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TESTIMONY: Striking the Right Balance in Admissibility Standards

By Edward Imwinkelried though in the past science seemed to lay claim to infallibility, n"inJurassic Park,novelist that bealshattered century Michael that claimCrichton has beenargued the twentieth

yond repair," He pointed to such developments as the discovery of Heisenberg's uncertainty principle about erratic phenomena "in the subatomic world" and the formulation of Godel's theorem, which "set similar limits to mathematics." Until recently, that claim was implicitly recognized by many courts, which naively accepted the popular conception that at least the hard sciences could yield true certainty. (Bert Black, The Supreme Court's View of Science: Has Daubert Emoised the Certainty Demon? 15 CARDOzO L. REv. 2129 (1994).) However, just as Heisenberg and Godel helped destroy the myth of scientific infallibility outside the courtroom, recent developments have had that effect in the courtroom. In Daubertv. MerrellDow Pharmaceuticals, Inc., 509 U.S. 579, 590 (1993), Justice Blackmun frankly acknowledged that "arguably, there are no certaintiesin science." Today thejudicial system realizes not only that scientific testimony can be flawed, but even more alarmingly that there is a widespread awareness that in a significant number of cases such testimony has contributed to wrongful convictions. (Paud C. Gianneui

2002).) The large number of mistaken eyewitness reports in the recent Washington, D.C.-area sniper investigation is further proof that lay witness identification is frequently untrustworthy. (Sharon Begley, Eyewitnesses to CrimeAre Often Blinded by

However, it would be a mistake to leap to the conclusion that these revelations should prompt the wholesale exclusion of forensic testimony. Singling out expert testimony for that treatment might well prove to be counterproductive. To the extent that we discriminate against expert testimony, we force the courts to rely on alternative types of evidence, notably lay testimony such as eyewitness identifications. (Foreword,CoNWMCD BY Jump,

Shock, Adrenaline. WALL ST. J., Oct. 25, 2002, at B I).) Reflexively toughening the standards for introducing expert testimony could compel the courts to depend even more on lay testimony. In that light, the challenge in reforming the anissibility standards for expert testimony is to strike the right balance-framing standards that improve the caliber of the expert testimony admitted without raising the bar so high that by default the courts will have to rely even more heavily on suspect eyewitness evidence. The purpose of this short article is not to chronicle every instance in which erroneous expert testimony has contributed to a wrongful conviction. Rather, this article undertakes to give the reader a general sense of the magnitude of the problem of flawed expert testimony and then to compare that to the size of the problem caused by erroneous lay testimony. That comparison points to the real challenge that the revelations of flaws in expert testimony pose for the judicial system. Any fair comparison of lay and expert testimony will lead to the conclusion that both types of evidence are imperfect. Although our prior naive faith in science makes the recent revelations of flawed expert testimony particularly shocking, the shock effect should not blind us to the weaknesses of lay evidence. The thesis of this article is that it will do more harm than good to react to the revelations by excluding expert testimony in a sweeping fashion. Our response must be more measured, designed to identify, reforms that will enhance the reliability of the expert evidence that is admitted to supplement lay testimony at trial.

EXONERATED BY SCIENCE: CASE STUDIES IN TE USE OF DNA EvtDENcE To ESTABLISi INNOCENCE ATER TRL xiii-xiv (1996).) To

Terms of comparison

date, the various innocence projects have documented more than 300 cases of wrongful conviction in the United States. Nearly two-thirds have involved mistaken identification testimony by lay witnesses. (The Innocence Project,5 RES IPSA 2 (Spring

Flawed expert testimony. What is the magnitude of the problem of flawed expert testimony? For several decades there has been mounting evidence of a substantial margin of error in expert analysis. Numerous proficiency studies of laboratories

Edward hlninkelried is a law professorat the University of

have documented that expert analysis is far from infallible. (Hansen, Caudill & Boone, Crisisin Drug Testing: Results qf

& Emmie West, ForensicScience: HairComparison Evidence, 37 CRiM. L. BULL. 514 (Sept.-Oct. 2001).)

Cal(fornia-Davisand visitingprofessorat University College

Dublin.

