Daubert and its progeny have engendered confusion and controversy. In particular, judicial dispositions of Daubert-type questions in criminal cases have been criticized by some lawyers and scholars who thought that the Supreme Court’s decision would be applied more rigorously.19 If one focuses solely on reported federal appellate decisions, the picture is not appealing to those who have preferred a more rigorous application of Daubert. Federal appellate courts have not with any consistency or clarity imposed standards ensuring the application of scientifically valid reasoning and reliable methodology in criminal cases involving Daubert questions. This is not really surprising, however. The Supreme Court itself described the Daubert standard as “flexible.” This means that, beyond questions of relevance, Daubert offers appellate courts no clear substantive standard by which to review decisions by trial courts. As a result, trial judges exercise great discretion in deciding whether to admit or exclude expert testimony, and their judgments are subject only to a highly deferential “abuse of discretion” standard of review. Although it is difficult to get a clear picture of how trial courts handle Daubert challenges, because many evidentiary rulings are issued without a published opinion and without an appeal, the vast majority of the reported opinions in criminal cases indicate that trial judges rarely exclude or restrict expert testimony offered by prosecutors; most reported opinions also indicate that appellate courts routinely deny appeals contesting trial court decisions admitting forensic evidence against criminal defendants.20 But the reported opinions do not offer in any way a complete sample of federal trial court dispositions of Daubert-type questions in criminal cases.

The situation appears to be very different in civil cases. Plaintiffs and defendants, equally, are more likely to have access to expert witnesses in civil cases, while prosecutors usually have an advantage over most defendants in offering expert testimony in criminal cases. And, ironically, the appellate courts appear to be more willing to second-guess trial court judgments on the admissibility of purported scientific evidence in civil cases than in criminal cases.21

19

See, e.g., P.J. Neufeld. 2005. The (near) irrelevance of Daubert to criminal justice: And some suggestions for reform. American Journal of Public Health 95(Supp.1):S107.

20

Ibid., p. S109.

21

See, e.g., McClain v. Metabolife Int’l, Inc., 401 F.3d 1233 (11th Cir. 2005); Chapman v. Maytag Corp., 297 F.3d 682 (7th Cir. 2002); Goebel v. Denver & Rio Grande W. R.R. Co., 215 F.3d 1083 (10th Cir. 2000); Smith v. Ford Motor Co., 215 F.3d 713 (7th Cir. 2000); Walker v. Soo Line R.R. Co., 208 F.3d 581 (7th Cir. 2000); 1 D.L. Faigman, M.J. Saks, J. Sanders, and E.K. Cheng. 2007-2008. Modern Scientific Evidence: The Law and Science of Expert Testimony. Eagan, MN: Thomson/West, § 1.35, p. 105 (discussing studies suggesting that courts “employ Daubert more lackadaisically in criminal trials—especially in regard to prosecution evidence—than in civil cases—especially in regard to plaintiff evidence”).



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