Given this view of Rule 702—which makes clear that “technical or other specialized knowledge” may be credited as expert testimony “so long as the principles and methods are reliable and applied reliably to the facts of the case”—it is not surprising that the courts might be hard pressed, under existing standards of admissibility, to hold some forensic science practitioners to the more demanding standards of the traditional sciences.42

AN OVERVIEW OF JUDICIAL DISPOSITIONS OF DAUBERT-TYPE QUESTIONS

Assessing the admission of forensic evidence in litigation is no small undertaking, given the huge number of cases in which such evidence is proffered. Moreover, although Daubert remains the standard by which admissibility in federal cases is measured under Federal Rule of Evidence 702, states remain free to apply other evidentiary standards. Some states still apply some version of the Frye standard, while others have adopted Daubert or some version of the Daubert test.43 Considering the patchwork of state standards and the fact that “[s]tate courts receive 200 times more criminal prosecutions than federal courts,” because “[f]orensic science is used most commonly in crimes of violence, and most crimes of violence are tried in state court,”44 a comprehensive overview would be difficult to create.

The focus of this section and succeeding sections of this chapter will be on judicial dispositions of Daubert-type questions in criminal cases in the federal courts. The reason for this is that, although not every state has adopted the Daubert standard, there is little doubt that Daubert has effectively set a norm that applies in every federal court and in a great many state jurisdictions. It cannot be ignored, and the reported federal cases give the best evidence of how Daubert is applied by the judiciary.

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 to protect the rights of accused parties:

[Daubert] obligated trial court judges to assume the role of “gatekeepers” and to exclude proffered scientific evidence unless it rested on scientifically valid reasoning and methodology. Many thought Daubert would be the

42

See generally Giannelli and Imwinkelried, op. cit., for thoughtful discussions of the admissibility of some forms of forensic science testimony as technical or other specialized knowledge under Rule 702.

43

See generally D.E. Bernstein and J.D. Jackson. The Daubert trilogy in the states. 44 JURIMETRICS J. 351 (2004).

44

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, S110.



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