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Imwinkelried, Edward J. --- "Regulating expert evidence in US courts: measuring Daubert’s impact" [2018] ELECD 1165; in Roberts, Paul; Stockdale, Michael (eds), "Forensic Science Evidence and Expert Witness Testimony" (Edward Elgar Publishing, 2018) 275

Book Title: Forensic Science Evidence and Expert Witness Testimony

Editor(s): Roberts, Paul; Stockdale, Michael

Publisher: Edward Elgar Publishing

ISBN: 9781788111027

Section: Chapter 9

Section Title: Regulating expert evidence in US courts: measuring Daubert’s impact

Author(s): Imwinkelried, Edward J.

Number of pages: 35

Abstract/Description:

The standard for regulating the admissibility of expert evidence in US legal proceedings has evolved. Formerly, US courts adopted a general acceptance test applicable to novel, instrumental techniques, whilst exempting other techniques from scrutiny. The Supreme Court’s decision in Daubert shifted to a validation standard that was eventually extended to all expert testimony. In the short term, plaintiffs find it more difficult to introduce testimony to support novel causation theories. Criminal courts more closely examine psychology and non-scientific expertise but generally still admit traditional forensic sciences. Daubert’s longer-term impact, it is argued, stems from the recognition of the inherent uncertainty of scientific analysis. Courts once assumed that science yields certainty. Experts subsequently came to realize that certainty is unattainable in investigational science. This is what Daubert acknowledged. Today, courts are receptive to probabilistic statistical testimony, and some exclude opinions phrased as certainties. It remains controversial whether an expert describing a measurement must attempt to quantify its uncertainty, for example, by providing a confidence interval. If its key methodological lesson is taken to heart, Daubert may usher in an era of more honest collaboration between law and science.