Courtroom landmarks: Jaffee, Daubert and Griggs

Transcript

RyanJune 27, 1991. A police officer named Mary Lu Redmond is the first to respond to a fight-in-progress call at an apartment complex in Illinois. During that call, Officer Redmond shoots and kills a man named Ricky Allen.

SoheeAfterward, she goes to counseling. About 50 sessions with Karen Beyer, a clinical social worker licensed by the State of Illinois. Allen's family sues, and their lawyer wants Beyer's notes.

RyanAnd that dispute goes all the way to the U.S. Supreme Court. Welcome to EPPP Prep, the podcast. I'm Ryan.

SoheeI'm Sohee. Today: three Supreme Court decisions every psychologist should know. Jaffee v. Redmond on privilege. Daubert on expert testimony. And Griggs on employment testing. Our confidentiality episode covered Tarasoff and the federal privacy rule, so today stays in the courtroom.

RyanLet's finish the Jaffee story. The trial court ordered the notes turned over. Neither Beyer nor Redmond complied. The jury was told the refusal was legally unjustified, and that it could presume the notes would have been unfavorable to Redmond.

SoheeThe Supreme Court decided the case in 1996, and held that the conversations between Redmond and her therapist, and the notes taken during their counseling sessions, are protected from compelled disclosure under Federal Rule of Evidence 501.

RyanSo Jaffee recognized a psychotherapist-patient privilege in the federal courts. And the reasoning is worth knowing, because it's psychology's own argument. Effective psychotherapy depends on an atmosphere of confidence and trust.

SoheeThe Court said the mere possibility of disclosure may impede the relationship that successful treatment needs. And it called the mental health of the nation's citizens a public good of transcendent importance.

RyanIt also noted that all 50 states and the District of Columbia had enacted some form of the privilege.

SoheeNow the two holdings the exam leans on. First, who's covered. The privilege clearly applies to psychiatrists and psychologists, and the Court extended it to licensed social workers in the course of psychotherapy, because the reasons apply with equal force.

RyanSecond, no balancing. The lower court had said a judge could weigh the need for the evidence against the patient's privacy. The Supreme Court rejected that, because it would make it impossible for people to predict whether their confidential conversations will be protected.

SoheePause and think. A federal civil case. A client's sessions with a licensed clinical social worker. The client hasn't waived the privilege. The judge says the evidence is badly needed. Are the notes protected?

RyanYes. Jaffee rejected case-by-case balancing, it covers licensed social workers, and it protects the notes along with the conversations. The tempting wrong answers are exactly those three: the judge can balance, social workers aren't covered, or statements are privileged but notes aren't.

SoheeOne honest limit. The Court said it didn't doubt there are situations where the privilege must give way, for example if a serious threat of harm to the patient or others can be averted only by a disclosure from the therapist.

RyanNow Daubert v. Merrell Dow Pharmaceuticals, decided in 1993. Two children and their parents claimed the children's serious birth defects were caused by their mothers taking Bendectin, a prescription drug, during pregnancy.

SoheeThe lower courts kept the plaintiffs' expert evidence out using the old Frye rule. Under Frye, expert opinion based on a scientific technique was inadmissible unless the technique was generally accepted as reliable in the relevant scientific community.

RyanAnd Frye has a fun origin. The Daubert opinion describes it as a short, citation-free 1923 decision about evidence from a systolic blood pressure deception test, a crude precursor to the polygraph.

SoheeThe Supreme Court held that the Federal Rules of Evidence, not Frye, provide the standard for admitting expert scientific testimony in a federal trial. Frye's general acceptance test was superseded.

RyanBut that didn't open the floodgates. The trial judge must ensure that any scientific testimony or evidence admitted is not only relevant, but reliable. That's the gatekeeping role.

SoheeAnd the Court offered factors, while saying it wasn't setting a definitive checklist. Whether the theory or technique can be, and has been, tested. Whether it's been subjected to peer review and publication. Its known or potential error rate.

RyanThe existence of standards controlling the technique's operation. And whether it has widespread acceptance within the relevant scientific community. So general acceptance survives, but as one factor, not the test.

