LAW OF COMPUTER TECHNOLOGY FALL 2015 © 2015 MICHAEL I. SHAMOS Scientific Evidence Michael I....

LAW OF COMPUTER TECHNOLOGY FALL 2015 © 2015 MICHAEL I. SHAMOS

Scientific Evidence

Michael I. Shamos, Ph.D., J.D.Institute for Software ResearchSchool of Computer ScienceCarnegie Mellon University


Opinion Testimony

• Many elements in proving cases are matters of opinion:– Was she sane when she made her will?– Did death result from an overdose of medication?– Does this electronic circuit make use of Plaintiff’s

trade secrets?• How is opinion evidence presented to a court?• Fact witnesses are highly limited in their ability to

give opinion testimony• It usually must be given by experts


Opinion Testimony

“If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are

(a) rationally based on the perception of the witness, and

(b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and

(c) not based on scientific, technical, or other specialized knowledge”

Federal Rule of Evidence 701


Expert Computer Opinions

• ALL REQUIRE SCIENTIFIC OR TECHNICAL KNOWLEDGE

• Examples:– Does this software infringe Plaintiff’s patent?– Does this software comply with its specifications?– Why does this computer program infringe Plaintiff’s

copyright – Have these emails had their creation dates altered?– Is this data mining technique a trade secret?– Did the survey reveal if the public was likely to believe

zippo.com is associated with Zippo Manufacturing?


Admissible Lay Opinions

• Boy who witnessed an auto accident could testify to the speed of a vehicle prior to the collision

• Witnesses were allowed to testify that a participant in a bar fight was “boisterous” and “acting in an arrogant manner”

• Homeowner could give an opinion of her home's fair market value it was damaged, in view of her familiarity with neighborhood real estate prices, length of her residency and employment in the town, and conversations with neighbors before the damage

• Lay witnesses cannot base opinions on scientific, technical or specialized knowledge

Frye v. United States293 F. 1013 (App. D.C. 1923)

• Frye was convicted of second degree murder• At his trial, the judge refused to allow expert testimony on the

“systolic blood pressure deception test.” Experiments showed that if someone is lying, his blood pressure goes up. (Predecessor of the lie detector test.)

• Frye took the test before trial and passed, and offered the expert who administered the test

• On appeal: “We think the systolic blood pressure deception test has not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made.” Conviction affirmed.


Frye v. United States

• “Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.”

Conviction affirmed.


Expert Testimony

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if:(1) the testimony is based upon sufficient facts or data,(2) the testimony is the product of reliable principles and methods, AND(3) the witness has applied the principles and methods reliably to the facts of the case

FRE 702


The Daubert Test• The Frye “general acceptance” test set the standard for

expert testimony for 70 years. The Federal Rules of Evidence were adopted in 1975

• Did they or did they not alter the Frye test?• This was not decided until the Daubert case in 1993• Under Daubert, the judge makes a “preliminary

assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue”

• Pennsylvania and 24 other states still use a version of Frye.

Daubert v. Merrell DowPharmaceuticals

509 U.S. 579 (1993)

• Jason Daubert was born with birth defects which he claimed was caused by the drug Bendectin.

• He sued the manufacturer, Merrell Dow • Merrell Dow submitted expert testimony that that no

published scientific study demonstrated a link between Bendectin and birth defects.

• Daubert submitted expert evidence of their own that suggested that Bendectin could cause birth defects, based on animal studies, pharmacological studies, and re-analysis of other published studies, and these methodologies had not yet gained acceptance within the general scientific community.

Daubert v. Merrell DowPharmaceuticals

• Following Frye, the District court refused to admit the testimony of Daubert’s witness and gave judgment for Merrell Dow

• The Ninth Circuit affirmed• Daubert appealed to the Supreme Court• The Court held, “The Federal Rules of Evidence, not Frye,

provide the standard for admitting expert scientific testimony in a federal trial … ‘General acceptance" is not a necessary precondition to the admissibility of scientific evidence under the [Rules]’”

• Created a new set of tests for expert testimony• VACATED the judgment and REMANDED the case• Daubert lost again under the new standard


Daubert Tests• Standard is whether testimony is relevant and reliable.• Trial judge is to act as a gatekeeper to exclude unreliable

methods• Non-exclusive reliability factors:

– Can the technique be or has it been tested?– Has the technique been through peer review?– Is there a known or potential error rate of using the

technique?– Are there published standards controlling its use?– Has the theory or technique has gained “general

acceptance” within the relevant scientific community. (Frye)


Mike’s Train House v. Lionel472 F.3d 398 (6th Cir. 2006)

• Both parties make model toy trains• Mike’s Train House sued Lionel for misappropriation of

trade secrets (over 3000 detailed train design drawings)

• The jury awarded Mike’s over $40 million• The judge allowed Dr. Jeffrey Stein, a mechanical

engineering professor at U. of Michigan, to testify that Lionel’s drawings had been copied from Mike’s.

• Stein created a method just for this purpose


Mike’s Train House v. Lionel• Stein examined two sets of design drawings, one from [each

party], concerning ten different train models, for a total of 162 pairs of drawings

• His evaluation was based on 21 self-selected criteria, including the drawing’s title and the part number assigned to the drawing.

