Evidence Commons^™

Sit, Stay, Overturn: How New Canine Science Is Challenging Courtroom Convictions, Kerolls Gadelrab

Georgia Criminal Law Review

Courts increasingly rely on cadaver dog evidence in criminal trials, treating canine alerts as a reliable form of forensic evidence. This naive acceptance of cadaver dog evidence, coupled with courts’ continued application of out-dated admissibility standards, threatens to perpetuate wrongful convictions in an era of rapidly advancing scientific understanding. This Article argues that courts must develop a new framework for evaluating cadaver dog evidence that incorporates modern scientific research on ca-nine olfaction and scent detection capabilities. While scholars have extensively analyzed various forensic evidence standards post-Daubert, the literature has largely over-looked how recent scientific advances in understanding ca-nine olfaction should …

Frye Is So Last Century: It’S Time For Washington To Get With The Times, Darian Mullen

Seattle Journal of Technology, Environmental, & Innovation Law

This paper argues that Washington State should finally abandon the

Frye test for expert witnesses and adopt the Daubert test used by federal

courts and most states. It begins with a discussion of the background of

expert witnesses in the U.S. court system and its evolution through Frye.

Then, it looks at the increase in drunk driving in Washington State as a

case study for how the public depends on quality science to protect

individuals and punish wrongdoers. Through the case study, it is

apparent that Frye is an unworkable standard that should be superseded

by Daubert.

The Brain Is In Your Court: Evaluating Intellectual Property Infringement Audience Through The Lens Of Neuroscience, Madyson Kent

Washington and Lee Law Review

To protect creations of the mind, the law needs to understand the mind. Thankfully, the rapidly emerging field of neuroscience provides an invaluable glimpse into the inner workings of the human brain. Now that scientific instruments provide a window into the living brain, it is time to reexamine the way intellectual property law decides the outcomes of infringement lawsuits.

Critically examining neuroscience in the context of the law helps to answer the most fundamental question in an intellectual property lawsuit: Was there infringement? A judicial hesitancy to understand the thought processes of artists and creators results in relying on the …

Judges Should Be Discerning Consensus, Not Evaluating Scientific Expertise, David S. Caudill, Harry Collins, Robert Evans

University of Cincinnati Law Review

One of the most constructive critiques of the Daubert admissibility regime is Professor Edward Cheng’s recent proposal for a new Consensus Rule in the Federal Rules of Evidence. Rejecting the notion that judges and juries have the capacity to evaluate scientific expertise, Cheng’s proposal would eliminate Daubert hearings—and judicial gatekeeping concerning expert testimony—and require judges and juries, in their verdicts, to follow consensus in the relevant scientific community. Significantly, Cheng argues that judges and juries would have an easier time identifying consensus than they have in deciding between experts who disagree.

We find Cheng’s emphasis on consensus compelling, and …

Neuropsychological Malingering Determination: The Illusion Of Scientific Lie Detection, Chunlin Leonhard, Christoph Leonhard

Georgia Law Review

Humans believe that other humans lie, especially when stakes are high. Stakes can be very high in a courtroom, from substantial amounts of monetary damages in civil litigation to liberty or life in criminal cases. One of the most frequently disputed issues in U.S. courts is whether litigants are malingering when they allege physical or mental conditions for which they are seeking damages or which would allow them to avoid criminal punishment. Understandably, creating a scientific method to detect lies is very appealing to all persons engaged in lie detection. Neuropsychologists claim that they can use neuropsychological assessment tests (Malingering …

How Florida’S Courts Should Evaluate The Admissibility Of Field Sobriety Testing And Blood Thc Levels Evidence In Marijuana Impaired Driving Prosecutions, Christopher Bomhoff

FIU Law Review

Field sobriety and blood alcohol concentration tests are proven reliable techniques to determine whether a person us under the influence of alcohol. No such technique has been developed to reliably determine whether a person is under the influence of marijuana. However, despite a lack of scientific consensus regarding the reliability of field sobriety and blood toxicology tests to determine marijuana impairment, these methods are routinely used as evidence of guilt in marijuana impaired driving prosecutions. Twenty-four states have legalized the recreational use of marijuana, and Florida appears to be set to join them in the near future. As a result …

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 …

Scientific Excellence In The Forensic Science Community, Alice R. Isenberg, Cary T. Oien

Fordham Law Review Online

This Article was prepared as a companion to the Fordham Law Review Reed Symposium on Forensic Expert Testimony, Daubert, and Rule 702, held on October 27, 2017, at Boston College School of Law. The Symposium took place under the sponsorship of the Judicial Conference Advisory Committee on Evidence Rules. For an overview of the Symposium, see Daniel J. Capra, Foreword: Symposium on Forensic Testimony, Daubert, and Rule 702, 86 Fordham L. Rev. 1459 (2018).

