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Frye, Daubert, and the Ongoing Crisis of “Junk Science” in Criminal Trials Jim Hilbert Mitchell Hamline School of Law, [email protected]

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Frye, Daubert, and the Ongoing Crisis of “Junk Science” in Criminal Trials Jim Hilbert Mitchell Hamline School of Law, Jim.Hilbert@Mitchellhamline.Edu Mitchell Hamline School of Law Masthead Logo Mitchell Hamline Open Access Faculty Scholarship 2019 The Disappointing History of Science in the Courtroom: Frye, Daubert, and the Ongoing Crisis of “Junk Science” in Criminal Trials Jim Hilbert Mitchell Hamline School of Law, [email protected] Publication Information 71 Oklahoma Law Review 759 (2019) Repository Citation Hilbert, Jim, "The Disappointing History of Science in the Courtroom: Frye, Daubert, and the Ongoing Crisis of “Junk Science” in Criminal Trials" (2019). Faculty Scholarship. 460. https://open.mitchellhamline.edu/facsch/460 This Article is brought to you for free and open access by Mitchell Hamline Footer Logo Open Access. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Mitchell Hamline Open Access. For more information, please contact [email protected]. The Disappointing History of Science in the Courtroom: Frye, Daubert, and the Ongoing Crisis of “Junk Science” in Criminal Trials Abstract Twenty-five years ago, the Supreme Court decided one of the most important cases concerning the use of science in courtrooms. In Daubert v. Merrell Dow Pharmaceuticals , the Court addressed widespread concerns that courts were admitting unreliable scientific ve idence. In addition, lower courts lacked clarity on the status of the previous landmark case for courtroom science, Frye v. United States. In the years leading up to the Daubert decision, policy-makers and legal observers sounded the alarm about the rise in the use of "junk science" by so-called expert witnesses. Some critics went so far as to suggest that American businesses and the viability of the court system itself were at stake. Despite the likely exaggeration of such claims, the law of the admissibility of expert testimony certainly needed reform by the time of Daubert. As the Court itself acknowledged, there was a circuit split on the appropriate standard for courts to apply. Lower courts had been applying inconsistent criteria and, for the most part, had ignored the nearly twenty year-old codified rule of evidence on the subject. In addition, after a century of the growth of science in the courtroom, expert witnesses had become a prominent feature of the legal system, requiring courts to respond to more and more questions concerning the admissibility of their testimony. Part I of this Article will address the history of expert witness admission in the modem legal era and the important role of Frye. Part II of this Article will explore what led to Daubert and the Court's decision. Part III of this Article will distill the meaning of Daubert and subsequent Supreme Court cases and examine the many studies that have attempted to measure Daubert's impact on the court system. Part IV will discuss Daubert's limited impact on the criminal justice system, highlighting a few profoundly disturbing examples of unreliable forensic science that currently plague criminal courts. Part V will discuss potential options for improving how courts admit expert witness testimony. Keywords Daubert, Frye, Evidence, Expert witnesses, Junk science, Scientific ve idence Disciplines Evidence This article is available at Mitchell Hamline Open Access: https://open.mitchellhamline.edu/facsch/460 THE DISAPPOINTING HISTORY OF SCIENCE IN THE COURTROOM: FRYE, DAUBERT, AND THE ONGOING CRISIS OF "JUNK SCIENCE" IN CRIMINAL TRIALS JIM HILBERT* Introduction Twenty-five years ago, the Supreme Court decided one of the most important cases concerning the use of science in courtrooms.' In Daubert v. Merrell Dow Pharmaceuticals,2 the Court addressed widespread concerns that courts were admitting unreliable scientific evidence.3 In addition, lower courts lacked clarity on the status of the previous landmark * Jim Hilbert is an Associate Professor of Law at Mitchell Hamline School of Law and Co-Director of the Expert Witness Training Academy, which trains climate scientists through a grant from the National Science Foundation. He would like to thank Professor Peter Knapp, Professor Kate Kruse, and Professor Ted Sampsell-Jones for their helpful guidance, comments, and encouragement. 