professionals has not done nearly as much as it reasonably could have done to establish either the validity of its approach or the accuracy of its practitioners’ conclusions,”86 and the courts have been “utterly ineffective” in addressing this problem.87


Prophetically, the Daubert decision observed that “there are important differences between the quest for truth in the courtroom and the quest for truth in the laboratory. Scientific conclusions are subject to perpetual revision. Law, on the other hand, must resolve disputes finally and quickly.”88 But because accused parties in criminal cases are convicted on the basis of testimony from forensic science experts, much depends upon whether the evidence offered is reliable. Furthermore, in addition to protecting innocent persons from being convicted of crimes that they did not commit, we are also seeking to protect society from persons who have committed criminal acts. Law enforcement officials and the members of society they serve need to be assured that forensic techniques are reliable. Therefore, we must limit the risk of having the reliability of certain forensic science methodologies condoned by the courts before the techniques have been properly studied and their accuracy verified. “[T]here is no evident reason why [‘rigorous, systematic’] research would be infeasible.”89 However, some courts appear to be loath to insist on such research as a condition of admitting forensic science evidence in criminal cases, perhaps because to do so would likely “demand more by way of validation than the disciplines can presently offer.”90

Some legal scholars think that, “[o]ver time, if Daubert does not come


Mnookin, op. cit., supra note 79.


Neufeld, op. cit., supra note 44, p. S109. In Green, 405 F. Supp. 2d at 109 n.6, Judge Gertner also noted that:

[R]ecent reexaminations of relatively established forensic testimony have produced striking results. Saks and Koehler, for example, report that forensic testing errors were responsible for wrongful convictions in 63% of the 86 DNA Exoneration cases reported by the Innocence Project at Cardozo Law School. Michael Saks and Jonathan Koehler, The Coming Paradigm Shift in Forensic Identification Science, 309 Science 892 (2005). This only reinforces the importance of careful analysis of expert testimony in this case.

See also S.R. Gross, Convicting the Innocent (U. Mich. Law Sch. Pub. Law & Legal Theory Working Paper Series, Working Paper No. 103, 2008). Available at (forthcoming in Annual Review of Law & Social Science 2008).


Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 596-97 (1993).


J. Griffin and D.J. LaMagna. 2002. Daubert challenges to forensic evidence: Ballistics next on the firing line. The Champion. September-October:21.


Ibid. See, e.g., Crisp, 324 F.3d at 270.

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