The Fine Art of Daubert
Why The Supreme Court's Daubert Standard
Matters to Art Collectors Who Use Experts to Establish Authenticity
by
Cindy Hill, Esq. for Fine Art Registry™
Courtroom trials in real life are not what they look like on television.
I hate to be the one to break that news, because courtroom drama on TV is so exciting and glamorous, especially today in the midst of the high popularity of CSI and a host of reality court and criminal justice shows. But in the day to day reality, instead of television reality, trials follow rigorous sets of rules and highly-structured procedures. Juries only hear evidence after the judge, attorneys and witnesses have gone through countless hours of behind-the-scenes hearings to determine whether the witnesses' testimony meets the rules for admissibility. In American courts, three sets of rules – the Rules of Evidence, the Rules of Criminal Procedure, and the Rules of Civil Procedure – dictate what goes on inside a courtroom. Each state, and the federal court system, have all three of these sets of rules (what's admissible evidence in Idaho ain't necessarily admissible in Louisiana).
These weighty tomes of boring rules have an important impact on art authentication. Art collectors, museums and galleries are increasingly relying on scientific or forensic information to authenticate artworks, looking to science to reveal not only the origins of a piece but also information about its restoration and provenance history. The representations that an art seller or broker makes about the creator and origins of a piece of artwork are a major component of the buyer's decision to acquire the piece. That purchase is a contract – a contract that could wind up in court if it turns out those representations are questionable. So the question of what kinds of evidence and representations about the origins of an artwork would stand up in court are critical for sellers, purchasers and authenticators.
If any art owner, buyer, seller or museum cataloging its holdings is looking to identify their work through scientific testing, it would be wise to ensure that testing meets forensic or court-admissible standards for evidence. Not only will this help to withstand any future court challenges, but it also helps to ensure the reliability and universal acceptability of the testing results. Results of 'junk science' testing – so-called scientific evidence that doesn't meet the stringent standards for court admissibility – don't shed light on anything; they only help to further fraud and obfuscate truth in art authentication.
Expert Witnesses' Qualifications
As a general rule, witnesses can only testify about particular events that they themselves personally experienced – for example things that they heard, saw, or felt – and then only if those things are relevant to the legal issues of the case. In a criminal case, this would mean that witnesses could only testify if they saw the crime occur, or saw the defendant running away from the scene, or saw the defendant elsewhere at the time the crime was supposed to have occurred. In a civil case, if, say, the trial involved liability for injuries from a car accident, again, only testimony of people who actually saw the accident, or saw one of the drivers speeding just before the accident, would be admitted.
In a trial, there are no such things as "character witnesses." A defendant charged with a crime, or a person being sued for speeding and causing an accident, cannot present witnesses to testify that they are a "nice guy" or "would never have done such a thing." Nor could they have someone testify as to what someone else told them about the crime or accident. Such second-hand information is called "hearsay," and although the courts of some other countries allow it, American courts as a general rule preclude hearsay testimony. American courts, civil and criminal, limit evidence to the actual perceptions and observations of people who witnessed the events which are at issue in the trial. There are some exceptions to this, of course, and television often shows us scenes of tearful friends and family testifying as to what a great person the defendant is – but these are sentencing or judgment hearings, not the trial itself.
The largest exception to the ban against opinion evidence is testimony of an "expert witness."
Witnesses are also banned from giving "opinion evidence," that is, to testifying as to whether they think someone is guilty or is at fault for something. Most witnesses are precluded from giving their opinion on any other facts about the case, too. For example, if someone testifies that they observed a man drinking at a bar, the witness could testify that they saw the man, what he was wearing, where he was sitting, and whether or not he had a glass in his hand. However, unless they saw the bottle from which the bartender poured the man's drink, most ordinary witnesses would not be allowed to testify that "I could tell he was drinking cheap scotch because he had lots of ice in it and grimaced when he swallowed which means it must not have tasted good. This kind of testimony actually consists of several different opinions – an opinion as to what was in the glass based merely on observation from across the room, and an opinion as to the man's reaction and thoughts upon drinking from the glass. The ordinary lay witness could testify that the man had a glass with ice and an amber liquid in it, and that he grimaced each time he took a swig from it – these are facts based upon the witness' observations. But the contents of the glass and the drinker's thoughts about the taste of the beverage are outside the witness' personal knowledge and the judge would stop the witness from testifying on these points.
The largest exception to the ban against opinion evidence is testimony of an "expert witness." The lab tech who tested the blood or paint obviously did not themselves witness the crime or event that is the subject of the lawsuit, so under ordinary witness rules, they would not be allowed to testify. But the Federal Rules of Evidence say that, "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...." if certain standards are met regarding the evidence they are testifying about. (See below.)
An expert has to be deemed "qualified" to give their expert testimony to the jury in each and every case in which they testify. The judge will hold a hearing without the jury present and question the witness as to his or her expertise, experience and credibility. There is no hard-and-fast checklist of qualifications to testify as an expert in any given field. However, the judge will want to know the witness' education, training, seminars they've attended, certifications and memberships in professional organizations in their field, publications and anything else demonstrating that the witness is not merely a smart person, but is recognized and accepted as being properly trained and knowledgeable specifically in the field about which they will be testifying.
