One of the key functions of judges is to act as gate-keepers in deciding upon the admissibility of expert evidence. In the United States, the U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993) (the “Daubert standard”) held that Rule 702 of the Federal Rules of Evidence did not incorporate the “general acceptance” test established in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), as a basis for assessing the admissibility of scientific expert testimony. In R. v. Mohan  2 S.C.R. 9 (S.C.C.), the Supreme Court of Canada set out a four-factor test to determine admissibility of expert evidence: (1) relevance; 2) necessity in assisting the trier of fact; (3) the absence of any exclusionary rule; and (4) a properly qualified expert.
In a new article, D. Michael Risinger (Seton Hall University School of Law), “The NAS Report on Forensic Science: A Glass Nine-Tenths Full (This is About the Other Tenth)” provides an incisive critique and advocates the use of masking and sequential unmasking protocols in forensic science practice. Here is the abstract:
The NAS Committee Report, STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES, issued in February of 2009, was a milestone in the decades-long struggle to get those who control the production and utilization of forensic science expertise to admit the various weaknesses of some of the techniques involved, and to take steps to strengthen the reliability of those techniques and their products. The NAS Committee Report is in some ways the culmination of those efforts, and has made it now untenable to dismiss criticisms as simply the cavils of uninformed academics with nothing better to do.
In this sense the report is a glass nine-tenths full, and is to be celebrated as such. But then there is the other tenth, the tenth that may, as an unintended consequence, delay needed reform significantly and unnecessarily. The most significant part of this unwise tenth is the decision not to push strongly for the immediate adoption of masking and sequential unmasking protocols in forensic science practice, but instead to call for “more research” on the issue in advance of moving forward.
This paper explains in detail why the “await more research” approach is misguided.
Todd L. Archibald and Heather L. Davies, “Law, Science and Advocacy: Moving Towards a Better Understanding of Expert Scientific Evidence in the Courtroom”, in Annual Review of Civil Litigation, 2006, Justices Archibald and Echlin (Eds.) (Toronto, Canada: Thomson-Carswell, 2007), at pp. 1-31.
David E. Bernstein, “Expert Witnesses, Adversarial Bias, and the (Partial) Failure of the Daubert Revolution” (February 2007). Iowa Law Review, Forthcoming; George Mason Law & Economics Research Paper No. 07-11. Available at SSRN: http://ssrn.com/abstract=963461.
Antonin I. Pribetic