Illustration: Kay Salem

CDC Blind Study, 253 J. AM. MEo. Ass'N 2382 (1985) (a Cen-

ters for Disease Control test of the proficiency of laboratories engaged in immunoassay drug testing); J. Peterson, E. Fabricant & K. Field, "Crime Laboratory Proficiency Testing Research Program" (1978) (a study involving 21 tests and 240 laboratories); Paul C. Giannelli, The Admissibility of LaboratoryReports in CriminalTrials:The Reliability of Scientific Proof,49 01so ST. LJ. 671, 675-92 (1988) (discussing the Laboratory Proficiency Testing Program conducted by the Law Enforcement Assistance Administration); D. Michael Risinger, Mark P. Denbeaux & Michael J. Saks, Exorcism of Ignoranceas aProyforRational Knowledge: The Lessons ofHandwritingIdentification "Expertise," 137 U. PA. L. Rv. 731, 743-51 (1989) (proficiency tests of questioned document examiners, conducted by the Forensic Science Foundation); Grieve, Possessionof Truth, 46 J. FOENsic mENT. 521 (1996) (a proficiency test of fingerprint examiners).) Worse still, there is now solid evidence that erroneous expert testimony is causing a significant number of erroneous convictions. At one time, we might have been able to kid ourselves into thinking that although forensic experts sometimes erred, any errors would be unmasked at trial, and the errors therefore could not cause miscarriages ofjustice. The forensic analyst aight err in the laboratory, but we believed that in the courtroom an astute cross-examiner would expose the error. However, we can no longer entertain that belief in good conscience. That belief was shattered by the U.S. Department of Justice's celebrated 1996 report, Convicted by Juries, Exonerated by Science. The report reviewed 28 cases of wrongful conviction. In several of those cases, flawed expert testimony, in particular hair evidence, had contributed to the conviction. Although later DNA testing established their innocence, at trial defendants such as Edward Honaker, Roger Coleman, Ron Williamson, Steven Linscott, David Vasquez, and Dennis Williams all were convicted, and all were found guilty by juries that had heard supposedly inculpatory expert hair testimony. (Giannelli & West, supra at 514-18.) If expert errors were confined to the laboratory, they would be of concern solely to the scientific community. However, today it is undeniable that erroneous expert testimony is sometimes offered at trial-and that on at least some occasions, the error is not exposed. Mistaken lay eyewitness testimony. The question naturally arises: If errors in expert testimony are causing miscarriages of justice, should the courts respond by barring the testimony or at least making it markedly more difficult to introduce expert testimony? No. That simplistic "cure" would be worse than the disease. Although some expert testimony is flawed and, on occasion, such testimony contributes to wrongful convictions, the problem of erroneous expert testimony is smaller than and more tractable than the problem of mistaken eyewitness testimony by laypersons. To get a sense of relative magnitudes of the problems, consider the set of cases reviewed in the DOJ's Convicted by Juries, Exonerated by Science. The study found seven of the 28

cases of wrongful conviction featured flawed expert hair testimony. (Id. at 16-17.) In contrast, most of the remaining cases involved eyewitness identifications by victims, percipient witnesses, or both. (id.) More broadly, as previously stated, one estimate is that mistaken eyewitness testimony factored in approximately two-thirds of the wrongful conviction cases identified to date by the various innocence projects in the United States. (The Innocence Project,supra.)In the experience of the Center for Wrongful Convictions at Northwestern University, faulty eyewitness identifications are "by far the most ubiquitous factor:' (Steve Chapman, Your Lyin 'Eyes: What to DoAbout Eyewitnesses Who Get It Wrong, May 14,2002, availableat http://slate.msn.com/id/2065761/.) Similarly, most of the wrongful convictions identified by the Innocence Project at the Benjamin Cardozo School of Law have "hinged on faulty eyewitness testimony." (BARRY ScBHEcK, Pm NEUFEwL & Jim DwyrER, AcruAL INNocENcc (2000).) If this set of cases is at all representative of the universe, mistaken lay testimony is a much more common cause of wrongful conviction. Although some types of expert testimony have significant error margins, for the most part the reported error margins are relatively small. "The point is not that most laboratory test results are erroneous.... Indeed, the opposite is true." (Giannelli, The Admissibility of LaboratoryReports in Criminal Dials, supra, at 692.) For instance, on most of the 21 sets of samples involved in the Laboratory Proficiency Testing Program, the vast majority of laboratories reached correct, complete findings. (Id. at 689 n.155.) For many sets, the accuracy rate was well over 90 percent. (id.(test samples 1, 3, 4,6, 7, 12, 13(A), 13(B), and 20(A)).) Contrast the error rates reported by many of the eyewitness testimony researchers. There are tens of studies finding an alarmingly high level of error in eyewitness identifications.In one classic experiment, fewer than 15 percent of the lay witnesses to a simulated crime correctly identified the perpetrator. (Robert Buckout & Mark Greenwald, Witness Psychology,in Sci. AND EXPERT EViDENCE 1291 (2d ed. 1981).) Consider, for example, the current controversy over the admissibility of questioned document examination testimony. That controversy is a microcosm of the broader dispute over the standards for admitting nonscientific forensic testimony. The critics of questioned document testimony have presented a persuasive, even compelling, case that it does not qualify as science. (D. Michael Risinger, Mark Denbeaux & Michael Saks, Brave New "Post-DaubertWorld"--A Reply to ProfessorMoenssens, 29 SETON HALL L. REv. 405 (1998); D. Michael Risinger & Michael Saks, Science andNonscience in the Courts:Daubert Meets HandwritingIdenfification Expertise, 82 IowA L. Rv. 21 (1996).) As they have quite properly pointed out, many of the discipline's basic premises have never been validated by controlled scientific experimentation and induction. (D. Michael Risinger, Mark Denbeaux & Michael Saks, Exorcism ofIgnoranceas a ProxyforRationalKnowledge: The Lessons of Handwriting Identification "Expertise," 137 U. PA. L. REV. 731

