Law Commons^™

Embracing Deference, Edward K. Cheng, Elodie O. Currier, Payton B. Hampton

Vanderbilt Law School Faculty Publications

A fundamental conceptual problem has long dogged discussions about scientific and other expert evidence in the courtroom. In American law, the problem was most famously posed by Judge Learned Hand, who asked: "[H]ow can the jury judge between two statements each founded upon an experience confessedly foreign in kind to their own? It is just because they are incompetent for such a task that the expert is necessary at all." This puzzle, sometimes known as the "expert paradox," is quite general. It applies not only to the jury as factfinder, but also to the judge as gate- keeper under the …

The Consensus Rule: A New Approach To Scientific Evidence, Edward K. Cheng

Vanderbilt Law School Faculty Publications

Founded on good intentions but unrealistic expectations, the dominant Daubert framework for handling expert and scientific evidence should be scrapped. Daubert asks judges and jurors to make substantively expert determinations, a task they are epistemically incompetent to perform as laypersons. As an alternative, this Article proposes a new framework for handling expert evidence. It draws from the social and philosophical literature on expertise and begins with a basic question: How can laypersons make intelligent decisions about expert topics? From there, it builds its evidentiary approach, which ultimately results in an inference rule focused on expert communities. Specifically, when dealing with …

Technological Tethereds: Potential Impact Of Untrustworthy Artificial Intelligence In Criminal Justice Risk Assessment Instruments, Sonia M. Gipson Rankin

Washington and Lee Law Review

Issues of racial inequality and violence are front and center today, as are issues surrounding artificial intelligence (“AI”). This Article, written by a law professor who is also a computer scientist, takes a deep dive into understanding how and why hacked and rogue AI creates unlawful and unfair outcomes, particularly for persons of color.

Black Americans are disproportionally featured in criminal justice, and their stories are obfuscated. The seemingly endless back-to-back murders of George Floyd, Breonna Taylor, Ahmaud Arbery, and heartbreakingly countless others have finally shaken the United States from its slumbering journey towards intentional criminal justice reform. Myths about …

Controlling The Jury-Teaching Function, Richard D. Friedman

Articles

When evidence with a scientific basis is offered, two fundamental questions arise. First, should it be admitted? Second, if so, how should it be assessed? There are numerous participants who might play a role in deciding these questions—the jury (on the second question only), the parties (through counsel), expert witnesses on each side, the trial court, the forces controlling the judicial system (which include, but are not limited to, the appellate courts), and the scientific establishment. In this Article, I will suggest that together, the last two—the forces controlling the judicial system and the scientific establishment—have a large role to …

Cabining Judicial Discretion Over Forensic Evidence With A New Special Relevance Rule, Emma F.E. Shoucair

Michigan Law Review

Modern forensic evidence suffers from a number of flaws, including insufficient scientific grounding, exaggerated testimony, lack of uniform best practices, and an inefficacious standard for admission that regularly allows judges to admit scientifically unsound evidence. This Note discusses these problems, lays out the current landscape of forensic science reform, and suggests the addition of a new special relevance rule to the Federal Rules of Evidence (and similar rules in state evidence codes). This proposed rule would cabin judicial discretion to admit non-DNA forensic evidence by barring prosecutorial introduction of such evidence in criminal trials absent a competing defense expert or …

Scientific Trials--In The Laboratories, Not The Courts, Nicholas Bagley, Aaron E. Carroll, Pieter A. Cohen

Articles

In 2015, one of us published a peer-reviewed study, together with colleagues at the University of California, San Francisco, replicating prior research from the US Food and Drug Administration (FDA) detecting a designer stimulant, β-methylphenylethylamine, in sports, weight loss, and “cognitive function” supplements sold in the United States. The confirmatory study prompted the FDA to take enforcement action against companies selling the stimulant as a dietary ingredient. One of the companies that received an FDA warning letter sued the study’s authors for $200 million in damages for libel, claiming, without supporting scientific evidence, that multiple statements in the article were …

Hypothesis Testing In Law And Forensic Science: A Memorandum, David H. Kaye

Journal Articles

The Organization of Scientific Area Committees for Forensic Science (OSAC), was established to promote and develop forensic-science standards based on sound scientific principles. One of the first standards to be approved deals with declaring fragments of glass to be either distinguishable or indistinguishable in their chemical composition. This determination is important when it is suspected that small fragments associated with a defendant came from the scene of a crime involving broken glass. Because of instrumental measurement error, even fragments with identical elemental concentrations will display some differences. To account for measurement error, the standard uses statistical hypothesis tests that presume …

