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Full-Text Articles in Law
How Daubert And Its Progeny Have Failed Criminalistics Evidence And A Few Things The Judiciary Could Do About It, David H. Kaye
How Daubert And Its Progeny Have Failed Criminalistics Evidence And A Few Things The Judiciary Could Do About It, David H. Kaye
Journal Articles
A recent report of the President’s Council of Advisors on Science and Technology questioned the validity of several types of criminalistics identification evidence and recommended “a best practices manual and an Advisory Committee note, providing guidance to Federal judges concerning the admissibility under Rule 702 of expert testimony based on forensic feature-comparison methods.” This article supplies information on why and how judicial bodies concerned with possible rules changes—and courts applying the current rules—can improve their regulation of criminalistics identification evidence. First, it describes how courts have failed to faithfully apply Daubert v. Merrell Dow Pharmaceutical’s criteria for scientific validity to …
Cell Phones, Brain Cancer, And Scientific Outliers In Murray V. Motorola, David H. Kaye
Cell Phones, Brain Cancer, And Scientific Outliers In Murray V. Motorola, David H. Kaye
Journal Articles
Pending before the District of Columbia's highest court in a case asking whether cell phones can cause cancer is whether to replace the jurisdiction's venerable Frye standard for reviewing the admissibility of scientific evidence with the approach adopted by the U.S. Supreme Court in Daubert v. Merrell Dow. The author analyzes one aspect of the two evidentiary standards that leads him to question the trial judge's suggestion in Murray v. Motorola that adopting the Daubert perspective would allow greater leeway in excluding the plaintiff's evidence.
Death By Daubert: The Continued Attack On Private Antitrust, Christine P. Bartholomew
Death By Daubert: The Continued Attack On Private Antitrust, Christine P. Bartholomew
Journal Articles
In 2011, with five words of dicta, the Supreme Court opened Pandora’s box for private antitrust enforcement. By suggesting trial courts must evaluate the admissibility of expert testimony at class certification, the Court placed a significant obstacle in the path of antitrust class actions. Following the Supreme Court’s lead, most courts now permit parties to bring expert challenges far earlier than the traditional summary judgment or pretrial timing. Premature rejection of expert testimony dooms budding private antitrust suits — cases that play an essential role in modern antitrust enforcement. The dangers for private antitrust plaintiffs are compounded by the Court’s …
Choice And Boundary Problems In Logerquist, Hummert, And Kumho Tire, David H. Kaye
Choice And Boundary Problems In Logerquist, Hummert, And Kumho Tire, David H. Kaye
Journal Articles
This article, part of a symposium on the opinion of the Arizona Supreme Court in Logerquist v. McVey, questions that court’s rationales for refusing to apply heightened scrutiny to psychiatric testimony about the retrieval of repressed memories. It also challenges the court’s use of a “personal observations” exception to the heightened scrutiny standard of Frye v. United States. It proposes that a better solution to problems of scientific and expert evidence would be to adopt a sliding scale that attends to the use to which the evidence is put and the degree to which it has been shown to be …