debates about Frye, Daubert, Joiner, and Kumho are discussed.

The globalization of behavioral science evidence about battered women: a theory of production and diffusion.

A theoretical framework is proposed for understanding how the innovative use of behavioral science evidence is both produced and diffused among members of the global legal community. Using case law analyses and interviews with key individuals involved in selected cases, we examine how battered woman syndrome (BWS) is produced and diffused between and among Australia, Canada, England, and the United States. The following diffusion mechanisms are proposed: (1) The availability and accessibility of credible dissemination sources; (2) characteristics of the overall practice environment operating in each legal culture; (3) the attitudes and knowledge of attorneys and judges about the use of scientific evidence; (4) political and social support for the use of the evidence in the legal culture; and (5) the level of structural equivalence, communication, and "neighbor effects" between and among legal cultures. Each mechanism is discussed and supplemented with information from interviews with individuals involved in key cases involving BWS evidence.