This critical essay examines the effects of the United States Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and its progeny on the criminal justice system at both the federal and state levels. While Daubert addressed the admissibility of scientific evidence in a civil action, the role of scientific evidence is most crucial in the criminal courts, where the testimony of an ‘expert’ in some or another scientific field frequently is the difference between conviction and acquittal. In Daubert, the Supreme Court ruled unanimously that the more liberal standards of the Federal Rules of Evidence, which are applied to both civil and criminal proceedings, supersede the more restrictive Frye rule, a common law standard adopted by the federal courts in 1923.
In Daubert, the Supreme Court held that the ‘general acceptance’ condition of Frye is not a necessary precondition to the admissibility of scientific evidence under the Federal Rules. Rather, the Supreme Court proclaimed that the Federal Rules of Evidence assign to the trial judge the ‘gate-keeping’ function of determining whether an expert’s testimony rests on a reliable foundation and is relevant to the proceedings at hand. If so, then the scientific evidence is admissible and may be considered by the finder of fact, usually the jury.
At issue in Daubert was the definition of ‘scientific knowledge’ within the meaning of the Federal Rules of Evidence, the possession of which is a prerequisite for the testimony of an ‘expert.’ Since its decision in Daubert, the Supreme Court has been criticized for its ‘misguided’ attempt to demarcate science from non-science, and the clarity of the philosophy of science expressed in Daubert has been called into question. Moreover, in 1999, the Supreme Court extended the scope of Daubert beyond scientific knowledge to include all ‘expert’ testimony based on ‘technical’ and ‘other specialized knowledge.’
As the Federal Rules of Evidence apply only to proceedings in the federal courts, Daubert is not binding on the state courts in most instances. Nevertheless, a number of states have followed the Supreme Court’s lead and abandoned the Frye rule in favor of the standards set forth in Daubert. In fact, over 1000 state Daubert cases have been reported since the original Daubert decision. This essay appraises the effects of Daubert and its progeny on cases decided in the criminal courts and the attendant implications for the future of the criminal justice system. In so doing, the author hopes to determine whether the adoption of the new Daubert standards advances the administration of justice by anticipating the continuing efflorescence of scientific and technical skill in our society and the need for judicial flexibility in justly integrating the fruits thereof into the courtroom, or instead empowers the judge to wrap a pseudoscientific noose around the defendant’s neck, the conclusion toward which the author is more inclined.