The Academy Standards Board For Firearms And Toolmarks, Robert M. Sanger

Robert M. Sanger

Ultracrepidarianism In Forensic Science: The Hair Evidence Debacle, David H. Kaye

David Kaye

For over 130 years, scientific sleuths have been inspecting hairs under microscopes. Late in 2012, the FBI, the Innocence Project, and the National Association of Criminal Defense Lawyers joined forces to review thousands of microscopic hair comparisons performed by FBI examiners over several of those decades. The results have been astounding. Based on the first few hundred cases in which hairs were said to match, it appears that examiners “exceeded the limits of science” in over 90% of their reports or testimony. The disclosure of this statistic has led to charges that the FBI “faked an entire field of forensic …

How Good Is Good Enough?: Expert Evidence Under Daubert And Kuhmo, David H. Kaye, David L. Faigman, Michael J. Saks, Joseph Sanders

David Kaye

This essay is a response to Professor Edward Imwinkelried's article, "Should the Courts Incorporate a Best Evidence Rule into the Standard Determining the Admissibility of Scientific Testimony?: Enough is Enough When it is not the Best." The authors have two basic points. First, the authors wish to make it clear that they never proposed the "best evidence rule" that he so vigorously attacks, and they think his suggestion that they did so is strained. Second, they wish to reiterate that courts sometimes should do more than they have to ensure that expert testimony is reasonably sound. The important debate underway …

Confronting Science: Expert Evidence And The Confrontation Clause, David H. Kaye, Jennifer L. Mnookin

David Kaye

In Crawford v Washington, the Supreme Court substantially changed its understanding of how the Confrontation Clause applies to hearsay evidence. Since then, the Court has issued three bitterly contested expert-evidence-related Confrontation Clause decisions, and each one has generated at least as many questions as answers. This article analyzes this trilogy of cases, especially the most recent, Williams v Illinois.

In Williams, the Court issued a bewildering array of opinions in which majority support for admitting the opinion of a DNA analyst about tests that she did not perform was awkwardly knitted together out of several incompatible doctrinal …

Amicus Brief: Kumho Tire V. Carmichael, Neil Vidmar, Richard Lempert, Shari Diamond, Valerie Hans, Stephan Landsman, Robert Maccoun, Joseph Sanders, Harmon Hosch, Saul Kassin, Marc Galanter, Theodore Eisenberg, Stephen Daniels, Edith Greene, Joanne Martin, Steven Penrod, James Richardson, Larry Heuer, Irwin Horowitz

Robert MacCoun

This brief addresses the issue of jury performance and jury responses to expert testimony. It reviews and summaries a substantial body of research evidence about jury behavior that has been produced over the past quarter century. The great weight of that evidence challenges the view that jurors abdicate their responsibilities as fact finders when faced with expert evidence or that they are pro-plaintiff, anti-defendant, and anti-business.

The Petitioners and amici on behalf of petitioners make a number of overlapping, but empirically unsupported, assertions about jury behavior in response to expert testimony, namely that juries are frequently incapable of critically evaluation …

Science On Trial, Valerie P. Hans

Valerie P. Hans

The increasing complexity of both criminal and civil jury trials raises a host of issues for lawyers and judges. For the litigator, the first question is whether a jury can be trusted with a case that turns on highly technical evidence. For the trial judge, there are decisions about the admissibility of expert testimony, whether it is based on sound science, and whether a jury is likely to be misled by scientific claims. Should the judge permit jury innovations such as note taking, question asking, and juror discussions of evidence during the trial, hoping to increase jury comprehension of the …

Can Jury Trial Innovations Improve Juror Understanding Of Dna Evidence?, B. Michael Dann, Valerie P. Hans, David H. Kaye

Valerie P. Hans

A single spot of blood on a pink windowsill will tell investigators who broke a windowpane, turned a lock, and kidnapped 2-year-old Molly Evans from her bedroom in the middle of the night. An expert witness will testify that the DNA profile of the blood evidence recovered from the windowsill was entered into CODIS, an electronic database of DNA profiles. That process yielded a “hit,” identifying the defendant as the most likely source of the blood inside Molly’s room. But will jurors be able to understand the expert’s intricate analysis and use it to reach a verdict? And what—if any—steps …

Testing Jury Reforms, Valerie P. Hans, B. Michael Dann, David H. Kaye, Erin J. Farley, Stephanie Albertson

Valerie P. Hans

DNA evidence has become a key law enforcement tool and is increasingly presented in criminal trials in Delaware and elsewhere. The integrity of the criminal trial process turns upon the jury's ability to understand DNA evidence and to evaluate properly the testimony of experts. How well do they do? Can we assist them in the process?

