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Daubert Standard Provides Judges with Standards to Assess Validity of Scientific Testimony

When parties in a civil or criminal trial seek to present testimony from scientists, doctors and other scientific or technical experts, the trial judge must first determine if the proposed evidence possesses sufficient reliability to be considered by the jury. The judge must apply what is known as the Daubert standard in making such assessments. Named after the two-decades old case of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Daubert decision supplied courts with a new set of standards to make a preliminary assessment of whether an expert’s scientific testimony is based on reasoning or methodology that is scientifically valid and can properly be applied to the facts at issue.

To apply the Daubert standard to evidence a party proffers for submission to the jury, the court must consider the following five factors:

(1) whether the theory or technique in question can be and has been tested;

 (2) whether it has been subjected to peer review and publication;

(3) its known or potential error rate;

 (4) the existence and maintenance of standards controlling its operation; and

 (5) whether it has attracted widespread acceptance within a relevant scientific community.

So if an attorney wants to elicit testimony from a doctor or scientific researcher on the topic of, for instance, concussions, and the witness intends to testify as to how a new type of brain scan generated evidence of the concussion’s impact on the brain tissue of a party, the trial court would need to hear evidence about this type of brain scan and consider that evidence in light of these five factors. If the judge decides the testimony and other evidence meets the Daubert standard, the court will permit that witness to testify before the jury in the case about the use of the brain scan and the results it provides.

Not all states follow the test set forth in Daubert exactly. In the state of New Mexico, courts must examine the evidence in light of the first four enumerated Daubert factors and add one other factor: “whether the scientific technique is based upon well-recognized scientific principle and whether it is capable of supporting opinions based upon reasonable probability rather than conjecture.” The trial judge’s decision to allow or disallow testimony under this revise standard carries great weight. Only by proving the trial judge abused his or her discretion, can a party on appeal against whom the court entered a unfavorable ruling, secure a reversal from a higher court.  ’

The attorneys at the Law Office of George “Dave”Giddens, P.C. represent individuals involved in litigation of various types in New Mexico including personal injury cases. Giddens & Gatton Law, P.C. is located at 10400 Academy Road N.E., Suite 350 in Albuquerque, New Mexico. Call the office at (505) 633-6298 to set up an appointment or visit the firm’s website at

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