CRIMINAL JUSTICE a Spring 2003

(1989).) Should questioned document examiners be permitted to testify as "scientists"? On the current state of the record, the answer must be "no." (United States v.Starzezpyzel, 880 E Supp. 1027 (S.D.N.Y 1995).) However, the harder question is whether they ought to be permitted to testify at all. Should they be allowed to appear as nonscientific experts, perhaps with a cautionary instruction telling the jury that in evaluating the weight of their testimony, the jurors should consider that the witness is not a full-fledged scientist? The critics are correct in not only pointing to the dearth of validating research, but also in faulting the discipline for failing to conduct the research. The research is feasible, and there is no good justification for the discipline's neglect to critically examine its own basic premises. However, there is hard evidence that although their techniques are not as reliable as the courts previously assumed them to be, experienced questioned document examiners can perform identification tasks far more reliably than layperjEyew sons-such as the persons who sit as jurors. Professor Inbau's classic study, "Lay Witness Identificaion of Handwriting," 34 Illinois Law Review 433 (1939), demonstrated the unreliability of lay testimony on this subject More recently, Dr.

ers)) Admittedly, Dr. Kam's research falls far short of establishing the scientific status of questioned document examination. However, the results of these experiments furnish convincing evidence that professional examiners can make the authorshipdetermination far more accurately than laypersons. From a systemic perspective, it would be a step backward to bar forensic expertise and force the courts to rely on lay determinations of authorship. It is not just that lay testimony seems at least as prone to error as expert evidence. To make matters worse, the causes of mistaken eyewitness identification are much less tractable than the causes of erroneous expert analysis. Inherent deficiencies in the human processes of perception and memory are the leading causes of flawed eyewitness testimony. (Felice J. Levine & June Louin Tapp, The Psychology of CriminalIdentification:The Gapfrvm Wade to Kirby, 121 U. PA. L.RLv. 1079, 1095-1103 (1973).) Sadly, "very little can be done to improve" those processes. (Id.at 1130.) To be sure, we can "tinker" a bit with eyewitness testimony.