SoheeThe inquiry is flexible, and its focus is on principles and methodology, not on the conclusions they generate. And publication is relevant, but not dispositive.

RyanSo the traps. Admissible only if generally accepted: that's Frye, not Daubert. Admissible only if published: no. Let the jury sort out scientific validity: no, the judge screens first. And because Daubert governs federal courts and state rules vary, good questions set these cases in federal court.

SoheeThird case. Griggs v. Duke Power Company, decided in 1971. Before the Civil Rights Act, the company had employed Black workers only in its Labor Department, where the best-paying jobs paid less than the lowest-paying jobs in the other departments.

RyanThen it required a high school education for jobs outside Labor. And it used two tests, the Wonderlic Personnel Test and the Bennett Mechanical Comprehension Test, as a route for transfer into the better departments.

SoheeThe Court found that neither requirement was shown to be significantly related to successful job performance, and both disqualified Black applicants at a substantially higher rate than white applicants. The question was whether Title VII of the Civil Rights Act of 1964 prohibits that.

RyanIt does. The Court said the Act proscribes not only overt discrimination, but also practices that are fair in form and discriminatory in operation. The touchstone is business necessity.

SoheeAnd here's the line about motive. Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation. Good intent doesn't redeem testing mechanisms that operate as built-in headwinds for minority groups and are unrelated to measuring job capability.

RyanThe employer bears the burden of showing that a requirement has a manifest relationship to the job. But notice what Griggs did not say. Nothing in the Act precludes the use of testing. Tests are useful.

SoheeWhat Congress commanded, in the Court's words, is that any tests used must measure the person for the job, and not the person in the abstract.

RyanSo the traps: lawful because there was no intent to discriminate. Lawful because it's a professionally developed test. Or, the opposite overreach, ability tests are banned. All wrong.

SoheeWhich brings us to a federal rule of thumb for employment tests. The Uniform Guidelines on Employee Selection Procedures, adopted jointly by the Equal Employment Opportunity Commission, the Civil Service Commission, and the Departments of Labor and Justice.

RyanThey contain the four-fifths rule. A selection rate for any race, sex, or ethnic group that's less than four-fifths, or 80 percent, of the rate for the group with the highest rate will generally be regarded by federal enforcement agencies as evidence of adverse impact.

SoheePause and think, number two. Hypothetical numbers. Half of one group's applicants pass a screening test, and three in ten of another group pass. Is there evidence of adverse impact?

RyanDivide the lower rate by the higher. Thirty percent over fifty percent is sixty percent. That's below four-fifths, so federal agencies would generally treat it as evidence of adverse impact.

SoheeAnd two refinements. Smaller differences can still count as adverse impact when they're significant in both statistical and practical terms. And a procedure with adverse impact is considered discriminatory unless it has been validated under the Guidelines, or other provisions are met.

RyanPlus, when two procedures are substantially equally valid, the user should choose the one shown to have the lesser adverse impact. Notice how closely that echoes Griggs: measure the person for the job.

SoheeLet's recap. Jaffee v. Redmond, 1996: a federal psychotherapist-patient privilege under Rule 501. It covers licensed social workers doing psychotherapy, protects conversations and notes, and rejects a judge's balancing test.

RyanDaubert, 1993: the Federal Rules replaced Frye's general acceptance test in federal trials. The judge is the gatekeeper for relevance and reliability, weighing testing, peer review, error rate, standards, and acceptance.

SoheeGriggs, 1971: under Title VII, practices that are fair in form but discriminatory in operation are prohibited unless shown to be related to job performance. Intent doesn't save them, and testing itself isn't banned.

RyanAnd the four-fifths rule: a group's selection rate under 80 percent of the highest group's rate is generally treated as evidence of adverse impact.

SoheeCourt cases can feel like memorizing names and years. But each one is a story about a real person, and a principle you already care about: trust, good science, and fairness.

RyanRemember the stories, and the holdings will follow. You're getting there, one landmark at a time. Thanks for listening to EPPP Prep.

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