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 …

Credibility In Empirical Legal Analysis, Hillel J. Bavli

Faculty Journal Articles and Book Chapters

Empirical analysis is central in both legal scholarship and litigation, but it is not credible. Researchers can manipulate data to arrive at any conclusion they wish to obtain. A practice known as data fishing—searching for and selectively reporting methods and results that are favorable to the researcher—entirely invalidates a study’s results by giving rise to false positives and false impressions. Nevertheless, it is prevalent in law, leading to false claims, incorrect verdicts, and destructive policy. In this article, I examine the harm that data fishing in empirical legal research causes. I then build on methods in the sciences to develop …

Junk Science At Sentencing, Maneka Sinha

Faculty Scholarship

Junk science used in criminal trials has contributed to hundreds of wrongful convictions. But the problem is much worse than that. Junk science does not only harm criminal defendants who go to trial, but also the overwhelming majority of defendants—over ninety-five percent—who plead guilty, skip trial, and proceed straight to sentencing.

Scientific, technical, and other specialized evidence (“STS evidence”) is used regularly, and with increasing frequency, at sentencing. Despite this, Federal Rule of Evidence 702 and its state equivalents—which help filter unreliable STS evidence at trials—do not apply at the critical sentencing stage. In fact, at sentencing, no meaningful admissibility …

Changed Science Writs And State Habeas Relief, Valena Beety

Articles by Maurer Faculty

For decades now, the 1996 federal Antiterrorism and Effective Death Penalty Act (AEDPA) has limited the scope and influence of federal courts in post-conviction case review, forcing convicted individuals to rely instead on state habeas proceedings for conviction relief. Due in large part to the 2009 National Academy of Sciences Report, petitions for conviction relief increasingly include challenges to the government’s scientific evidence at trial. These petitions analyze that evidence by comparing the trial evidence to the advancement of scientific findings and scientific knowledge in the years since the trial. State habeas petitions thus provide an avenue for relief from …

The Disappointing History Of Science In The Courtroom: Frye, Daubert, And The Ongoing Crisis Of “Junk Science” In Criminal Trials, Jim Hilbert

Faculty Scholarship

Twenty-five years ago, the Supreme Court decided one of the most important cases concerning the use of science in courtrooms. In Daubert v. Merrell Dow Pharmaceuticals , the Court addressed widespread concerns that courts were admitting unreliable scientific evidence. In addition, lower courts lacked clarity on the status of the previous landmark case for courtroom science, Frye v. United States. In the years leading up to the Daubert decision, policy-makers and legal observers sounded the alarm about the rise in the use of "junk science" by so-called expert witnesses. Some critics went so far as to suggest that American businesses …

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 …

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 …

Sleuthing Scientific Evidence Information On The Internet, Diana Botluk

Faculty Scholarship

No abstract provided.

An Empirical Research Agenda For The Forensic Sciences, Jonathan J. Koehler, John B. Meixner Jr.

Scholarly Works

After the National Academy of Sciences issued a stunning report in 2009 on the unscientific state of many forensic science subfields, forensic science has undergone internal and external scrutiny that it had managed to avoid for decades. Although some reform efforts are underway, forensic science writ large has yet to embrace and settle upon an empirical research agenda that addresses knowledge gaps pertaining to the reliability of its methods. Our paper addresses this problem by proposing a preliminary set of fourteen empirical studies for the forensic sciences. Following a brief discussion of the courtroom treatment of forensic science evidence, we …

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 …

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.

The 2009 Nas Forensic Science Report: A Literature Review, Paul C. Giannelli

Faculty Publications

In February 29, the National Academy of Sciences (NAS) released its report on forensic science: Strengthening Forensic Science in the United States: A Path Forward (29). The popular press immediately trumpeted the report’s release, with headlines such as (1) “Report Urges Overhaul of Crime Lab System,” (2) “Real-life Police Forensics Don’t Resemble ‘CSI’: Reliability is ‘Low or Non-existent,’ Report Finds” and (3) “Science Found Wanting in Nation’s Crime Labs.”

Within three months of its publication, Justice Scalia cited the report in a Supreme Court decision, writing: “Forensic evidence is not uniquely immune from the risk of manipulation. . . Serious …

Brain Scans As Evidence: Truths, Proofs, Lies, And Lessons, Owen D. Jones, Francis X. Shen

Vanderbilt Law School Faculty Publications

This contribution to the Brain Sciences in the Courtroom Symposium identifies and discusses issues important to admissibility determinations when courts confront brain-scan evidence. Through the vehicle of the landmark 2010 federal criminal trial U.S. v. Semrau (which considered, for the first time, the admissibility of brain scans for lie detection purposes) this article highlights critical evidentiary issues involving: 1) experimental design; 2) ecological and external validity; 3) subject compliance with researcher instructions; 4) false positives; and 5) drawing inferences about individuals from group data. The article’s lessons are broadly applicable to the new wave of neurolaw cases now being seen …

Who Must Testify To The Results Of A Forensic Laboratory Test? Bullcoming V. New Mexico, Richard D. Friedman

Articles

Does the Confrontation Clause permit the prosecution to introduce a forensic laboratory report through the in-court testimony of a supervisor or other person who did not perform or observe the reported test?