itne,3ses often

a court can mandate For lineups be conducted sequenthat example, tially. (In re Thomas, 733 N.Y.S.2d r from 591 (S. Ct. 2001) or in a doubleblind manner. (In re Wilson, 741 Ct. 2002).) In adN.Y.S.2d 831 (S. dition, a court may admit expert E psychological testimony to help the Moshe Kam and his colleagues jurors appreciate the extent and have conducted a series of studies causes of mistaken eyewitness examining the question of whether identifications. (United States v. Mathis,264 E3d 321 (3d Cit. experienced examiners can determine authorship more reliably 2001), cert. denied, 152L. Ed. 2d 148, 122 S. Ct. 1211 (2002).) than laypersons. (Moshe Kam, K. Gummadidala, G. Fielding & To a degree, those procedures can reduce the impact of deficient R. Conn, SignatureAuthentication by ForensicDocument Examperception and memory, but they cannot eliminate the root causes iners,46 J FORENSiC Sci. 884 (2001); Moshe Kam, G. Fielding of mistaken eyewitness testimony. Little can be done to control & R. Conw, Effects of MonetaryIncentives on Perfornanceby the fortuitous events such as crimes that laypersons unexpectedly Non-professionalsin Document ExaminationProficiency Tests, witness. There is no time machine to enable the witness to travel 43 J. FoRENsic Sci. 1000 (1998); Moshe Kam et al., WriterIdenback in history and observe the event more carefully a second tification by ProfessionalDocument Examiners,42 J. FORENSIC time. Sc. 778 (1997); Moshe Kam, J. Welstein & R. Cont, Proficiency The laboratory is a far more controllable envirorment. Laboof QuestionedDocument Examiners in WritersIdentification,39 ratories have tools such as scanning electron microscopes, which J. FoRENsic Sci. 5 (1994).) In their 1997 study, the researchers can magnify in excess of 200,000 times, for enhancing the powfound that the percentage of matching errors by laypersons-ers of perception. Similarly, laboratories can employ photograph38.6 percent--dwarfed the percentage of errors by questioned ic techniques to record events and remove concerns about the document (QD) examiners--6.5 percent. (Kam et al., supra,at quality of memory. Experiments and tests can be planned in ad779.) In the most recent study released in 2001, the researchers vance to allow time for meticulous observation and recordation. reported that "the error rates exhibited by the FDEs (forensic The bottom line is that it is misleading to focus solely on the document examiners) were much smaller than those of the weaknesses of expert testimony. The judgment must be comparalaypersons." (Kam, Gummadidala, Fielding & Conn, supra, at tive. To the extent that we discriminate against expert testimony, 884.) "Laypersons wrongly classified nongenuine signatures as subjecting it to uniquely restrictive rles, we pressure the courts 'genuine' 13 times more often than the FDEs " (Id. at 884-85.) to depend more heavily on other types of evidence. in all likeliAustralian research, published in 2002, largely confirms Dr. hood, a wholesale tightening of the standards for admitting exKam's findings. (J. Sita, B. Found & D.K. Rogers, Forensic pert testimony will result in greater judicial reliance on lay testiHandwritingExaminers'Expertisefor SignatureComparison,47 mony. The massive evidence of the myriad weaknesses in lay tesJ. Foi ussic Sci., 1117, 1121 (2002) (the laypersons committed timony should give us pause. six tunes as many errors as the questioned document examin-

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deficient ; ierception . and m s m ory

CRIMINAL JUSTICE a SPring 2003

31

Blunderbuss restrictions on expert testimony If we consider the reform of admissibility standards for expert testimony, we should reject appeals for new blunderbuss restrictions on expert testimony. Outright bans on certain types of expert testimony. in some cases, legislatures have intervened to ban particular types of expert testimony such as polygraphy. (E.g., CA. EvID. CoDE § 35 1. 1.) Convicted by Juries,Exoneratedby Science identified seven cases in which expert hair testimony contributed to a wrongful conviction. Should we ban all testimony about microscopic hair analyses? In another seven cases, non-DNA blood testimony was a contributing factor. Should we exclude all genetic marker analyses other than DNA evidence? These bans would certainly be ill conceived. Even in the currentstate of these forensic disciplines, their findings appear more trustworthy than many eyewitness identifications. Further, research is ongoing in these disciplines. Even if a ban were justified based on the cunent state of these disciplines, the disciplines are constantly evolving; and research could easily overtake the ban in a matter of years or months. As the National Research Council's Committee on DNA Technology in Forensic Science cautioned, it is a chancy proposition to "lock in" or freeze admissibility standards for specific types of expert testimony. (Comm. DNA Technology in Forensic Science, Nat'l Research Council, DNA Technology in Forensic Science § 2-18 (1992).) As then-Judge Ming Chin observed, the "scientific landscape" is constantly changing. (People v. Bamey, 10 Cal. Rptr. 2d 731,744 (Ct. App. 1992).)An outright ban is warranted only in the most extreme cases. A requirement for validation by controlled scientific experimentation. Short of outright bans on particular types of expert testimony, should the courts take the position that the only way to validate expert testimony is by extensive, controlled scientific experimentation? If the courts were to rigorously apply that view, many types of expert testimony, such as questioned document examination and hair analysis, would not only not qualify as scientific testimony, they would be altogether excluded from testimony. (Randolph Jonakait, The Meaning ofDaubert and What That Meansfor Forensic Science, 15 CARDOZO L. Rvv. 2103 (1994).) There are passages in Daubertthat lend themselves to that reading. For example, at the very beginning of the list of factors he thought trial judges should consider in evaluating the reliability of proffered scientific testimony, Justice Blacktmun stated that a "key question" is "whether [the theory or technique] can be (and has been) tested" (Daubert v. Merrell Dow Pharmaceuticals,Inc., 509 U.S. 579,593 (1993).) Justice Blackmun also approvingly quoted Popper's declaration that the "criterion of the scientific status of a theory is its falsifiabiity or refutability, or testability." (Id.) However, in other passages, the Court pointed to a broader test. Justice Blackmun wrote that "[t]he inquiry envisioned by [Federall Rule [of Evidence] 702 is, we emphasize, a flexible one." (Id. at 590.) Ultimately, the Justice explicitly demanded

