Logerquist v. McVey

MARTONE, Justice,

dissenting.

¶ 75 We were asked to decide whether Frye or Daubert applies to the theory of repressed memory. Instead of choosing, the majority rejects both Frye and Daubert and abandons the trial court’s substantive role in ruling on the admissibility of this sort of evidence. Because I believe that judges can play a valuable role in preventing the abuse of expert testimony and in excluding junk science, I dissent.

¶ 76 In Logerquist v. Danforth, 188 Ariz. 16, 23-24 , 932 P.2d 281, 288-89 (App.1996), the court of appeals remanded this case to the trial court for an evidentiary hearing on the validity of repressed memory under Frye. We denied review. The trial court then held a comprehensive evidentiary hearing and concluded that the relevant scientific community rejects the existence of repressed memory and the theory that such memories can be recalled with accuracy. Logerquist’s offer of expert evidence thus failed to pass the general acceptance standard of Frye. The court of appeals declined to accept jurisdiction of Logerquist’s petition for special action. She petitioned this court to review the following two substantive issues:

1. Does the Frye rule apply to this case, or should this court adopt Daubert?

2. Did Judge McVey act arbitrarily, capriciously, and/or abuse his discretion in ruling that the existence and accuracy of repressed memory are not generally accepted by the relevant scientific community so that the Frye rule was not met here?

Petition for Review at 3. Although the majority answers neither issue, here are the answers to these questions.

¶ 77 If we were to continue to adhere to Frye, then we would affirm the ruling of the trial court. The hearing Judge McVey held under Frye was comprehensive and the majority does not take issue with his conclusion that repressed memory is simply not generally accepted in the scientific community. Expert testimony on repressed memory would thus be excluded. If, on the other hand, the court chose this case as a vehicle to adopt Daubert, as both parties urged us to do, then the Frye hearing would be inadequate and we would need to remand this ease to. the trial court for reconsideration under Daubert.

¶ 78 The majority chooses neither approach. Ironically, the majority does an end-run around Frye even as it pays homage to it. And, because the majority does not trust trial judges to properly perform a gatekeep-ing function, it rejects Daubert and avoids remand on this issue.

I.

¶ 79 How does the majority bypass Frye? It does so by stating that expert opinion testimony about repressed memory is not based upon scientific theory at all. According to the majority, because Frye only applies to scientific theories or processes, and repressed memory is unscientific, general acceptance is irrelevant and the evidence comes in. Ante, at ¶ 19. But this analysis is flawed. One would reach the exact opposite conclusion if one believed that repressed memory was not based on a scientific theory. If as the majority asserts, repressed memory has no scientific basis, then, like astrology, expert testimony on it should be excluded. 1 If, on the other hand, the theory of repressed memory is offered as having some scientific validity, then it must be subject to either *494 Frye or Daubert scrutiny. Here, the theory is offered as having a basis in science. Lo-gerquist’s expert, Dr. van der Kolk, 2 planned to testify that amnesia for traumatic events, including sexual abuse, “has been documented in numerous scientific reports” and that the notion is “well accepted in the relevant scientific community.” Ante, at ¶ 15. Thus, Frye is fully applicable.

¶80 The majority reaches the quite remarkable conclusion that “Frye is inapplicable when a qualified witness offers relevant testimony or conclusions based on experience and observation about human behavior for the purpose .of explaining that behavior.” Ante, at ¶ 30. But observation-based experience and inductive reasoning, ante, at ¶ 62, lie at the heart of the scientific method. That expert evidence about human behavior has no basis in science will be astounding news to the medical community. It also means that any psychiatrist, psychologist, or “human behavioralist” can be called as an “expert” and render any theory of human behavior, however farfetched. This presents a profound danger to our judicial system. Neurobehavioral genetics is an emerging field. The ways in which genes affect the brain and human behavior raise all sorts of issues: the relationship between genes and criminal violence; the relationship between genes and mental disorders; the relationship between genes and behavioral disorders; the relationship between genes and addictive disorders; and the list goes on. See Dean Hamer and Peter Copeland, Living With Our Genes (1998).