The Death Penalty In Florida, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This article summarizes the findings and recommendations of the ABA Death Penalty Moratorium Implementation Project's Florida Assessment Team, which I chaired. Relying on an analysis of caselaw, studies, news reports, and interviews, the article describes significant flaws in Florida's death penalty law and practice in nine areas: the police investigative process; the analysis of scientific evidence; the conduct of prosecutors; the qualifications, reimbursement and competence of defense attorneys; the decision-making process of judges; the structure and decision-making process of capital sentencing juries; clemency; the system's reaction to the race of the victim; and the treatment of people with mental disability. …

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 …

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

Cornell Law Faculty Publications

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 …

The Overlapping Magisteria Of Law And Science: When Litigation And Science Collide, William G. Childs

Faculty Scholarship

In this Article, the Author explores two unexpected consequences of joining science and law at the hip, and considers whether these consequences represent reciprocal contamination, or instead cross-fertilization, of law and science. In Part I of this Article, the Author provides a brief review of the evolution of legal standards for the admissibility of what is termed "scientific evidence," including Frye and Daubert and their progeny. In Part II of the Article, the Author gives a (necessarily limited) overview of certain modern scientific paradigms of reliability and he explores the realities of peer reviews and of other institutions in science …

Revisiting 'Dreyfus': A More Complete Account Of A Trial By Mathematics, David H. Kaye

Journal Articles

Legal literature and case law depicts the infamous conviction of Alfred Dreyfus for treason and espionage in 1899 as a prime example of the irresistible power of even grossly fallacious mathematical demonstrations to overwhelm a legal tribunal. This essay shows that Dreyfus is not a case of mathematics run amok, unchecked and uncomprehended. To the contrary, the defects in the mathematical proof were dramatically exposed, and this evidence did not lead Dreyfus's judges to condemn him. This history undercuts the reliance of modern courts and commentators on Dreyfus as an indication or illustration of the alleged dangers of probability evidence …

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

Cornell Law Faculty Publications

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 …

Bite Mark Analysis, Paul C. Giannelli

Faculty Publications

Courts have admitted bite mark comparison evidence in homicide, rape, and child abuse cases. By the 1980s, the technique had gained widespread judicial acceptance. Hundreds of cases have admitted this type of evidence, and no reported case has rejected it. Moreover, some courts speak of bite mark comparison as a "science." Indeed, its acceptance is so well-established that several courts have taken judicial notice of its reliability, implying that the validity of the technique is not subject to reasonable dispute.

Yet, the scientific foundations for bite mark comparisons has never been demonstrated. Such basic issues as the uniqueness of the …

Independent Judicial Research In The "Daubert" Age, Edward K. Cheng

Vanderbilt Law School Faculty Publications

The Supreme Court's Daubert trilogy places judges in the unenviable position of assessing the reliability of often unfamiliar and complex scientific expert testimony. Over the past decade, scholars have therefore explored various ways of helping judges with their new gatekeeping responsibilities. Unfortunately, the two dominant approaches, which focus on doctrinal tests and external assistance mechanisms, have been largely ineffective. This Article advocates for a neglected but important method for improving scientific decision making-independent judicial research. It argues that judges facing unfamiliar and complex scientific admissibility decisions can and should engage in independent library research to better educate themselves about the …

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

Cornell Law Faculty Publications

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 …

Cheating The Constitution, Pamela R. Metzger

Faculty Journal Articles and Book Chapters

It is black letter constitutional law: To prove a criminal offense, the prosecution must prove every element of the offense, by proof beyond a reasonable doubt, and the constitution entitles a defendant to confront and cross-examine all witnesses against him. Yet, for the past thirty years, state legislatures have quietly approved laws that cheat the constitution. By that, I mean that these laws fly, undetected, beneath the constitutional radar while violating fundamental constitutional rights.

Although other constitutional cheats abound, in this article I consider one archetypical cheat: statutes that permit state prosecutors to use hearsay state crime laboratory reports, in …

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

Cornell Law Faculty Publications

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?

Random Numbers, Chaos Theory, And Cogitation: A Search For The Minimal Creativity Standard In Copyright Law, Ralph D. Clifford

Faculty Publications

This article explores the second type of expressive work, those where there is a question if the author’s contribution is qualitatively sufficient, to determine how much creativity and of what type is required to sustain a copyright. Initially, the historic standards of creativity use before Fiest was decided in 1991 will be presented. Then, after a brief discussion of Fiest, the scientific basis of creativity will be explored. Next, the confusion regarding creativity that exists in the lower courts will serve to expose the source of misapplication of the law – a disconnect between how courts perceive creativity and …

Mitochondrial Dna: Emerging Legal Issues, Edward K. Cheng

Vanderbilt Law School Faculty Publications

This article will briefly survey some of the current and emerging legal issues surrounding mtDNA evidence. Parts I and II discuss basic evidentiary questions, including mtDNA's reliability and admissibility under Daubert as well as the potential problem of jury confusion regarding the probative value of mtDNA. Part III considers the broader potential of mtDNA to supplant microscopic hair analysis, a technique often criticized for its subjectivity and high error rate. Finally, Part IV explores the unique privacy concerns raised by the maternal inheritance of mtDNA, specifically in the context of DNA databanks.