"appropriate validation" (id.), not controlled scientific experimentation and induction. Kumho,the Court's 1999 opinion, undercuts any contention that empirical testing and induction are the mandatory means of validating all expert theories and techniques. On its ftce, Rule 702 refers in the alternative to "scientific, technical or other specialized knowledge' In his lead opinion, Justice Breyer appeared to concur with the solicitor general's contention that: "tTihere are many different kinds of experts, and many different kinds of expertise. See Brief for United States as Amicus Curiae 18-19 and n.5 (citing cases involving experts in drug terms, handwriting analysis, criminal modus operandi,. . . and others)'" (Kuinho Tire Co., Ltd v. Carmichael,526 U.S. 137, 141 (1999).) Rule 702 was amended effective December 1, 2000. The new advisory committee note expressly states that "[sJome types of expert testimony will not rely on anything like a scientific method._" This expansive view of "appropriate validation" leaves open the possibility of admitting fingerprint testimony as nonscientific expertise even if, in the current state of the research record, fingerprint analysis cannot qualify as full-fledged science. The critics of fingerprint evidence have argued that as in the case of questioned document examination, fingerprinting's essential premises have not been subjected to rigorous, scientific scrutiny. (Robert Epstein, FingerprintsMeet Daubert: The Myth of Fingerprint "Science" Is Revealed, 75 So. CAL. L. REY. 605 (2002); Jennifer Mnookin, FingerprintEvidence in anAge ofDNA Profiling,67 BROOKLYN L.REv. 13 (2001).) However, the question is whether fingerprint analyses by FBI examiners are more likely to be reliable than the lay evidence that the trier of fact would otherwise have to rely on. (United States v.LeraPlaza, 188 E Supp. 2d 549, 572 (ED. Pa. 2002).) If we are interested in the reliability of judicial fact finding, the prospect of denying the jury fingerprint testimony and forcing it to depend on eyewitness testimony is not a comforting one. Like outright legislative bans on various types of expert testimony, an invariable requirement for validation by controlled scientific experimentation would probably do more harm than good.

Reforms improve quality of expert testimony Rather than resorting to a blunderbuss approach to the problem of flawed expert testimony, we should seek reforms that mprove the caliber of expert testimony without making the courts unduly dependent on eyewitness testimony. Two reforts are illustrative. The abolition of the exemptions from judicial scrutiny. One is the abolition of the complete exemption from judicial scrutiny that certain types of expert testimony currently enjoy in various jurisdictions. For the most part, these exemptions exist in states still adhering to the traditional general acceptance test for the admissibility of scientific testimony In Frye v. United States, 293 F 1013 (D.C. Cir. 1923), the court enunciated the general acceptance standard. Freinvolved a novel "instrumental" scientific