1. See David E. Bernstein, The Unfinished Daubert Revolution, ENGAGE: J. FEDERALIST Soc'y PRAC. GROUPS, Feb. 2009, at 35, 35 (declaring Daubertas "probably the most radical, sudden, and consequential change in the modern history of the law of evidence"); Barbara P. Billauer, Admissibility of Scientific Evidence Under Daubert: The Fatal Flaws of 'Falsifiability'and 'Falsification,'22 B.U. J. Sci. & TECH. L. 21, 23 (2016) [hereinafter Billauer, Admissibility] (claiming the Daubert decision "would profoundly change the face of scientific evidence in American courts"); David L. Faigman, The DaubertRevolution and the Birth of Modernity: Managing Scientific Evidence in the Age of Science, 46 U.C. DAVIS L. REV. 893, 895 (2013) (describing the changes ushered in by Daubert as "revolutionary"); Erin Murphy, Neuroscience and the Civil/Criminal Daubert Divide, 85 FORDHAM L. REV. 619, 621 (2016) ("When announced by the U.S. Supreme Court in 1993, Daubert was heralded as a watershed moment in the treatment of scientific evidence."). 2. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). 3. According to a popular, yet polemical, book at the time, the courts were overrun with pseudo-science and fake expertise in the late 1980s. See PETER W. HUBER, GALILEO'S REVENGE: JUNK SCIENCE IN THE COURTROOM 2 (1991) ("Maverick scientists shunned by their reputable colleagues have been embraced by lawyers. Eccentric theories that no respectable government agency would ever fund are rewarded munificently by the courts. .. Courts resound with elaborate, systematized, jargon-filled, serious-sounding deceptions that fully deserve the contemptuous label used by trial lawyers themselves: junk science."). For a more thorough discussion, and critique, of Huber's book, see infra notes 108-114 and accompanying text. 759 760 OKLAHOMA LAWREVIEW [Vol. 71:759 case for courtroom science, Frye v. United States. In the years leading up to the Daubert decision, policy-makers and legal observers sounded the alarm about the rise in the use of "junk science" by so-called expert witnesses.5 Some critics went so far as to suggest that American businesses and the viability of the court system itself were at stake. Despite the likely exaggeration of such claims, the law of the admissibility of expert testimony certainly needed reform by the time of Daubert.' As the Court itself acknowledged, there was a circuit split on the appropriate standard for courts to apply." Lower courts had been applying inconsistent criteria and, for the most part, had ignored the nearly twenty- year-old codified rule of evidence on the subject. 9 In addition, after a century of the growth of science in the courtroom,1o expert witnesses had 4. Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923), overruled by Daubert, 509 U.S. 579. In Daubert, the Court held that Frye was superseded by Federal Rule of Evidence 702, which governs expert testimony in federal courts. Daubert, 509 U.S. at 588. 5. In the early 1990s, "[t]he President's Council on Competitiveness, chaired by former Vice President Dan Quayle, established a Civil Justice Reform Task Force" to examine the perceived proliferation of unreliable expert testimony. Paul C. Giannelli, 'Junk Science': The Criminal Cases, 84 J. CRIM. L. & CRIMINOLOGY 105, 109 (1993). Vice President Quayle became an outspoken advocate for reforming the tort system, claiming that "uncontrolled use of expert witnesses ... has also allowed 'junk science' to tarnish the legal process." Dan Quayle, Civil Justice Reform, 41 Am. U. L. REV. 559, 565 (1992). 6. One leading book spared no hyperbole. See WALTER K. OLSON, THE LITIGATION EXPLOSION: WHAT HAPPENED WHEN AMERICA UNLEASHED THE LAWSUIT 2 (1991) ("The unleashing of litigation in its full fury has done cruel, grave harm and little lasting good. It has helped sunder some of the most sensitive and profound relationships of human life .... ). 7. Indeed, the standards of how expert witness testimony would be assessed had been inconsistent for the previous 100 years or more. The variety of ways courts assessed the admissibility of expert witnesses "became the crucible in which Frye was reexamined, sometimes questioned, often implicitly modified, and occasionally rejected." Mark McCormick, Scientific Evidence: Defining a New Approach to Admissibility, 67 IOWA L. REV. 879, 885 (1982). 8. Daubert, 509 U.S. at 585 ("We granted certiorari in light of sharp divisions among the courts regarding the proper standard for the admission of expert testimony.") (citation omitted). 9. See, e.g., Jean Macchiaroli Eggen, Toxic Torts, Causation, and Scientific Evidence After Daubert, 55 U. PITT. L. REV. 889, 910 (1994) (evaluating cases and writing at the time of the Daubert decision that "courts have been uncertain regarding the precise scope of the Federal Rules"). 10. Jennifer L. Mnookin, Expert Evidence, Partisanship,and Epistemic Competence, 73 BROOK. L. REV. 1009, 1009 (2008) ("In various ways, skilled witnesses have been used in courtroom processes since just about the dawn of the jury trial. The expert witness in its modern form-a witness whose presence in court results not from being a percipient witness 2019] THE CRISIS OF "JUNK SCIENCE" IN CRIMINAL TRIALS 761 become a prominent feature of the legal system, requiring courts to respond to more and more questions concerning the admissibility of their
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