¶81 After today’s decision, any “expert” can walk into an Arizona courtroom and testify about human behavior without any threshold showing of scientific reliability. Yet, with a renegade exception, courts that have addressed the admissibility of expert testimony on repressed memory have applied either Frye or Daubert. Though they reach different outcomes, each applies some form of heightened evidentiary scrutiny. See Shahzade v. Gregory, 923 F.Supp. 286, 287 (D.Mass.1996) (finding that the theory of repressed memory is reliable under Daubert); Doe v. Shults-Lewis Child and Family Services, Inc., 718 N.E.2d 738, 748-49 (Ind.1999) (concluding that, before the testimony is admitted into evidence, the court must be satisfied that the expert scientific testimony is based on reliable scientific principles); State v. Hungerford, 142 N.H. 110 , 697 A.2d 916, 920 (1997) (concluding that repressed memories must satisfy a threshold reliability inquiry before being admitted at trial); State v. Quattrocchi, 681 A.2d 879, 883-84 (R.I.1996) (concluding that when repressed memory testimony is offered, the trial judge “should exercise a gatekeeping function and hold a preliminary evidentiary hearing outside the presence of the jury in order to determine whether such evidence is reliable”).

¶ 82 The majority neglects these eases and, instead, is drawn to Wilson v. Phillips, 73 Cal.App.4th 250 , 86 Cal.Rptr.2d 204 (1999), a sui generis opinion of California’s intermediate appellate court. The distinction in Wilson (distinguishing expert medical opinion from scientific theories) is contrary to Arizona law and common sense. Expert medical opinions must be based on medical science as it is currently known. A contrary conclusion would reduce medicine to magic.

¶ 83 The majority’s reliance upon State v. Hummert, 188 Ariz. 119 , 933 P.2d 1187 (1997), to support its conclusion that Frye does not apply here is misplaced. In Hum-mert, we distinguished between two kinds of evidence. One involved the scientific validity of DNA identification techniques. As to this, we said Frye applied. We also said it was generally accepted under Frye. The other evidence was expert experience with DNA matches. We allowed opinion evidence concerning the expert’s experience with random matches without subjecting that experience to a Frye analysis, because the scientific principles that were at the basis of their personal experience had already been subjected to a successful Frye analysis. Thus, under Hummert , the theory of repressed memory would first have to satisfy Frye. If it *495 did, then and only then could an expert offer an opinion based on experience.

¶ 84 So too, in State v. Lindsey, 149 Ariz. 472, 473 , 720 P.2d 73, 74 (1986), we permitted expert testimony that explained “recognized principles of social or behavioral science which the jury [could] apply to determine issues in the ease.” The principles were already recognized. Here, of course, we have a very different case. Repressed memory has not been generally recognized. It is a new and controversial theory which attempts to explain the brain’s response to trauma under the banner of science. Thus, we should not allow expert testimony based upon personal experience in this area unless and until it satisfies Frye.

¶ 85 Nor does State v. Roscoe, 145 Ariz. 212 , 700 P.2d 1312 (1984) (Roscoe I) advance the majority’s position. We had to acknowledge error in admitting the dog scent evidence when it turned out that the expert was a “charlatan” and his theory “fabricated.” State v. Roscoe, 184 Ariz. 484 , 489 n. 1, 910 P.2d 635 , 640 n. 1 (1996) (Roscoe II). We thus erred in Roscoe I in allowing the use of this evidence without any preliminary showing of reliability. It is precisely because of eases like Roscoe I that the trial court’s role as a gatekeeper is so important. 3 The majority’s revised reading of Hummert, Lindsey, and Roscoe I easts Frye right out of our jurisprudence.

¶ 86 Having shown that Frye does apply, here is how we should deal with it. A preeminent treatise on scientific evidence says this about the relationship between repressed memory and the law:

In many respects, the phenomenon of repressed memory, whatever its validity, presents a classic problem for the law and science relationship____[I]t remains woefully short of being empirically verified and, indeed, heralds from a non-rigorous school of psychology in which empirical validation is not a core tenet. The theory of repressed memories has its roots in clinical therapy, a domain in which validity is not a factor of overriding concern. In therapy, support and improved mental health are the predominant outcome measures.

1 David L. Faigman, David H. Kaye, Michael J. Saks & Joseph Sanders, Modern Scientific Evidence: The Law and Science of Expert Testimony § 13-1.5, at 534-35 (1997).

¶ 87 There may be no area of contemporary psychiatry and psychology more controversial than the theory of repressed memory. “Questions are raised about the authenticity of such reported memories, people’s ability to recall such memories, the techniques used to recover these memories, and the role of therapists in developing the memories.” Id. § 13-2.3, at 539. Indeed, the preeminent professor of law and psychiatry at Harvard University notes well the problem of memory, “infantile amnesia” and its effect on the legitimacy of Freudianism itself.

