|
Friday Schedule
Program
Annual
Meeting
Home
|
|
Friday, January 3, 2003
|
2:00-5:00 p.m.
Section on Evidence
Christopher B. Mueller, University of Colorado, Chair |
Delaware Suite B
Marriott Wardman Park Hotel
Lobby Level | |
Science After Kumho Tire-When Is Science Really Science?
Moderator:
Christopher B. Mueller, University of Colorado
Speakers: - Paul C. Giannelli, Case Western Reserve University
- Carol Henderson, Nova Southeastern University
- Michael Risinger, Seton Hall University
- Christopher Slobogin, University of Florida
- James E. Starrs, The George Washington University
Most observers thought that the decision in Daubert was a step in the right direction, and few mourned the passing of Frye, although something close to Frye remains law in more than a dozen states. The Court's next foray added little: No, the court seemed to say in Joiner, Daubert does not mean scientific evidence is presumptively admissible (few of us thought Daubert meant that). Then came the big opinion in Kumho Tire: Daubert applies to all expert testimony, not just "hard sciences" or another subset of the universe of technical expertise. And by the way, Daubert is about "discretion" (a word used exactly once in Daubert and seven times by the majority in Kumho Tire). And then came the amendment to FRE 702, adopted just last year, "in response to" Daubert rather than in any effort to "codify" Daubert.
Daubert, Kumho Tire and the amendment to FRE 702 could easily form the basis for a seminar in lawmaking: Is anyone really convinced that lurking in the term "scientific" in FRE 702 was a multi-part validity standard that somehow went unnoticed for 20 years? Is anyone really convinced that Daubert was an opinion about all expertise, rather than specifically "scientific" expertise? (Maybe these are quibbles: If you think Frye was broke, then someone needed to fix it. If not the Court, who? And if it takes more than one opinion to map out a new direction, what else is new?) And if amended FRE 702 doesn't "codify" Daubert, what exactly does it add that is not in Daubert, and what does it do that is different from Daubert?
The focus of this program is not jurisprudential issues, but the meaning of Daubert/Kimho and amended FRE 702 in determining the admissibility of scientific evidence. We know that judges are to assess reliability on a case-specific basis; they have discretion not only in applying suitable criteria, but in choosing from a smorgasbord of criteria; the central question is reliability, not correctness; sometimes general acceptance in the pertinent scientific community is enough, what counts under amended FRE 702 is essentially everything-sufficiency of underlying "facts or data," reliability of "principles and methods," and reliable application of principles and methods.
That said, what does Daubert mean now on such matters as handwriting analysis, fingerprints, "syndrome evidence"? Was Judge Pollak right the first time in the Plaza case, or the second time? Does Daubert, as interpreted in Kumho Tire, really mean that trial judges have the same kind of broad discretion on such questions as they have in applying FRE 403? Or are reviewing courts taking a more intrusive role than they're letting on? Are there some types of expertise that courts exempt from a Daubert analysis? Should there be? How does the amendment to FRE 702 affect these questions?
Business Meeting at Program Conclusion
|
|