Some commentators have suggested that the American judicial hearing is becoming trial by expert. As recently as 1974, the Jury Verdict Reporter for Cook County, Illinois, listed only 188 regularly testifying experts? Today, there are more than 3,100-a 1,540 percent increase. In the late 1980s, the Cook County state courts averaged one expert per trial. In some areas, the trend is even more pronounced. In the early 1990s, the Rand Corporation released a study of the use of experts in trials in California courts of general jurisdiction. Expert witnesses appeared in eighty-six percent of the trials studied, an average of 3.3 experts per trial.
There is concern about the number of expert witnesses appearing in trials; however, more importantly, there is concern about the quality of the testimony which these witnesses proffer. In his 1991 text, Galileo's Revenge, the Manhattan Institute's Peter Huber leveled the charge that much of this expert testimony is "junk science." The debate over this charge was spirited and sometimes bitter.
This debate spilled over into the courts. In 1993, the United States Supreme Court joined the debate by rendering its decision in Daubert v. Merrell Dow Pharmaceuticals, Inc. Daubert became a cause celebre. Even before the Court handed down its decision, the media fixed on the case. The subsequent decision was greeted with intense media attention. ...
The purpose of this Article is to help resolve those controversies. This Article's thesis is that the courts must resolve the threshold dispute over the meaning of "[the facts or data in the particular case," before they can hope to intelligently dispose of the other four splits of authority. On occasion, some writers have at least passingly recognized a possible nexus among the various issues. However, for the most part, the commentators have been content to discuss individual issues, without endeavoring to develop a coherent theory of the structure of Rule 703.
Hopefully, this Article will aid the courts and commentators in seeing the interconnected nature of all five splits of authority over Rule 703. Part I of the Article delves into the key dispute over the meaning of "facts or data in the particular case." Part II describes each of the remaining four splits of authority. In addition, Part II demonstrates that each split relates back to the dispute over the meaning of "facts or data." To paraphrase Voltaire, if we are to have a productive conversation about Rule 703, we must first define our terms. On a previous occasion, I stated my position on the definition of "facts or data." The purpose of this Article is not to reiterate that position. Instead, my intent is to help the courts appreciate that they must stake out a position on this dispute in order to sensibly resolve the other splits of authority. The courts must come to understand the need to formulate a coherent theory of Rule 703; and, as we shall see, a central tenet of that theory must be a definition of "facts or data in the particular case."
Edward J. Imwinkelried, Developing a Coherent Theory of the Structure of Federal Rule of Evidence 703, 47 Mercer L. Rev. 447 (1996).