Evan Ulman

Thesis Memo
1. “Amateur Scientists:” How the Rules of Evidence for Expert Testimony Fail to Prevent

Wrongful Convictions.

2. How and why has the Supreme Court’s interpretation of FRE 702 in regard to the admission of

scientific and technical evidence in trials failed to prevent wrongful convictions on the basis of

unvalidated forensics? What policy choices can Congress make to improve the FRE in order to

prevent “junk” science from being presented in court?

3. In common law courts, not all evidence is admissible because it could improperly bias the jury

against the defendant. Beginning in the early 20th century, new breakthroughs in forensic science

necessitated rules for the admission of expert evidence and testimony. The first legal standard for

admission of scientific evidence was established in Frye v. United States, which held that

scientific evidence “must be sufficiently established to have gained general acceptance in the

particular field in which it belongs.”1 However, by the latter half of the 20th century, it became

apparent to many jurists that the Frye standard was inadequate; namely, its requirement of

“general acceptance” was overly vague and potentially a roadblock to new and novel forensic

techniques which could be dispositive. Congress amended the Federal Rules of Evidence (FRE),

abandoning the general acceptance principle and substituting it with “reliability of the scientific

evidence” standard.2 In 1993, the Supreme Court held its first case contesting whether the Frye

standard or the FRE was controlling, Daubert v. Merrell Dow Pharmaceuticals Inc. The Court

sided with the federally enacted FRE, and further articulated standards for lower courts’

applications of the FRE in dicta. The four-part guideline is now referred to as the Daubert

1
Frye v. United States, 293 F. 1013 (D.C. Cir 1923)
2
Federal Rules of Evidence, Article VII, Rule 702: https://www.law.cornell.edu/rules/fre/rule_702
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standard, and states that judges should consider whether the scientific evidence behind the claim

can be empirically tested, whether it has been published and peer-reviewed, what its known error

rate is, and whether it is generally accepted among the relevant scientific community.3 While

Daubert provides more evaluative factors for judges to apply before evidence can be admitted, it

has not ensured that the judge evaluate evidence competently. Daubert relies on judges to act as

gatekeepers of erroneous evidence from trials. However, judges are not scientists, and they often

admit evidence which is unsound. Daubert is a procedural fix to a substantive problem. If judges

are not uniformly equipped to evaluate the scientific rigor of technical evidence, then more

expert is necessary in the pre-trial phase.

4. Unvalidated/improper forensics are the second most common cause of wrongful convictions.4

Although the Supreme Court sought to reduce the amount of unscientific evidence admitted in

courts, Daubert has proven insufficient to meet this goal in all cases. Daubert’s flaws are

especially pertinent in criminal cases, in which the penalty for a finding of guilt is loss of liberty,

and in extreme cases, life. Therefore, better understanding Daubert’s weaknesses and

shortcomings is pertinent to lawmakers and jurists interested in maximizing the fairness of the

American justice system. This topic is timely and relevant as prisoners are increasingly

exonerated after reevaluations of faulty forensic evidence.5

5. Despite its apparent shortcomings, the Daubert criteria are arguably more rigorous than the

preceding Frye standard. Daubert was also an improvement upon the FRE, which was initially

3
Lisa R. Fournier, "The Daubert Guidelines: Usefulness, Utilization, and Suggestions for Improving Quality
Control," Journal of Applied Research in Memory and Cognition 5, no. 3 (2016): 308,
doi:10.1016/j.jarmac.2016.06.012.
4
https://www.innocenceproject.org/causes-wrongful-conviction./
5
https://www.nytimes.com/2019/04/20/us/wrongful-convictions-forensic-results.html
 Evan Ulman

permissive to the admission of all expert testimony.6 Over 35 years of jurisprudence in Daubert’s

shadow have proved that the standard laid out in that decision is workable and effective. Many

ongoing DNA exonerations have freed prisoners sentenced prior to the Daubert ruling, when the

rules of admissibility for scientific evidence were more relaxed and disjointed. Civil law

countries largely lack evidentiary standards, and the judge is left to consider the veracity and

weight of all evidence submitted in trial. In this way, Daubert contains far more rigorous

protections for defendants than those provided by other democracies.

6. Daubert has failed to adequately prevent junk science from being admitted into courtrooms.

As a result, innocent people have been convicted on evidence which erroneously suggests their

guilt. The FRE should be improved by removing the burden on judges to determine the reliability

of scientific evidence. Standards review boards, scientific advisory groups, specialized “science

courts,” and specialized training for judges interested in hearing highly technical cases are all

viable alternatives to the Daubert standard that Congress and state legislatures should consider

adopting.

7. I plan to go about answering my research question by summarizing and building on the

existing literature to critically analyze Daubert’s shortcomings, specifically in the criminal law

context. While scholars have rightly criticized the Supreme Court’s reasoning in Daubert, most

analysis focuses on civil proceedings, specifically torts and personal injury law. More attention

needs to be paid to the admission of faulty evidence in criminal trials, in which the stakes for the

defendant are much higher. While most of my evidence will not be original, I intend for my

analysis to improve upon the existing literature by situating Daubert in a comparative context.

https://heinonline.org/HOL/Page?collection=journals&handle=hein.journals/cdozo15&id=2165&men_tab=srchresul
ts
 Evan Ulman

Many scholars have focused exclusively on the federal rules, ignoring the discrepancy between

state implementations of Daubert. International comparisons are similarly lacking. My research

question in normative, and I will conclude my paper with policy recommendations aimed at

federal and state legislators.

8. My evidence will be primarily qualitative. I will rely on secondary scholarly accounts, law

review articles, legal documents, interviews with judges, news accounts, and whitepapers in

researching my thesis.