American Judges Association


Date of this Version



Court Review, Volume 49, Issue 3 (2013)


Copyright American Judges Association. Used by permission.


J udges who are deciding contested issues in their courtrooms have an immense toolbox of potential methods at their disposal. Many of these are commonplace methods, used on a day-to-day basis for common issues in litigation. Pretrial conferences come to mind as an example in this regard. But for those issues involving complex science, a judge has choices to make on how to perform his or her important gatekeeping role, and those gatekeeping tools may be more rarely used.

In 1993, the United States Supreme Court chose to review admissibility of scientific evidence in the landmark case of Daubert v. Merrell Dow Pharmaceuticals.1 In that case, the court declared that district court judges must act as a gatekeeper for admissibility of scientific evidence, to determine the relevance and reliability of expert evidence before its admission. Further caselaw affirmed and expanded the original Daubert holding, ensuring trial judges had maximum flexibility to perform the gatekeeping function.2

So what tools do judges actually use to perform their gatekeeping role, and how often do they do so? During those years when the Court was scrutinizing scientific evidence in Daubert and other related decisions, several studies examined the issue of gatekeeping methodology in both state and federal courts. These studies relied on surveys performed before the end of the Daubert trilogy, at a time when many states had either recently shifted their standard to Daubert or had yet to do so. Considering the age of the studies, updated analysis seems timely.