• Stein calculated a score from 0 to 1 based on the criteria; 0 indicated no association between the drawings, and 1 indicated an extremely high association … “~55% … were copied … [D]esigners working independently to develop similar design drawings of the same train would not develop identical or substantially similar drawings”

Mike’s Train House v. Lionel

• “We conclude that the district court abandoned its gate-keeping function by failing to make any findings regarding the reliability of Stein’s testimony. The district court allowed Stein to testify as to his opinion of Lee’s report, but failed to make specific findings regarding the reliability of Stein’s own technique for comparing the design drawings.”


Mike’s Train House v. Lionel

• “Stein created the criteria with which he compared the design drawings; however, there is no evidence that his methodology had ever been tested, subjected to peer review, possessed a known or potential rate of error, or enjoyed general acceptance. Although it is true that “in some instances well-grounded but innovative theories will not have been published,” … the novelty of a theory does not shield an expert’s testimony from judicial scrutiny.”

• REVERSED


U.S. v. Frabizio(D. Mass 2006)

• Frabizio was charged with possessing child pornography

• The prosecution must prove that the images are of real children (not computer-generated images)

• The U.S. offered the testimony of Dr. Farid, who claimed to have written “a mathematical programming code capable of determining whether electronic images of children are computer-generated or depict actual children”

• Frabizio challenged Farid on Daubert grounds, that his method was not reliable


U.S. v. Frabizio• A demonstration was held in Court• 30 percent of the time, Farid's program classified a real

photograph as a computer-generated image. In one case it classified a cartoon character as real

• The U.S. withdrew Dr. Farid as a witness during the demo• Next, the U.S. tried to introduce the testimony of Musheno

a forensic examiner of photographic evidence in the FBI's Forensic Audio, Video, and Image Analysis Unit.

• Musheno visually examined the photographs and without using any specialized equipment, concluded that 6 of 19 images were real and 10 “appeared to be real”

U.S. v. Frabizio• Musheno’s “methodology is not adequate to support the

conclusions he so confidently offers; that the images downloaded from the internet are real children or appear to be real children. With Musheno offered as the government's sole expert, his testimony is not adequate to answer the question before the jury: whether images are real or virtual. It is therefore inadmissible in its entirety.”

• Next, the U.S. tried to offer testimony of a pediatrician as to the ages of the children, based on “anatomical and medical features”

• Excluded because it would suggest that the images were real.

• The U.S. went to trial with NO experts. Frabizio was convicted.

U.S. v. Frabizio Jury Verdict Form


Expert Disclosure

• An expert witness must provide “a written report prepared and signed by the witness.”

• “The report shall contain– a complete statement of all opinions to be expressed

and the basis and reasons therefor;– the data or other information considered by the

witness in forming the opinions;– any exhibits to be used as a summary of or support

for the opinions;


Expert Disclosure

• The report must also contain:• “the qualifications of the witness, including a list of all

publications authored by the witness within the preceding ten years;

• the compensation to be paid for the study and testimony; and

• a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.”

F.R.C.P §26(a)(2)


Major Ideas

• Only experts can give scientific opinions• Scientific and technical testimony must be screened

carefully• Lay jurors can easily be misled by “authoritative”

witnesses• Court must make sure “junk science” does not creep in,

so serves as a gatekeeper for testimony• The Frye test is “generally accepted” scientific method• The Daubert test is “relevant and reliable,” a weaker

standard


QA&

Post-Daubert Cases• Daubert II, 43 F.3d 1311 (9th Cir. 1995), on remand

– Did the expert conduct independent research or research just for this litigation?

– If the research was done for litigation, the proponent must offer objective, verifiable evidence of scientific validity.

– One way to show this is by showing that the research relied upon and the analysis conducted has been subject to peer review.

– Without peer review, testimony may be admitted if experts explain precisely how they went about reaching their conclusions and point to some objective source to show that they followed a scientific method.

• Kumho Tire Company v. Carmichael, 526 U.S. 137 (1999).– Daubert applies to all expert testimony, not just scientific testimony.


Post-Daubert Cases• Clausen v. M/V New Carissa, 339 F.3d 1049 (9th Cir.

2003).• (Clausen owned oyster beds off Oregon. He sued the

ship New Carissa, which spilled oil, which he alleged killed his oyster beds. Experts testified to causation.)

• Has the expert adequately accounted for obvious alternative explanations?

• The expert cannot “utterly fail” to explain why an alternative cause was ruled out.

• The expert’s reasons for ruling out an alternative explanation cannot be based upon subjective beliefs or unsupported speculation.


Cmwlth. of Pennsylvania v. Serge896 A.2d 1170 (Pa. 2006), cert. den. (2006)

• Serge was sentenced to life for first degree murder• At trial, the state’s expert was permitted to show a

computer animation (CGA) of the state’s theory of the crime

• Court required the state to authenticate the animation as both a fair and accurate depiction of expert reconstructive testimony and exclude any inflammatory features that may cause unfair prejudice.

• Court required the state to provide Serge with the CGA before trial.

Cmwlth. of Pennsylvania v. Serge896 A.2d 1170 (Pa. 2006), cert. den. (2006)

• The CGA showed the state’s theory based on the forensic evidence: how Serge shot his wife first in the lower back then through the heart as she knelt on the living room floor of their home.

• CGA showed the location of Serge and his wife in the living room, positions of their bodies, and the sequence, path, trajectory, and impact sites of the bullets

• Court instructed the jury that the CGA was a purely demonstrative exhibit, not substantive evidence, and it was being offered solely as an illustration of the state’s version of the events

• Court told the jury that not to confuse art with reality and not to view the CGA as a definitive recreation

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