Federal and State Trial Judges on the Proffer and Presentation of Expert Evidence

The landmark 1993 decision in Daubert v. Merrell Dow Pharmaceuticals, Inc. affirmed the role of trial court judges as "gatekeepers" in determining the admissibility of scientific testimony. Since Daubert, commentators have expressed concern about judges' ability to perform this gatekeeping function and have suggested alternate methods for determining the admissibility of scientific evidence. To begin to address what judges are actually doing to manage the proffer and presentation of expert evidence that comes before them, data from a survey of federal judges were compared with data from a survey of state trial court judges conducted in 1998-99 after Daubert but while the Kumho case (1999) was being decided. Analysis focuses on the strategies judges reported using when expert testimony was proffered, as well as strategies used to manage the presentation of evidence once admitted. While the ability to draw direct comparisons between the two study populations is limited because of differences in the scope and methodologies of the studies, the findings provide important baseline information against which future studies of judicial management of expert evidence may be compared.