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How Daubert And Its Progeny Have Failed Criminalistics Evidence And A Few Things The Judiciary Could Do About It, David H. Kaye Jan 2018

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 ...


Firearm-Mark Evidence: Looking Back And Looking Ahead, David H. Kaye Jan 2018

Firearm-Mark Evidence: Looking Back And Looking Ahead, David H. Kaye

Journal Articles

This article, written as a contribution to a festschrift for Paul Giannelli, surveys the development of the law on one type of feature-matching evidence that repeatedly attracted Professor Giannelli’s attention — “firearm-mark evidence.” By inspecting toolmarks on bullets or spent cartridge cases, firearms examiners can supply valuable information on whether a particular gun fired the ammunition in question. But the limits on this information have not always been respected in court, and a growing number of opinions have tried to address this fact.

The article explains how the courts have moved from a position of skepticism of the ability of ...


Getting Beyond Intuition In The Probable Cause Inquiry, Erica R. Goldberg Jan 2013

Getting Beyond Intuition In The Probable Cause Inquiry, Erica R. Goldberg

Journal Articles

Courts are proudly resigned to the fact that the probable cause inquiry is “nontechnical.” In order to conduct a search or make an arrest, police need to satisfy the probable cause standard, which the Supreme Court has deemed “incapable of precise definition or quantification into percentages.” The flexibility of this standard enables courts to defer to police officers’ reasonable judgments and expert intuitions in unique situations. However, police officers are increasingly using investigative techniques that replace their own observational skills with test results from some other source, such as drug sniffing dogs, facial recognition technology, and DNA matching. The reliability ...


The “Ensuing Loss” Clause In Insurance Policies: The Forgotten And Misunderstood Antidote To Anti-Concurrent Causation Exclusions, Chris French Jan 2012

The “Ensuing Loss” Clause In Insurance Policies: The Forgotten And Misunderstood Antidote To Anti-Concurrent Causation Exclusions, Chris French

Journal Articles

As a result of the 1906 earthquake and fire in San Francisco which destroyed the city, a clause known as the “ensuing loss” clause was created to address concurrent causation situations in which a loss follows both a covered peril and an excluded peril. Ensuing loss clauses appear in the exclusions section of such policies and in essence they provide that coverage for a loss caused by an excluded peril is nonetheless covered if the loss “ensues” from a covered peril. Today, ensuing loss clauses are found in “all risk” property and homeowners policies, which cover all losses except for ...


Probability, Individualization, And Uniqueness In Forensic Science Evidence: Listening To The Academies, David H. Kaye Jan 2010

Probability, Individualization, And Uniqueness In Forensic Science Evidence: Listening To The Academies, David H. Kaye

Journal Articles

Day in and day out, criminalists testify to positive, uniquely specific identifications of fingerprints, bullets, handwriting, and other trace evidence. A committee of the National Academy of Sciences, building on the writing of academic commentators, has called for sweeping changes in the presentation and production of evidence of identification. These include some form of circumscribed and standardized testimony. But the Academy report is short on the specifics of the testimony that would be legally and professionally allowable. This essay outlines possible types of testimony that might harmonize the testimony of criminalists with the actual state of forensic science. It does ...


'False But Highly Persuasive:' How Wrong Were The Probability Estimates In Mcdaniel V. Brown?, David H. Kaye Jan 2009

'False But Highly Persuasive:' How Wrong Were The Probability Estimates In Mcdaniel V. Brown?, David H. Kaye

Journal Articles

In McDaniel v. Brown, the Supreme Court will review the use of DNA evidence in a 1994 trial for sexual assault and attempted murder. The Court granted certiorari to consider two procedural issues - the standard of federal postconviction review of a state jury verdict for sufficiency of the evidence, and the district court's decision to allow the prisoner to supplement the record of trials, appeals, and state postconviction proceedings with a geneticist's letter twelve years after the trial.

This essay clarifies the nature and extent of the errors in the presentation of the DNA evidence in Brown. It ...


