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Admissibility of Scientific Evidence Under Daubert

Admissibility of Scientific Evidence Under Daubert

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scientific evidence;daubert
scientific evidence;daubert

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04/08/2013

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ADMISSIBILITY OF SCIENTIFIC EVIDENCE UNDER 
 DAUBERT 
"With miracles, any sort of evidence will suffice; facts require proof" 
(Mark Twain)
The U.S. Supreme Court's opinion in
 Daubert v. Merrell Dow 
(1993)
 
rejected the
Frye
testand
Frye-plus
tests for the admissibility of certain scientific evidence. Instead of "generalacceptance" in the scientific community, the
 Daubert 
test requires an independent judicialassessment of reliability. Among other purposes, the
 Daubert 
test is intended to end thecurrent "battle of the experts" state of affairs. The
 Daubert 
decision involved the claim thatBendectin caused birth defects, and even though it was intended to clear the way foradmitting novel scientific evidence (like DNA), it has instead turned out to be a firestorm of controversy.The misuse of scientific evidence is a serious problem. Even the FBI laboratory is undersuspicion. In West Virginia, a serologist falsified test results in hundreds of cases over a ten-year period, sentencing hundreds of defendants to lengthy prison terms. In Texas, apathologist faked autopsy results, resulting in as many as 20 death penalty verdicts. Apolice chemist elsewhere falsified reports and sent hundreds of innocent people away to jailon rape charges. Most misuse of scientific evidence is pro-prosecution.
 Daubert 
sheds lighton shoddy procedures, protocols, and proficiency testing.This document attempts to understand the
 Daubert 
test in light of continuing battles overforensic techniques and procedures. The
 Daubert 
ruling rests on an interpretation of theFederal Rules of Evidence. As a statutory, rather than constitutional case, it is notnecessarily binding on the states, but many courts of appeals are ordering remands orwhole new hearings because the trial court failed to conduct a
 Daubert 
hearing, and there isfrequent variation from state to state in how
 Daubert 
hearings are conducted.The fact is that
Frye
still remains the rule in many states. Other states have adopted
 Daubert 
, and yet other states have a history of rejecting
Frye
and
 Daubert 
, substitutingtheir own standards. The following table contains a summary:States accepting
 Daubert:
 
States sticking with
Frye:
 
States with their own tests, ortypically a
Frye-plus
test:
 
ConnecticutIndianaKentuckyLouisianaMassachusettsMissouriNew MexicoOklahomaSouth DakotaTexasWest VirginiaAlaskaArizonaCaliforniaColoradoFloridaIllinoisKansasMarylandMichiganNebraskaNew York PennsylvaniaWashingtonArkansasDelawareGeorgiaIowaMilitaryMinnesotaMontanaNorth CarolinaOregonUtahVermontWyomingOf course, all this is subject to change, but was fairly accurate as of 2004, and I continue
 
to get emails from people updating my information. States in the third category, like NorthCarolina, express a variety of standards, but generally use a balancing test approach,balancing relevancy or materiality with prejudicial effect which, in North Carolina, hasbeen noted as "consistent with
 Daubert 
" (see
 State v. Goode
, 341 N.C. 513, 461 S.E.2d 631(1995)).THE REASONING BEHIND
 DAUBERT 
JUDICIAL NOTICE: The theoretical foundations behind many sciences are so firmlyestablished as scientific laws that they are more properly the subject of judicial notice; the judge should be able to make a determination.ADMINISTRATIVE LAW: Some techniques and procedures have such an extensiveprecedent in administrative law as to be part of official manual/standard operatingprocedure for agencies; it is wide-ranging precedent.CERTIFICATION: Scientific fields that have been generally accepted by professionalforensic associations are proliferating, forensic this and forensic that; there must be someunderlying reliability standards.CODIFICATION:
 Daubert 
may provide the impetus to amend Fed. Rule 702 and itsstate counterparts which have created a variety of tests such as the "modified Frye Rule",the "Frye Plus Rule", the "objectively verifiable rule", and "three-prong rules".
 
