Paradoxical Validity Determinations: A Decade of Antithetical Approaches to Admissibility of Expert Evidence

Over the past decade, courts throughout the common law system have taken an increasingly antithetical approach to expert testimony. In civil cases, and in criminal DNA identification cases, courts appear to be actively engaged in scrutinizing the scientific testimony that comes before them. Defense attorneys appear to have little difficulty in challenging questionable scientific testimony. Research scientists are brought into the discourse as experts for the parties or the court. Courts are articulating the bases for their admissibility decisions, and these decisions are being reviewed on appeal. In the criminal cases, however, where criminal identification procedures other than DNA are concerned, each of the participants in the legal process has failed. Prosecutors repeatedly present experts whose testimony they have reason to know is (at best) dubious. Defense attorneys fail to bring challenges to the scientific validity of even patently flawed expert testimony. Courts, when challenges do arise, fail to engage in serious gatekeeping. And reviewing courts refuse to find shoddy gatekeeping to be an abuse of discretion. The consequence of this antithetical approach to admissibility, is that the rational search for truth, in which the adversary system is supposedly engaged, is taken seriously only in civil cases. While the civil courts are busy minutely scrutinizing scientific studies proffered as the basis for expert testimony, the criminal courts are admitting into evidence testimony (again, with the exception of DNA) for which those studies have never been done. This antithetical approach imposes unacceptable costs on the entire justice system.