The task of constructing self-descriptions in psychoanalytic therapy also encounters the problem of memory. Everything we have learned in recent years about memory has emphasized its plasticity, the ease with which it can be distorted, and the difficulties of reaching a hypothetical veridical memory. Much of what psychoanalysis considered infantile amnesia may be a function of the reorganizing brain rather than of the repressing mind. All of this makes the task of constructing meaningful histories of desire in the individual more daunting.

If there is no important connection between childhood events and adult psychopathology, then Freudian theories lose much of their explanatory power. If memory cannot be trusted to construct a self-description, what does one do in therapy?

Alan A. Stone, M.D., Where Will Psychoanalysis Survive: What Remains of Freudian-ism When its Scientific Center Crumbles?, Harv. Mag., Jan.-Feb.1997, at 39.

¶ 88 This debate lies at the essence of Frye. Repressed memory does not lie within the range of common knowledge. Experts in psychology and psychiatry cannot reach *496 agreement about its validity. See Modern Scientific Evidence § 13-2.0, at 115-50 (Supp.1999). And, if experts cannot agree about the validity of repressed memory, how do we pass this question to the jury without first reviewing its reliability under some heightened form of evidentiary scrutiny? That is what Frye is all about. Here is what some experts conclude:

Repression, in short, is a testable hypothesis, but it has not yet been appropriately tested. Pending satisfactory studies, therefore, the most reasonable scientific position is to maintain skepticism.

Id. at 150. The trial court properly excluded this theory under Frye.

II.

¶ 89 In rejecting the application of Frye to repressed memory, the majority construes Rule 702, Ariz. R. Evid., governing the admissibility of expert testimony, as though the trial court had no role in the process. This, of course, requires the majority to reject Daubert because Daubert concluded that Federal Rule 702, identical to our Rule 702, imposes a gatekeeping role on the trial judge to ensure that only reliable expert testimony is admitted.

¶ 90 As the majority acknowledges, both sides to this case ask us to adopt Daubert. I believe the time has come to accept that invitation. Daubert and Kumho apply a consistent and integrated approach to Rule 702. We copied our Rule 702 from Federal Rule 702. While we certainly have the authority to read it differently, there is no good reason to do so. Frye can operate to exclude evidence which ought to be admitted. And, it might admit evidence which ought to be excluded. This is especially true if the definition of the relevant scientific community is quite narrow. For example, the community of astrologers could simply say that astrology is generally accepted among them. Under this approach, horoscopes would be admissible.

¶ 91 Daubert, on the other hand, points out that scientific testimony is admissible only if it is both relevant and reliable. Rule 702 assigns the trial judge the legal task of determining both the relevance and the reliability of scientific foundation. As noted in Daubert, “in order to qualify as ‘scientific knowledge,’ an inference or assertion must be derived by the scientific method.” Dau-bert, 509 U.S. at 590, 113 S.Ct. at 2795. Thus, scientific validity must precede eviden-tiary reliability. See id.

¶ 92 Kumho fills out Daubert quite nicely. By not limiting the judicial role to scientific evidence, one avoids the abuse that the majority approves here — “any expert could sidestep scrutiny by characterizing the testimony as ‘experience-based.’ ” Tracy A. Paulaus-kas, Note, Volume III of the Daubert Trilogy: Kumho Tire Co. v. Carmichael, 39 Juri-metrics J. 443, 450 (1999).

¶ 93 The majority’s treatment of Daubert, ante, at ¶¶ 33-61, is based upon a variety of views that I simply do not share. First, its criticism of the United States Supreme Court’s analysis and its characterization of its opinion as a “jury argument,” ante, at ¶ 40, are inappropriate. Second, the majority shows a lack of confidence in trial judges that is simply without foundation. To suggest that trial judges are in no better position than jurors to separate junk science from good science is, I believe, an abdication of a core role of the judge in our system of justice. To suggest that judges “have little or no technical training” and have no time for hearings on the admissibility of expert testimony, ante, at ¶¶ 48^9, is unfounded. Rare is the judge who has not attended formal programs involving scientific evidence. Indeed, this court’s Judicial College just sponsored a “Genetics in the Courtroom” judicial education program based upon the idea that judges do have a significant gatekeeping role, whether operating under Frye or Daubert. See Arizona Supreme Court, Arizona/Southwest Conference on Genetics in the Courtroom (Feb. 8-11, 2000). 4 This is consistent *497 with a growing national awareness that judges are becoming more literate in matters of science. See, e.g., Stephen Breyer, The Interdependence of Science and Law, Judicature, Jul.-Aug.1998, at 24.

