would expose it at trial. This “crucible,” however, turned out to be utterly ineffective.



Unlike the extremely well-litigated civil challenges, the criminal defendant’s challenge is usually perfunctory. Even when the most vulnerable forensic sciences—hair microscopy, bite marks, and handwriting—are attacked, the courts routinely affirm admissibility citing earlier decisions rather than facts established at a hearing. Defense lawyers generally fail to build a challenge with appropriate witnesses and new data. Thus, even if inclined to mount a Daubert challenge, they lack the requisite knowledge and skills, as well as the funds, to succeed.80

The reported decisions dealing with judicial dispositions of Daubert-type questions appear to confirm this assessment. As noted above, the courts often “affirm admissibility citing earlier decisions rather than facts established at a hearing.” Much forensic evidence—including, for example, bite marks81 and firearm and toolmark identifications82—is introduced in

80

Neufeld, supra note 44, at S109, S110.

81

There is nothing to indicate that courts review bite mark evidence pursuant to Daubert’s standard of reliability. See, e.g., Milone v. Camp, 22 F.3d 693, 702 (7th Cir. 1994) (denying habeas petition after finding, in part, that the inclusion of bite mark testimony against the defendant had not denied him a fair trial, and stating that “while the science of forensic odontology might have been in its infancy at the time of trial … certainly there is some probative value to comparing an accused’s dentition to bite marks found on the victim.”). Two recent cases might, at first glance, seem to indicate that courts were beginning to seriously evaluate the general credibility of bite mark testimony, but this is not in fact the case. In Burke v. Town of Walpole, 405 F.3d 66 (1st Cir. 2005), the court denied summary judgment to police officers in a 42 U.S.C. § 1983 action where exculpatory DNA evidence that directly contradicted inculpatory bite mark evidence was “intentionally or recklessly withheld from the officer who was actually preparing the warrant application,” ibid., p. 84, resulting in petitioner being wrongfully imprisoned for 41 days. However, the Burke court rejected the petitioner’s claim that the inclusion of bite mark evidence in the arrest warrant had demonstrated “reckless disregard for the truth,” because the method was generally unreliable. Ibid., pp. 82-83. In Ege v. Yukins, 380 F. Supp. 2d 852 (E.D. Mich. 2005), aff’d in part and rev’d in part, 485 F.3d 364 (6th Cir. 2007), the court granted the habeas petition of a defendant whose conviction was based in significant part on bite mark testimony from a later-discredited expert witness. But the disposition in Ege rested primarily on the flaws of one “particular witness and his particular testimony,” not on a judicial evaluation of “the [bite mark] field’s more general shortcomings.” 4 Faigman et al., op. cit., supra note 1, § 36:6, p. 662.

82

There is little to indicate that courts review firearms evidence pursuant to Daubert’s standard of reliability. See e.g., United States v. Hicks, 389 F.3d 514 (5th Cir. 2004) (upholding defendant’s conviction after finding, in part, that it was not an abuse of discretion for the court to admit testimony on shell casing comparisons by the Government’s firearms expert); United States v. Foster, 300 F. Supp. 2d 375 (D. Md. 2004) (denying defendant’s motion to exclude expert firearms testimony). Several federal trial judges, however, have subjected expert firearm testimony to rigorous analysis under Daubert. In United States v. Monteiro, 407 F. Supp. 2d 351 (D. Mass. 2006), Judge Saris concluded that toolmark identification testimony was



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