Scientific Validity And Error Rates: A Short Response To The Pcast Report, Ted Robert Hunt

Fordham Law Review Online

This Article was prepared as a companion to the Fordham Law Review Reed Symposium on Forensic Expert Testimony, Daubert, and Rule 702, held on October 27, 2017, at Boston College School of Law. The Symposium took place under the sponsorship of the Judicial Conference Advisory Committee on Evidence Rules. For an overview of the Symposium, see Daniel J. Capra, Foreword: Symposium on Forensic Testimony, Daubert, and Rule 702, 86 Fordham L. Rev. 1459 (2018).

The Reliability Of The Adversarial System To Assess The Scientific Validity Of Forensic Evidence, Andrew D. Goldsmith

Fordham Law Review Online

This Article was prepared as a companion to the Fordham Law Review Reed Symposium on Forensic Expert Testimony, Daubert, and Rule 702, held on October 27, 2017, at Boston College School of Law. The Symposium took place under the sponsorship of the Judicial Conference Advisory Committee on Evidence Rules. For an overview of the Symposium, see Daniel J. Capra, Foreword: Symposium on Forensic Testimony, Daubert, and Rule 702, 86 Fordham L. Rev. 1459 (2018).

Life After Daubert V. Merrell Dow: Maine As A Case Law Laboratory For Evidence Rule 702 Without Frye, Leigh Stephens Mccarthy

Maine Law Review

In reaching its recent decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., the United States Supreme Court grappled not with case law but with fundamental questions about the nature of science and its role in law. The court in Daubert addressed the problematic issue of admissibility of expert scientific testimony. In the end the Court rejected as an exclusionary rule the venerable standard set in 1923 by Frye v. United States. Frye held that scientific testimony was to be excluded unless it had gained “general acceptance” in its field. Daubert held that Rule 702 of the Federal Rules of Evidence …

Evaluating The Reliability Of Nonscientific Expert Testimony: A Partial Answer To The Questions Left Unresolved By Kumho Tire Co. V. Carmichael, Edward J. Imwinkelried

Maine Law Review

For almost three-quarters of a century, the venerable standard announced in Frye v. United States governed the admissibility of scientific evidence. The Court of Appeals for the District of Columbia handed down the Frye decision in 1923. Under Frye, the proponent of testimony had to demonstrate that the expert's testimony was based on a generally accepted theory or technique. However, in 1993--seventy years after the rendition of the Frye decision--another court sitting in Washington, the United States Supreme Court, overturned the standard. The Court did so in its now celebrated Daubert v. Merrell Dow Pharmaceuticals decision. In the interim between …

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

Faculty Scholarship

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 …

Scientific Evidence And Forensic Science Since Daubert: Maine Decides To Sit Out On The Dance, Thomas L. Bohan

Maine Law Review

In 1993, the Supreme Court of the United States stated that with the federal adoption of statutory rules of evidence in 1975, the common law rule for determining admissibility of scientific testimony was superseded, and that thenceforth admissibility of scientific testimony was to be determined solely by Federal Rule of Evidence 702 (Rule 702). The Frye standard had been adopted in one form or another by most of the federal circuits and by many of the state courts during the 70 years preceding Daubert. Referred to as the “general acceptance” standard, the Frye standard--although adopted in a variety of forms--had …

The Moment Of Truth For Fmri: Will Deception Detection Pass Admissibility Hurdles In Oklahoma?, Julie Elizabeth Myers

Oklahoma Journal of Law and Technology

No abstract provided.

Discovering Forensic Fraud, Jennifer D. Oliva, Valena E. Beety

Northwestern University Law Review

This Essay posits that certain structural dynamics, which dominate criminal proceedings, significantly contribute to the admissibility of faulty forensic science in criminal trials. The authors believe that these dynamics are more insidious than questionable individual prosecutorial or judicial behavior in this context. Not only are judges likely to be former prosecutors, prosecutors are “repeat players” in criminal litigation and, as such, routinely support reduced pretrial protections for defendants. Therefore, we argue that the significant discrepancies between the civil and criminal pretrial discovery and disclosure rules warrant additional scrutiny.

In the criminal system, the near absence of any pretrial discovery means …

Unpacking Frye-Mack: A Critical Analysis Of Minnesota’S Frye-Mack Standard For Admitting Scientific Evidence, Zach Alter

Mitchell Hamline Law Review

No abstract provided.

Innocent Suffering: The Unavailability Of Post-Conviction Relief In Virginia Courts, Kaitlyn Potter

University of Richmond Law Review

This comment examines actual innocence in Virginia: the progress it has made, the problems it still faces, and the possibilities for reform. Part I addresses past reform to the system, spurred by the shocking tales of Thomas Haynesworth and others. Part II identifies three of the most prevalent systemic challenges marring Virginia's justice system: (1) flawed scientific evidence; (2) the premature destruction of evidence; and (3) false confessions and guilty pleas. Part III suggests ways in which Virginia can, and should, address these challenges to ensure that the justice system is actually serving justice.