¶ 94 And, they certainly do have time for hearings under Rule 104, Ariz. R. Evid., to determine the preliminary question of the admissibility of evidence. In my experience, they do it every day. Today, the majority reads Rule 104(a) out of our Rules of Evidence. That rule plainly assigns to the trial judge the task of determining the preliminary question of the admissibility of evidence. (“[T]he admissibility of evidence shall be determined by the court.”) And in holding hearings, the trial judge, unlike the jury, “is not bound by the rules of evidence.” Rule 104(a), Ariz. R. Evid.

¶ 95 Nor do I subscribe to the majority’s new found dictum that the Arizona Constitution prohibits trial judges from determining the reliability of the scientific foundation for an expert’s testimony. If this is true, how then have we applied Frye at all? The majority offers no support for its remarkable contention. Article 2, § 23 of the Arizona Constitution does not address the scope of trial by jury. It simply states that the right of trial by jury shall remain inviolate. In Brown v. Greer, 16 Ariz. 215, 221 , 141 P. 841, 843 (1914), we held that the constitution does not grant a right to trial by jury but simply preserves any right that existed at the time the constitution was adopted. But our own judges, and those across America, have always determined preliminary questions of admissibility. The jury gets to decide factual disputes after evidence is admitted pursuant to the rules of evidence. Jurors do not get to decide factual disputes that go to the admissibility of evidence. The judge does that under Rule 104(a), Ariz. R. Evid. The majority’s view of the respective roles of judge and jury in the admissibility of evidence is extraordinary. Judicial rulings on the admissibility of scientific evidence under Daubert /Kumho would no more violate the Arizona Constitution than do similar rulings violate the Seventh Amendment to the Constitution of the United States. Bert W. Rein, The Role of the Jury in the Evaluation of Scientific Evidence, 9 Kan. J.L. & Pub. Pol’y 28, 31 (1999).

¶ 96 So as not to belabor the point, I stop here. Suffice it to say, there are almost no views or opinions expressed in the majority opinion that I share.

III.

¶ 97 If Frye is still the law of Arizona, then the trial court’s findings in this case are unassailable. The theory of repressed memory has not found general acceptance in the scientific community. Thus, it was proper for Judge McVey to exclude expert opinion testimony on this subject. The majority’s claim to adhere to Frye and yet avoid this result is unfathomable. On the other hand, I would, as both sides have suggested, replace Frye with Daubert and remand this case for reconsideration in light of Daubert.

. The majority denies the scientific basis of repressed memory in order to bypass Frye. Thus, contrary to Justice Jones' assertion, ante, at ¶ 71, it is the majority, not I, that puts repressed memory in the same category as astrology.

. By cluttering the Arizona Reports with his resume, the majority fails to distinguish between Dr. van der Kolk's qualification as an expert, which is not in dispute, and the theoiy he ad-vanees, which is the heart of the dispute. We would not allow a Nobel laureate in physics to testify that, based upon his experience, the earth is flat.

. Ironically, the majority notes that in Roscoe I, we stated that Frye would apply to the theories of Freud. Ante, at ¶22. Yet the theory of repressed memory is grounded in Freud’s theories. If Dr. van der Kolk’s testimony is based upon Freud, how does it escape Frye scrutiny?

. Justice Feldman tries to separate himself from the Judicial College of Arizona, ante, at V 50, n. 13, but as a former board member of the College, he knows that neither its work nor the work of its parent, the Arizona Judicial Council, comes to the five members of this court. With rare exception, the only matters that come before the five *497 members of this court are cases, rules, and some administrative issues.

The number of participants in the conference was limited by the size of the grant from the United States Department of Energy. Contrary to Justice Feldman’s assertion, 63 judges attended along with 30 scientific faculty.

Justice Feldman complains about the letter of invitation, but he did not complain about its language when he received the letter and chose not to attend the conference. At all events, why hold such a conference if judges have no role in the admission or exclusion of scientific evidence?