Rounding Up The Usual Suspects: A Logical And Legal Analysis Of Dna Trawling Cases, David H. Kaye Jan 2009

Rounding Up The Usual Suspects: A Logical And Legal Analysis Of Dna Trawling Cases, David H. Kaye

Journal Articles

Courts are beginning to confront a problem that has divided the scientific community - whether identifying a defendant by fishing through a database of DNA types to find a match to a crime-scene sample reduces the significance of a match. For years, the problem seemed academic. Now that the U.S. has more than five million DNA profiles from convicted offenders and suspects in a national, computer-searchable database, the question has assumed more urgency. Increasingly, individuals are being charged with crimes as a result of a match between their recorded profile and the DNA from a victim or scene of a ...


Case Comment - People V. Nelson: A Tale Of Two Statistics, David H. Kaye Jan 2008

Case Comment - People V. Nelson: A Tale Of Two Statistics, David H. Kaye

Journal Articles

In recent years, defendants who were identified as a result of a search through a database of DNA profiles have argued that the probability that a randomly selected person would match a crime-scene stain overstates the probative value of the match. The statistical literature is divided, with most statisticians who have written on the subject rejecting this claim. In People v. Nelson, the Supreme Court of California held that when the random-match probability is so small as to make it exceedingly unlikely that any unrelated individual has the incriminating DNA profile, this statistic is admissible in a database-search case. In ...


The Science Of Dna Identification: From The Laboratory To The Courtroom (And Beyond), David H. Kaye Jan 2007

The Science Of Dna Identification: From The Laboratory To The Courtroom (And Beyond), David H. Kaye

Journal Articles

This article focuses on sequences of DNA base-pairs, which are becoming increasingly important in the field of law. These DNA sequences are used by forensic scientists to discover evidence such as blood stains, semen, saliva, and hair, and has become highly useful in the courtroom with regard to exonerating the innocent and convicting the guilty. Part I of the article examines how courts may (or may not) admit DNA evidence in court through four phases: uncritical acceptance; serious challenges to analytical methods and statistical interpretation of the results; renewed acceptance of DNA evidence; and acceptance of advance systems of DNA ...


Evidence Engendered, Kit Kinports Jan 1991

Evidence Engendered, Kit Kinports

Journal Articles

Part I of this article briefly describes feminist legal theory and its evolution. Part II then discusses the extent to which evidence as a whole is a gendered topic that reflects predominantly male traits and ideals, and Part III analyzes various specific evidentiary doctrines from a feminist perspective. Finally, Part IV examines way of incorporating feminist theories in teaching an evidence course.


The Validity Of Tests: Caveant Omnes, David H. Kaye Jan 1987

The Validity Of Tests: Caveant Omnes, David H. Kaye

Journal Articles

A great debate swirls about the use of polygraph tests in criminal cases. Similar concerns about individual privacy and freedom arise with proposals and projects involving widespread testing of government employees for drugs and deception. Required diagnostic testing for certain diseases - most notoriously, for AIDS - raises similar concerns. Incorrect conclusions about who has taken illicit drugs, who has AIDS, and who is lying can be devastating. Yet, perfect knowledge is unattainable. Errors are inevitable. Questions of what the tendency is for these tests to err, which measures are appropriate for deciding whether to use a screening test, and what measures ...


Do We Need A Calculus Of Weight To Understand Proof Beyond A Reasonable Doubt?, David H. Kaye Jan 1986

Do We Need A Calculus Of Weight To Understand Proof Beyond A Reasonable Doubt?, David H. Kaye

Journal Articles

The commentary on a paper by L.J. Cohen, prepared for a symposium on probability and inference in the law of evidence, shows that the legal requirement of proof beyond a reasonable doubt can be understood simply as demanding a sufficiently high probability that the prosecution's narrative or story of the facts, which captures all the elements of the offense, is true. No separate measure of the "weight" of the totality of the evidence is required to understand the burden of persuasion. Any incompleteness in the evidence can be accounted for by a conditional probability that includes the presence ...