Defining the."Task at Hand":Non-Science Forensic Science AfterKumho Tire Co. v. Carmichael

I. The Lessons of Kumho Tire Co. v. Carmichael The 1970s and early 1980s were a period of virtually unbridled expansion of asserted expertise in civil and criminal courtrooms, limited only by the imagination of an attorney with a point to prove and a hole in her more conventional evidence.1 The appeal of using such experts stemmed in large part from two aspects of the law, one in regard to experts and one in regard to sufficiency of evidence. Courts allowed experts to phrase opinion testimony in terms of the ultimate issues in the case.2 If the "opinion" of the expert was competent, the jury might adopt the opinion in toto, making failure of proof on the issue legally impossible. Combine this situation with decidedly lax threshold standards of admissibility for expertise, and the stage was set for the acceptance of some fairly questionable practices in the utilization of expertise by litigants. Consequently, although all sides were free to play the game, the result was generally much more favorable to parties with the proof burdens (generally civil plaintiff and the prosecution in criminal cases, though criminal defendants were substantial players in regard to various affirmative d). In the mid and late 198 Os, critics raised their voices in protest, saying that the kind of expertise the courts regularly accepted as admissible was frankly "junk" of scandalous lack of dependability. Voices protested the lack of reliability in both criminal and civil spheres,3 but the voice that finally spoke loudest and was heard most clearly, spoke almost exclusively of the injustice of junk expertise used against civil defendants. I refer, of course, to Peter Huber and his 1991 book, Galileo's Revenge,4 which popularized the phrase "junk science." Given the polemical success of that book, it seems unlikely to have been pure coincidence that the United States Supreme Court chose a civil case to review the appropriate threshold criteria of reliability for expert testimony, or that its two subsequent forays into these waters have also been in civil cases. Be that as it may, the pronouncements of the Supreme Court are given as trans-substantive constructions of the Federal Rules of Evidence, and so have application in criminal as well as civil cases. The wellspring case, as everyone knows, is Daubert v. Merrell Dow Pharmaceuticals, Inc.' Like many groundbreaking decisions, Daubert was neither fully worked out nor fully coherent. The day after the Court decided Daubert, the Washington Post characterized it as a victory for those who wanted expertise more easily admitted, while the New York Times characterized it as a victory for those who wanted more expertise rejected.6 This schizoid characterization of the case has continued in both academic commentary and lines of judicial decision down to the present time.' In a recent opinion, Judge Gertner ofthe Massachusetts U. S. District Court attributes this to what she calls "competing vectors" in the Daubert opinion.' The first vector, which points towards a more rigorous standard of reliability, is characterized by the Court's emphasis on scientific standards and its encouragement of gatekeeping review under Rule 702 of the Federal Rules of Evidence. …