Billy Joel: The Minstrel Testifies Or How The Rules Of Evidence Handcuff The Piano Man, Hon. Richard A. Dollinger

Touro Law Review

No abstract provided.

"Gatekeeping" Agency Reliance On Scientific And Technical Materials After Daubert: Ensuring Relevance And Reliability In The Administrative Process, Paul S. Miller, Bert W. Rein

Touro Law Review

No abstract provided.

Crossing The Line: Daubert, Dual Roles, And The Admissibility Of Forensic Mental Health Testimony, Sara Gordon

Scholarly Works

Psychiatrists and other mental health professionals often testify as forensic experts in civil commitment and criminal competency proceedings. When an individual clinician assumes both a treatment and a forensic role in the context of a single case, however, that clinician forms a dual relationship with the patient—a practice that creates a conflict of interest and violates professional ethical guidelines. The court, the parties, and the patient are all affected by this conflict and the biased testimony that may result from dual relationships. When providing forensic testimony, the mental health professional’s primary duty is to the court, not to the patient, …

The Increasing Use Of Challenges To Expert Evidence Under Daubert And Rule 702 In Patent Litigation, Douglas G. Smith

Journal of Intellectual Property Law

No abstract provided.

The Trial Judge As Gatekeeper For Scientific Evidence: Will Ohio Rule Of Evidence 102 Frustrate The Ohio Courts' Role Under Daubert V. Merrell Dow?, Michael Lepp, Chrisopher B. Mcneil

Akron Law Review

This article considers the role of the trial court in responding to the changes wrought by scientific innovation. Particular consideration is given to the impact likely to be realized in Ohio trial courts from the decision of the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc.

[...]In order to appreciate the significance of Ohio Evidence Rule 102 in this context, it is helpful to first examine some of the events leading to Daubert, especially the application (and in some instances, the rejection) of Frye both in Ohio and at the federal level. Following that, this article will …

Can Post-Chicago Economics Survive Daubert?, Malcolm B. Coate, Jeffrey H. Fischer

Akron Law Review

In Section II of this Article, we review the Supreme Court’s standard for allowing expert testimony as explained in Daubert and related opinions, and discuss in detail the City of Tuscaloosa and Concord Boat decisions that, following Daubert, excluded the economic expert testimony on which the plaintiffs relied. Section III presents an overview of the Chicago School of Economics, which sets a foundation for our commentary on the Post-Chicago school and serves as a basis for the evaluation of Chicago-based testimony in Section V. Section IV discusses the Post-Chicago School approach to antitrust analysis as a refinement of the Chicago …

Daubert, Probabilities And Possibilities, And The Ohio Solution: A Sensible Approach To Relevance Under Rule 702 In Civil And Criminal Applications, Andrew W. Jurs

Akron Law Review

Probability for expert opinions is the correct standard for civil cases based on the preponderance of the evidence burden of proof. Among other effects, the probability requirement reduces jury speculation, avoids absurdity, appropriately adopts legal relevance as the standard for admission, and avoids negative effects on the out-of-courtroom practices of professionals. Expert opinions explaining possibilities, while inappropriate for civil case consideration, have Rule 702 relevance and are useful in criminal cases based upon the beyond a reasonable doubt burden of proof. Based on an evaluation of federal and state cases, Rule 702, and the purposes of expert testimony, the Ohio …

Is Limited Remand Required If The District Court Admitted Or Excluded Evidence Without A Daubert Analysis?, Robert B. Gilbreath

The Journal of Appellate Practice and Process

No abstract provided.

Evaluating The Evaluation: Reliance Upon Mental Health Assessments In Cases Of Alleged Child Sexual Abuse, Sarah F. Shelton

Nevada Law Journal

No abstract provided.

Cell Phones, Brain Cancer, And Scientific Outliers In Murray V. Motorola, David H. Kaye

Faculty Scholarship

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

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 …

When Truth Cannot Be Presumed: The Regulation Of Drug Promotion Under An Expanding First Amendment, Christopher Robertson

Faculty Scholarship

The Food, Drug, and Cosmetic Act (FDCA) requires that, prior to marketing a drug, the manufacturer must prove that it is safe and effective for the manufacturer’s intended uses, as shown on the proposed label. Nonetheless, physicians may prescribe drugs for other “off-label” uses, and often do so. Still, manufacturers have not been allowed to promote the unproven uses in advertisements or sales pitches.

This regime is now precarious due to an onslaught of scholarly critiques, a series of Supreme Court decisions that enlarge the First Amendment, and a landmark court of appeals decision holding that the First Amendment precludes …