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1. The Case Against Daubert:The New Scientific Evidence “Standard” and the Standards of the Several States

Author

Bohan, TL and Heels, EJ

Abstract

In June of 1993, the U.S. Supreme Court, in Daubert v. Merrell Dow Pharmaceuticals, Inc., rejected the Frye“general acceptance” rule under which evidence proffered as scientific had long been evaluated for admissibility by Federal Courts and most state courts. In the body of the following paper, we argue that Daubertwas a disastrous decision and one reflecting a general lack of understanding of the scientific/technical enterprise. We argue that, far from achieving the goal of excluding bogus expert testimony, Daubertinvites it. We also argue that the bad result that is Daubertarose from addressing a non-question: whether the Federal Rules of Evidence superseded Frye. In the section on The Scientific Evidence Standards in the States in the Wake of Daubertto the paper we provide an annotated listing of the scientific evidence standards governing the courts of the 50 states one year after Daubertissued, by which time many state high courts had had an opportunity to enunciate their respective states' approach to scientific evidence with the guidance of Daubert. That summary indicates as of that time which state courts were governed by Fryeand which ones by Daubert. It also shows that many state high courts show a confusion that is traceable to the phrasing of Daubert. More happily, this summary also shows that a number of state high courts have a very good grasp of scientific evidence and have enunciated readily-applied rules by which their trial courts are to evaluate it. It is to be fervently desired that these state decisions or the thought processes producing them lead to widespread judicial rules for evaluating would-be scientific evidence, rules which will readily exclude “junk science” from the courtroom while not raising unreasonable barriers to valid expert testimony.

Published
1995
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2. Forensic bitemark identification: weak foundations, exaggerated claims.

Author

Saks MJ, Albright T, Bohan TL, Bierer BE, Bowers CM, Bush MA, Bush PJ, Casadevall A, Cole SA, Denton MB, Diamond SS, Dioso-Villa R, Epstein J, Faigman D, Faigman L, Fienberg SE, Garrett BL, Giannelli PC, Greely HT, Imwinkelried E, Jamieson A, Kafadar K, Kassirer JP, Koehler J', Korn D, Mnookin J, Morrison AB, Murphy E, Peerwani N, Peterson JL, Risinger DM, Sensabaugh GF, Spiegelman C, Stern H, Thompson WC, Wayman JL, Zabell S, and Zumwalt RE

Abstract

Several forensic sciences, especially of the pattern-matching kind, are increasingly seen to lack the scientific foundation needed to justify continuing admission as trial evidence. Indeed, several have been abolished in the recent past. A likely next candidate for elimination is bitemark identification. A number of DNA exonerations have occurred in recent years for individuals convicted based on erroneous bitemark identifications. Intense scientific and legal scrutiny has resulted. An important National Academies review found little scientific support for the field. The Texas Forensic Science Commission recently recommended a moratorium on the admission of bitemark expert testimony. The California Supreme Court has a case before it that could start a national dismantling of forensic odontology. This article describes the (legal) basis for the rise of bitemark identification and the (scientific) basis for its impending fall. The article explains the general logic of forensic identification, the claims of bitemark identification, and reviews relevant empirical research on bitemark identification-highlighting both the lack of research and the lack of support provided by what research does exist. The rise and possible fall of bitemark identification evidence has broader implications-highlighting the weak scientific culture of forensic science and the law's difficulty in evaluating and responding to unreliable and unscientific evidence.

Published
2016
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3. Flawed logic.

Author

Gabaeff S, Bohan TL, Miller M, Gardner H, Rothfeder RK, Scheller J, and Posey DM

Subjects
Child Abuse legislation & jurisprudence, Child Abuse statistics & numerical data, Child, Preschool, Cross-Sectional Studies, Diagnosis, Differential, Head Injuries, Closed epidemiology, Head Injuries, Closed etiology, Humans, Infant, Infant, Newborn, Mandatory Reporting, Shaken Baby Syndrome epidemiology, United States, Accidental Falls statistics & numerical data, Head Injuries, Closed diagnosis, Shaken Baby Syndrome diagnosis
Published
2010

5. Ten years after Daubert: the status of the states.

Author

Keierleber JA and Bohan TL

Subjects
Government Regulation, Humans, United States, Expert Testimony legislation & jurisprudence, Forensic Sciences legislation & jurisprudence, Science legislation & jurisprudence, State Government, Supreme Court Decisions
Abstract

This paper examines how many of the states have changed their respective scientific-evidence admissibility standards under the influence of the United States Supreme Court's 1993 Daubert decision. The authors offer a definition of what constitutes a Daubert state, and using this definition classify the fifty states into three categories. These are: Frye states (15 states, 10 with codified evidence rules patterned after the Federal Rules of Evidence (FRE)); Daubert states (26 states, 24 with FRE-based rules), and non-Frye/non-Daubert states (9 states, 7 with FRE-based rules). The authors discuss how the reliability requirement varies among the non-Frye states, and examine how particular types of evidence have fared in the Daubert era. Finally, the authors offer some predictions for the scientific evidence trends of the states.

Published
2005

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