CRIMINAL JUSTICE n Spring 2003

technique, nanely, the measurement of systolic blood pressure in order to detect conscious attempts at deception. Note the implication: If the scope of the test is strictly confined to hard science techniques, then neither soft science nor nonscientific expertise is subject to scrutiny. Ina large number of F ye jurisdictions, the courts have embraced that implication and formally exempted either soft science such as psychology or nonscientific expertise. For instance, many Ftye courts have ruled that the test is inapplicable to noninstrumental or "software" scientific techniques such as psychological analysis. In People v. McDonald, 690 P2d 709 (Cal. 1984), the California Supreme Court held that the test does not apply to psychological testimony about the unreliability of eyewitness identification. The court suggested that the test controls only "when the evidence is pnoluced by a macline' (Id. at 724.) More recently, in People v Wilson, 86 Cal. Rptr. 2d 204 (App. 1999), an intermediate California court refused to extend the test to psychiatric testimony that a defendant displays signs of deviance. In State v. Trager,974 P.2d 750 (Or.App. 1999), the Oregon Court of Appeals concluded that the test was inapplicable to a physician's opinion diagnosing two young girls as having been sexually abused. Trager, Wilson, and Kelly are not

isolated cases. One commentator asserts that this limitation is the ma-

jonty view among Fyedjurisic-

Sloppy

perience." (Id. at 579-80.) In other jurisdictions, while the courts have not carved out a formal exemption from scrutiny for nonscientific expertise, they have accorded "technical" evi-

a Spring 2003

States are conducted in Fryejurisdictions (EvidentiaryBalance,

tests are

NAT'L LJ.,

May 13, 2002, at

B 11); and, as we have seen, this loophole looms large in many such states. In those states, in passing on the admissibility of the expert testimony, the judge may determine whether the witness qualifies as an expert and whether the subject matter is beyond the ken of tie typical lay juror. However, there will be no meaningful inquiry into either the general acceptance or the reliability of the expert's underlying theory. A foundational requirement for a showing of sound test procedure. A second useful reform would be mandating that the proponent of scientific testimony demonstrate that on the occasion in question, the expert followed sound procedurein conducting the test. Sloppy test procedure is the Achilles' heel of many types of expert evidence. Modernly, we have powerful technologies such as DNA typing, but the analysts who use these technologies are fallible human beings who are sometimes overworked and under-trained. Many of the published proficiency tests identify sloppy test procedure as a leading cause of erroneous findings. (J. Peterson, F. Fabricant & K. Field, supra, at 203-06,223, 230,239,258; The Debate in the DNA Cases Over the Foundationfor the Admission of Scientific Evidence: The Importanceof Human Erroras a Cause of ForensicMisanalysis,69 WAsH. U. L.Q. 19,32 (1991).) In one sense, proof of proper test procedure is one of the most fundamental guarantees of the reliability of expert testimony. When the original validating studies are conducted, researchers control for certain variables. We can have confidence in the researchers' findings only under those

the Ac h iI les' heels of expert evidenc!J

tions. (Roger S. Hanson, James Alphonzo Fye Is Sixty-Five Years Old; Should He Retire? 16 W. ST. U. L. Rev. 357,414 n.192 (1989).) Further, a number of F'ye states have limited the reach of the general acceptance test to purportedly scientific theories and techniques; if the proponent simply labels the testimony nonscientific, that expedient obviates the necessity for the proponent to establish that the expert's theory or technique is generally accepted in the pertinent field. In the past, many jurisdictions have taken an essentially laissezfaire attitude toward nonscientific expertise. (John Strong, Language awl Logic in Expert Testimony: Limiting Expert Testimony by RestrictionsofFunction,Reiability and Form, 71 OR. L. REv. 349, 361 (1992).) Florida is a case in point. On the one hand, unlike most Frye states, Florida does not broadly exempt soft science from Frye scrutiny. (Haddeni.State, 690 So. 2d 573 (Fla. 1997) (child sexual abuse accommodation syndrome); Flanaganv. State, 625 So. 2d 827 (Fla.1993) (sex offender profile).) On the other hand, Florida has balked at broadening the scope of the test to extend to nonscientific evidence. In Hadden, the Florida Supreme Court wrote that the general acceptance test "is not applicable to an expert's pure opinion testimony which is based solely on the expert's training and ex-