Statistics In The Jury Box: How Jurors Respond To Mitochondrial Dna Match Probabilities, David H. Kaye, Valerie P. Hans, B. Michael Dann, Erin J. Farley, Stephanie Albertson

Valerie P. Hans

This article describes parts of an unusually realistic experiment on the comprehension of expert testimony on mitochondrial DNA (mtDNA) sequencing in a criminal trial for robbery. Specifically, we examine how jurors who responded to summonses for jury duty evaluated portions of videotaped testimony involving probabilities and statistics. Although some jurors showed susceptibility to classic fallacies in interpreting conditional probabilities, the jurors as a whole were not overwhelmed by a 99.98% exclusion probability that the prosecution presented. Cognitive errors favoring the defense were more prevalent than ones favoring the prosecution. These findings lend scant support to the legal argument that mtDNA …

Judges, Juries, And Scientific Evidence, Valerie P. Hans

Valerie P. Hans

The rise in scientific evidence offered in American jury trials, along with court rulings thrusting judges into the business of assessing the soundness of scientific evidence, have produced challenges for judge and jury alike. Many judges have taken up the duty of becoming “amateur scientists.” But what about juries? Surely they too could benefit from assistance as they attempt to master and apply complex testimony about scientific matters during the course of a trial. Concerns about the jury’s ability to understand, critically evaluate, and employ scientific evidence in deciding complex trials have led to many suggestions for reform. This article …

Dumping Daubert, Popping Popper And Falsifying Falsifiability: A Re-Assessment Of First Principles, Barbara P. Billauer Esq

barbara p billauer esq

Abstract: The Daubert mantra demands that judges, acting as gatekeepers, prevent para, pseudo or bad science from infiltrating the courtroom. To do so, the Judges must first determine what is ‘science’ and what is ‘good science.’ It is submitted that Daubert is deeply polluted with the notions of Karl Popper who sets ‘falsifiability’ and ‘falsification’ as the demarcation line for that determination. This philosophy has intractably infected case law, leading to bad decisions immortalized as stare decisis, and an unworkable system of decision-making, which negatively impacts litigant expectations. Among other problems is the intolerance of Popper’s system for multiple causation, …

Ultracrepidarianism In Forensic Science: The Hair Evidence Debacle, David H. Kaye

Journal Articles

For over 130 years, scientific sleuths have been inspecting hairs under microscopes. Late in 2012, the FBI, the Innocence Project, and the National Association of Criminal Defense Lawyers joined forces to review thousands of microscopic hair comparisons performed by FBI examiners over several of those decades. The results have been astounding. Based on the first few hundred cases in which hairs were said to match, it appears that examiners “exceeded the limits of science” in over 90% of their reports or testimony. The disclosure of this statistic has led to charges that the FBI “faked an entire field of forensic …

Adaptation And The Courtroom: Judging Climate Science, Kirsten Engel, Jonathan Overpeck

Michigan Journal of Environmental & Administrative Law

Climate science is increasingly showing up in courtroom disputes over the duty to adapt to climate change. While judges play a critical role in evaluating scientific evidence, they are not apt to be familiar with the basic methods of climate science nor with the role played by peer review, publication, and training of climate scientists. This Article is an attempt to educate the bench and the bar on the basics of the discipline of climate science, which we contend is a distinct scientific discipline. We propose a series of principles to guide a judge’s evaluation of the reliability and weight …

Junk Philosophy Of Science?: The Paradox Of Expertise And Interdisciplinarity In Federal Courts, David S. Caudill, Richard E. Redding

David S Caudill

No abstract provided.

Response To Haack And Edmond/Roach Articles, Nayha Acharya

Dalhousie Law Journal

I am grateful to Professors Edmond and Roach' and Professor Haack2 for their thoughtful replies to my paper, Law 's Treatment of Science: From Idealizationto Understanding.Much like my experience after reading "A Contextual Approach to the Admissibility of the State's Forensic Science and Medical Evidence,"' and Haack's contributions, 4 I have come away from reviewing Edmond and Roach and Haack's replies with a heightened awareness that the admissibility of scientific evidence is significant and complicated. Both replies have raised important concerns that have demanded further attention from me, which I turn to here. My response to Edmond and Roach's Reply …

Making Method Visible: Improving The Quality Of Science-Based Regulation, Pasky Pascual, Wendy Wagner, Elizabeth Fisher

