Posted by David Bernstein:
The Unfinished Daubert Revolution:
http://volokh.com/archives/archive_2009_03_08-2009_03_14.shtml#1236635165
That's the title of my article, recently published in Engage. [1]It
can be downloaded here.
Here's the abstract:
The American judiciary traditionally had a laissez-faire approach
toward the admissibility of most categories of expert testimony.
This approach ended in federal courts when the U.S. Supreme Court
adopted a reliability test for the admissibility of expert
testimony in a series of three decisions: Daubert v. Merrell Dow
Pharmaceuticals, Inc., General Electric Co. v. Joiner, and Kumho
Tire Co., Ltd., v. Carmichael. An amendment to Federal Rule of
Evidence 702 in 2000 then codified a stringent interpretation of
the "Daubert trilogy." Many states also have adopted some version
of the Daubert reliability test.
Contrary to many early predictions, the consequences of Daubert v.
Merrell Dow Pharmaceuticals and its progeny have been quite
positive. Contrary to pre-Daubert practice, all expert testimony is
now scrutinized for reliability before admitted into court. The
result has been a significant decline in the presentation of
"quackspertise" in the courts.
Nevertheless, Daubert has several significant limitations.
First, many state courts have declined to adopt it, and have
instead retained more liberal rules of admissibility, some of which
amount to a "let-it-all-in" philosophy.
Second, some federal judges simply refuse to acknowledge the sea
change that has occurred in the law of expert testimony, and
continue to rely on older, more inclusionary precedents.
Third, Daubert has been ineffective in limiting the use of junk
science by prosecutors in criminal cases. Finally, Daubert is a
poor match for certain kinds of expert testimony. Specifically,
Rule 702 and the Daubert trilogy are ill-equipped to deal with
"connoisseur" testimony that arises from a legitimate field of
expertise, but whose reliability is ultimately dependent on the
personal credibility of the testifying expert.
This paper addresses each of these limitations in turn, and
suggests that the relevant problems demand resolution before the
Daubert revolution can be deemed complete.
References
1. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1354733
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