CRIMINAL JUSTICE

dence such as fiber and hair analysis a presumption of reliability. (State v.Fukusaku, 946 P.2d 32, 43 (Haw. 1997).) As previously stated, in the main it would be unwise to adopt legislative bans on such species of expert testimony as hair analysis and non-DNA blood evidence. However, it is equally unwise to sweepingly exempt nonscientific evidence from alljudicial scrutiny. That loophole should be closed. The reliability of lay eyewitness testimony might be questionable, but it is hardly an antidote to admit nonscientific expert evidence as a matter of course without an), inquiry into its reliability. These exemptions from scrutiny affect a large number of trials. It is true that in Kumho the Supreme Court extended the requirement for a showing of reliability to all types of expertise in federal practice. It is also true that the Daubert-Kumhaapproach has spread to many states with the result that Frye is already a minority view in the United States. (1 PAUL GtaNat et al., SQ. EviDCEac § 1-15 (3d ed. 1999).) However, the remaining Frye jurisdictions include some of the largest and most litigious states such as California, Florida, Illinois, New York, Pennsylvania, and Washington. The majority of state criminal trials in the United

conditions, If at the time of the later forensic test the analyst does federal practice, but the problem still persists in many states, alnot control for the same variables, the supposedly validating remost none of which have amended their version of Rule 702 to search furnishes no assuranceof the reliability of the test. It insert the same language. makes no sense to insist upon a validation of the expert's technique while ignoring the question of whether the analyst folConclusion lowed conect test procedure in the sense of duplicating the condiIn the past, all too many jurisdictions took a lax approach to tions that obtained during the earlier validating research. the admission of expert testimony. Several jurisdictions exempted The traditional, common-law view was that a showing of the underlying premises of nonscientific expertise from judicial proper test procedure was a required element of the foundation scruty. In addition, there was some authority that the foundation for introducing scientific testimony. (State v Schwartz, 447 for the introduction of expert testimony did not require even a N.W.2d 422 (Minn. 1989); People v. Castro,545 N.Y.S.2d 985 minimal showing that the expert had followed a proper test pro(S. Ct. 1989).) However, after the enactment of the Federal Rules cedure. That laxity has not served the justice system well. Rather, of Evidence, a trend emerged toward the view that errors in test that approach paved the way for the admission of "junk science." procedure affected only the weight, not the admissibility, of sciMore to the point, there is now solid evidence that that lax apentific evidence. (Rockne Hamon, How Has DNA Evidence proach has contributed to a number of wTongful convictions. Fared?Beauty Is in the Eve of the Beholder, I ExPERr EviD. REP. Yet, it would be a mistake to react in knee-jerk fashion to the 149 (Feb, 1990).) The Daubertdecision added fuel to that trend. revelations of flawed expert testimony. The shock of those revelaThere the Court relied on Federal Rule of Evidence 402 as the tions makes it tempting to leap to the polar extreme and adopt basis for holding that Frye did not survive the adoption of the fed- blunderbuss measures such as legislative bans on various types of eral rules. The Court construed Rule 402 as abolishing uncodified expert testimony or announcing a exclusionary rules of evidence. categorical requirement that all ex(Daubert,supra,at 586-87.) In pert testimony be validated by conpertinent partn, Rule 402 anI too r scentficHowever, expentation and induction. it is not at nounces: "All relevant evidence is )l admissible, except as otherwise all clear that those measures would provided by the Constitution of the help. Quite to the contrary, it is p United States, by Act of Congress, likely that they would increase the by these rules, or by other rules courts' dependence on lay witness St i m ofyl prescribed by the Supreme Court testimony. Although expert testipursuant to statutory authority." mony undeniably has its weakThe Court approvingly quoted nesses, lay eyewitness evidence the statement of Professor Edward Cleary, the reporter for the appears to be at least equally susceptible to error. In that light, the Federal Rules of Evidence Advisory Committee, that "[i]n prinimposition of sweeping severe restrictions on expert testimony ciple, under the Federal Rules no common law of evidence remight well prove to be counterproductive. The result could easily mains." (Id. at 588.) Frye was no longer good law because it was be more rather than fewer inaccirate verdicts. The revelations in a creature of case law, and the statutory text of the federal rules the past decade have hopefully disabused the courts from the did not contain any language that could reasonably bear the intermisconception that forensic experts such as fingerprint analysts pretation that it incorporated a general acceptance standard. By and questioned document examiners are infallible. However, it the same token, prior to the December 1, 2000, amendment to would be foolish to bar all expert testimony by fingerprint anaRule 702, article VII did not include any language that seemed to lysts and questioned document examiners. prescribe a showing of proper test procedure. The argument runs The soundest-and the most challenging-approach is to dethat, like Frye's general acceptance test, the foundational requirevise reforms that improve the caliber of the expert testimony adment for a showing of proper test procedure was impliedly abolmitted without setting the admissibility hurdle too high. There are ished by Rule 402. The same argument can be raised in many of no magic bullets. However, ending the exemptions and mandating the more than 40 states with evidence codes patterned after the a showing of conect test procedure are sensible steps in the right federal rules, including statutes tracking Rule 402. (FederalRule direction. They hold the genuine promise of reducing the inciofEvidence 402: The Second Revolution, 6 REv. LmG. 129, 135- dence of miscarriage ofjustice. It is not asking too much to expect 36(1987).) both that every proponent of an expert theory or technique must Fortunately, effective December 1,2000, Rule 702 was demonstrate its reliability and that every expert will show that he amended to include a requirement for a foundational showing or she followed sound scientific protocol. Indeed, it would be irrethat "the witness has applied the principles and methods reliably sponsible to ask less. In this setting, the consequences of irresponto the facts of the case" The amendment closes the loopholes in sibility are both grave and predictable wrongful convictions.