The qualification of a proper expert is critical in the art authentication field. An art broker or restorer, for example, may be very knowledgeable about the art sales market, or perhaps about some particular artists or aesthetic schools. But without the proper scientific qualifications, such a person could not be admitted as an expert to testify about, for example, paint chemistry, DNA, or fingerprints. The person wishing to present a witness as an expert will have to show they are properly qualified on the point about which they are to offer testimony.
Standards for Scientific Evidence
In addition to expert witnesses themselves being properly qualified in the field they are testifying about, the scientific methods to which they are testifying must also meet rigorous, court-approved standards.
In 1993, the U.S. Supreme Court ruled in a case called Daubert v. Merrell Dow Pharmaceuticals that trial judges need to act as "gatekeepers" when scientific evidence is proposed. At a Daubert hearing without the jury present, the judge has to not only qualify the witness who is seeking to testify as an expert, but must also determine if the scientific evidence they intend to present is "sufficiently based on reliable facts and data," is "the product of reliable principles and methods," and that "the witness has applied the principles and methods reliably to the facts of the case" [Fed. Rules of Evidence, Rule 702]. In other words, is the evidence to be presented scientifically valid?
At a Daubert hearing, the trial judge will consider five factors: whether the expert's technique or theory can be or has been tested; whether the expert's theory or technique has been subjected to review and publication; the known or potential error rate of the technique or theory; the existence and maintenance of standards and controls; and whether the technique or theory has been generally accepted in the scientific community.
The qualification of a proper expert is critical in the art authentication field.
To use the example of a case which has recently been prominent in the news, Teri Horton's painting, which she publicly presents to be by Jackson Pollock, has been examined by a Canadian art restorer, Peter Paul Biro. Mr. Biro and Ms. Horton have sought the court of public opinion on this painting, appearing on numerous television shows, as well as in a film they created with New Line Cinema, presenting their case as to why they believe the painting is a Pollock. Mr. Biro has also published a large, and often changing, report on his website, journaling his work in authenticating this painting.
Amongst the "evidence" they present are fingerprint comparisons and paint chemistry analysis conclusions. Now, on the internet – and on Sixty Minutes and Geraldo – anyone is free to testify as they wish to the "jury" of public viewers. But would this "evidence" have been heard by a jury in a court of law if the question of authenticity were brought to trial?
To present the Pollock fingerprint identification in a trial, the person testifying about the fingerprint comparison would have to first past muster as a qualified expert. This would mean at a minimum being properly trained and certified in the forensic identification field. The standards for meeting the qualifications as a fingerprint expert are well-established in the criminal justice arena. Certification by the professional societies, and ongoing training and testing, are the normal base standards for expert qualification in this field. Mr. Biro's online Forensic Report detailing his fingerprint work indicates that he engages a properly qualified expert to confirm his findings regarding fingerprints. If this is the case, then it would be such a properly qualified expert who would have to present the fingerprint testimony.
Assuming such a person were qualified in fingerprint identification, the next question would be whether the standard fingerprint identification techniques were applied reliably in the gathering of the fingerprint samples used for comparison. Were the fingerprints being used for comparison gathered in a scientifically acceptable manner? Is there a proper "chain of custody" documenting the path the fingerprint images took from the source object to the person testifying? And were any new or unusual techniques used to obtain the comparison images? And is there proof that the fingerprints were actually those of the person they are being attributed to?
On this latter point, although fingerprint comparisons and fingerprint identifications generally are accepted by courts as proper scientific evidence – assuming they are presented by credible experts – any new or different techniques in obtaining or rendering fingerprints would have to first go through rigorous Daubert standards inquiry before being admitted into court. For example, if one of the fingerprints used in comparison was obtained, not through an original object, but rather through enlarging a photograph in a book that appeared to include an image of a fingerprint in it, that technique would have to withstand a Daubert inquiry as to how that is known to be scientifically reliable. Or if the fingerprint images have been not only digitally or photographically enhanced, but subjected to a computer modeling enhancement designed to adjust for the uneven surfaces of a painting, that computer modeling technique would also have to withstand the five Daubert tests and be proven scientifically reliable before a court will allow testimony based on it.
These same standards, from the qualifications of the testifying expert witness, to the credibility of the evidence on which the testimony is based, to the scientific reliability of the techniques and methods used, would be applied on each point of forensic based authentication, including not only fingerprints but also DNA evidence, paint chemistry analysis and any other scientific testing.
The news and entertainment media do not remotely stand as the gatekeepers of scientific reliability the way that courts do under the expert witness and Daubert standards. In the court of media infotainment, anything goes. But all art collectors and owners would be wise to adopt the forensic (court sanctioned) standards regarding scientific knowledge pertaining to art authentication, particularly before making a decision to buy a painting of questionable origin. Art buyers can themselves apply many of the same questions which a court would ask in its gatekeeper role: Is the expert offering an opinion truly qualified? Are the materials and samples they are using for comparison credible? And are the testing methods they are using accepted in the scientific community? Professional associations and university faculty are great resources to help art buyers learn more about these questions, and Fine Art Registry™ will continue to explore in detail in upcoming articles the kinds of qualifications art collectors and owners should look for in engaging experts in their search for the truth of the origins and history of a work of art.
— by Cindy Hill, Esq.
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September 7, 2007
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