Michigan Journal of Environmental & Administrative Law

Scientific inferences are theories about how the world works that scientists formulate based on their observations. One of the most difficult issues at the intersection of law and science is to determine whether the weight of evidence supports one scientific inference versus other competing interpretations of the observations. In administrative law, this difficulty is exacerbated by the behavior of both the courts and regulatory agencies. Agencies seldom achieve the requisite visibility that explains the analytical methods they use to reach their scientific inferences. Courts—because they appreciate neither the variety of inferential methods nor their epistemic foundations—do not demand this level …

Law's Treatment Of Science: From Idealization To Understanding, Nayha Acharya

Dalhousie Law Journal

Increasing reliance on scientific evidence in litigation has created a demand for discussions directed at enabling a legitimate interaction between science and law The article develops the notion ofprocedural legitimacy-that adherence to legal procedure maintains the legitimacy of the adjudicative system and its outcomes -and applies it to determining how best to admit and use scientific evidence. The problem of undervaluing procedural legitimacy is illustrated through a commentary on contributions to the science and law discussion of Edmond and Roach, and Haack. The author's thesis is that maintaining adjudicative legitimacy depends on procedural rules being applied as vigilantly to science …

Confronting Science: Expert Evidence And The Confrontation Clause, David H. Kaye, Jennifer L. Mnookin

Journal Articles

In Crawford v Washington, the Supreme Court substantially changed its understanding of how the Confrontation Clause applies to hearsay evidence. Since then, the Court has issued three bitterly contested expert-evidence-related Confrontation Clause decisions, and each one has generated at least as many questions as answers. This article analyzes this trilogy of cases, especially the most recent, Williams v Illinois.

In Williams, the Court issued a bewildering array of opinions in which majority support for admitting the opinion of a DNA analyst about tests that she did not perform was awkwardly knitted together out of several incompatible doctrinal …

Being Pragmatic About Forensic Linguistics, Edward K. Cheng

Vanderbilt Law School Faculty Publications

This article aims to provide some legal context to the Authorship Attribution Workshop (“conference”). In particular, I want to offer some pragmatic observations on what courts will likely demand of forensic linguistics experts and tentatively suggest what the field should aspire to in both the short and long run.

Speaking Science To Law, Deborah Hussey Freeland

Deborah M. Hussey Freeland

involving a strong scientific consensus, the powerful qualities of scientific knowledge are easily lost in translation. Moreover, even prominent scientists who are committed to providing accurate information to legal fact-finders may suffer reputational harm simply for participating in an adversarial process.

This article analyzes the connection between law and science through the expert witness from the perspectives of epistemology and cross-cultural communication, focusing on the distinct ways in which scientists and lawyers know, value and express their knowledge. When a lawyer meets with a scientific expert witness, more confusion attends their interaction than either likely realizes. Linguistic translation is necessary--but …

Twenty-First Century Forensic Science Challenges For Trial Judges In Criminal Cases: Where The "Polybutadiene" Meets The "Bitumen", Hon. Donald E. Shelton

Hon. Donald E. Shelton

This artice discusses the challenges faced by trial judges in crimnal cases in fulfilling their Daubert "gatekeeping" role in the face of rapid advancements in forensic science. Admissibility questions for various forms of scientific evidence are reviewed, from DNA to fingerprints to social science "syndrome" evidence. The article discusses the pretrial issues presented by DNA databases, search issues and limitations problems as well as the impact of forensic science developments on juror expectations. Finally, forensic science issues regarding trial conduct are discussed, including voir dire, arguments and jury instructions,

An Indirect-Effects Model Of Mediated Adjudication: The Csi Myth, The Tech Effect, And Metropolitan Jurors' Expectations For Scientific Evidence, Hon. Donald E. Shelton, Young S. Kim, Gregg Barak

Vanderbilt Journal of Entertainment & Technology Law

Part I of this article defines the "CSI effect," a phrase has come to have many different meanings ascribed to it. It emphasizes the epistemological importance of first describing the effect of the "CSI effect" as observed in juror behavior documented in a new study conducted in Wayne County (Detroit), Michigan, and then looking at causative factors that may be related to an explanation of those observed effects. Part II describes the methodology of the Wayne County study, provides a descriptive analysis of Wayne County jurors, and compares the jurors demographically to the Washtenaw County jurors who were surveyed in …

Science On Trial, Valerie P. Hans

Cornell Law Faculty Publications

The increasing complexity of both criminal and civil jury trials raises a host of issues for lawyers and judges. For the litigator, the first question is whether a jury can be trusted with a case that turns on highly technical evidence. For the trial judge, there are decisions about the admissibility of expert testimony, whether it is based on sound science, and whether a jury is likely to be misled by scientific claims. Should the judge permit jury innovations such as note taking, question asking, and juror discussions of evidence during the trial, hoping to increase jury comprehension of the …