a lax a expert tE

any took roach to

trolled

CRIMINAL JUSTICE a Spring 2003

ABA Criminal Jutice Section Nominations 2003-2004 SECTION DELEGATE TOTHE ABA HOUSE OF DELEGATES: Prof. Stephen Saltzburg of Washington, D.C., is a law professor at George Washington University Law School, He currently is a Section delegate, having held that position since November 2001. 6-

February 8, 2003, to nominate members for he Section's Committee met beginon with terms officer positions and Nominating Council ning inAugust 2003. Chair-elect Norman Maleng (the district attorney of King County in Seattle, Washington), will automatically become Section chair, in accordance with Section bylaws. Judge Catherine Anderson, of Minneapolis, Minnesota, who is currently vice-chair for planning, will automatically become Section chair-elect. The slate of nominees is as follows: ,- VICE-CHAIR FORPLANNING: Michael Pasano of Miami, Florida,

isa private practitioner who engages in criminal defense. He is currently serving his third year as the Section's vice-chair for CLE. ,VICE-CHAIR

FOR GOVERNMENTAL RELATIONS:

Joe D. Whitley is an

attorney specializing in white-collar and corporate criminal defense practice in Atlanta, Georgia. He isthe incumbent Section vice-chair for government relations, having been elected to that office in August 2002. Immediately prior to August 2002, he served for three years as a member of the Section Council (1999-2002). '-,

VICE-CHAIR FOR CLEPRoFEsSIONAL DEVELOPMENT:

Anthony

Joseph isan attorney from Birmingham, Alabama. He specializes in white-collar crime criminal defense, He iscurrently completing a three-year term as a Section Council member. i,

PUBLICATIONS: VICE-CHAIR FOR

Paul Rashkind of Miami,

Florida, isan attorney on the staff of the Federal Public Defender's Office for the Southern District of Florida. He iscurrently the vice-chair for publications, having served since August 2001 in that position.

CRIMINAL JUSTICE a Spring 2003

To fill five three-year Council seats, the following persons were nominated: , Barbara Berman is a trial attorney in the Terrorism and Violent Crime Section of the U.S. Department of Justice's Criminal Division. She served as an ABA Criminal Justice Section Council member from 1999 through August 2002, o,"Richard Devine is the state's attorney for Cook County (Chicago), Illinois. &. Robert Johnson is the Anoka County (Minnesota) attorney. He was a member of the ABA Criminal Justice Section Council from 1991-1995 and president of the National District Attorneys Association in 2000-2001. S. John Kaye has been the Monmouth County (New Jersey) prosecutor since 1983. He was president of the National District Attorneys Association in 1996. Barbara LaWall is the Pima County (Tucson, Arizona) attorney. The nominee to fill the Young Lawyers Division seat on the Section Council for a one-year term (must be under 36 years of age as of August 9, 2003): Andrea Taylor (Washington, D.C.), She is a saff member of the training division for the federal public defenders and currently holds the Young Lawyers Division seat on the Council. In addition to these nominations, candidates for a one-year term on the Council (Council member-at-large) are selected by a petitioning process. Petitions must be received by the Section staff office no later than June 11, 2003. Interested persons may obtain a copy of the petition and further details from Section Director Tom C.Smith by phoning (202) 662-1510.