Let's look at some common statements of FRYE and DAUBERT:
 
Interpretation of Frye:
 
Interpretation of Daubert:
 
Where novel scientific evidence is at issue,the Frye inquiry allows the judiciary to deferto scientific expertise precisely as to whetheror not it has gained "general acceptance" inthe relevant field. The trial court'sgatekeeper role in this respect isconservative, thus helping to keep"pseudoscience" out of the courtroom.General acceptance is an austere standardabsent from and incompatible with the Rulesof Evidence. "Scientific knowledge" must bederived from the scientific method supportedby "good grounds"
 
in validating the expert'stestimony, establishing a standard of "evidentiary reliability."
The
 Daubert 
ruling substitutes a reliability test for a relevancy test.
For statesthat follow neither
Frye
nor
 Daubert 
, this means that the continued practice of usingreliability as a weight once relevancy has been established exposes a serious constitutionalliability.WHAT ARE THE RELIABILITY FACTORS IN
 DAUBERT 
?All trial courts make a preliminary determination of admissibility. This job involves apreliminary assessment of whether the evidence is relevant, competent, and material. Inshort, can the evidence be properly applied to the facts in this case? This is the traditional"gatekeeping" function of courts. A number of reliability factors can enter into this andsubsequent hearings using the
 Daubert 
standard:
 
Has the scientific theory or technique been empirically tested? According toK. Popper (1989) in
The Growth of Scientific Knowledge
, "the criterion on thescientific status of a theory is its falsifiability, refutability, and testability."
 
 
Has the scientific theory or technique been subjected to peer review andpublication? This ensures that flaws in the methodology would have beendetected and that the technique is finding its way into use via the literature.
 
What is the known or potential error rate? Every scientific idea has Type Iand Type II error rates, and these can be estimated with a fair amount of precision. There are known threats to validity and reliability in any tests(experimental and quasi-experimental) of a theory.
 
What is the expert's qualifications and stature in the scientific community?And does the technique rely upon the special skills and equipment of oneexpert, or can it be replicated by other experts elsewhere?
 
Can the technique and its results be explained with sufficient clarity andsimplicity so that the court and the jury can understand its plain meaning?This is just the
 Marx 
standard, which is assumed to be incorporated in
 Daubert 
as it was with
Frye
.
 
SOME EXAMPLES OF
 DAUBERT 
APPLIED TO SPECIFIC TECHNIQUES:(Note this is not a complete list, and is not accurate for ALL jurisdictions)BALLISTICS generally FAILS the
 Daubert 
standard despite widespread acceptance.BATTERED WOMAN SYNDROME has satisfied the
 Daubert 
standard in some jurisdictions, but fails in most.CHILD ABUSE ACCOMMODATION SYNDROME has FAILED the test, for the mostpart.COMPUTER SIMULATION has failed because experts often can't explain the algorithms.DNA evidence is admissible under either the Frye or Daubert standard, but the reliabilityissue goes beyond the matter of testimony to the proper performance of protocols andprobability estimates.EYEWITNESS IDENTIFICATION generally FAILS the
 Daubert test 
, for the most part, asmost social science, like social psychology, does.FORENSIC ANTHROPOLOGY has not yet met the
 Daubert test 
, but the study of certainfeatures from bones remains reliable.HAIR ANALYSIS.
 Daubert 
has been successfully applied to Spectrophotometer and GasChromatographic tests for detecting the past use of drugs.HYPNOSIS has known therapeutic value, but not as a method of producing accuraterecollection of past events, as it would be used in court. Hypnosis, therefore, does not meetthe Daubert test.INTOXILYZER TESTS have been ruled valid and are considered beyond scientific disputeby many judges.POLYGRAPH evidence (which was usually acceptable under Frye with a few exceptions) isbeginning to be found reliable in
 Daubert 
hearings, but still does not enjoy widespreadacceptance, and is, in fact, outlawed by per se laws in various jurisdictions.PSYCHIATRIC evidence has had mixed results under Daubert. Techniques such as use of penile plethysmography to measure sexual arousal have had problems getting admitted insome states, but have faced no problems in other states. Also having difficulty ispsychological or sociopsychological profiling which is often attacked for its lack of logicalfoundation and/or weak methodology. Checklist techniques, such as those used todetermine if someone is a pedophile or a psychopath (e.g., an Axis disorder on the DSM IV)are even experiencing difficulties. However, testimony regarding mental disorders that go

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