Tulsa Law Review Volume 43 Issue 2 Daubert, Innocence, and the Future of Forensic Science Winter 2007 Meeting the Challenges of the Daubert Trilogy: Refining and Redefining the Reliability of orF ensic Evidence Mara L. Merlino Victoria Springer Jan Seaman Kelly Derek Hammond Follow this and additional works at: https://digitalcommons.law.utulsa.edu/tlr Part of the Law Commons Recommended Citation Mara L. Merlino, Victoria Springer, Jan S. Kelly, & Derek Hammond, Meeting the Challenges of the Daubert Trilogy: Refining and Redefining the Reliability ofor F ensic Evidence, 43 Tulsa L. Rev. 417 (2013). Available at: https://digitalcommons.law.utulsa.edu/tlr/vol43/iss2/9 This Article is brought to you for free and open access by TU Law Digital Commons. It has been accepted for inclusion in Tulsa Law Review by an authorized editor of TU Law Digital Commons. For more information, please contact [email protected]. Merlino et al.: Meeting the Challenges of the Daubert Trilogy: Refining and Redef MEETING THE CHALLENGES OF THE DAUBERT TRILOGY: REFINING AND REDEFINING THE RELIABILITY OF FORENSIC EVIDENCE Mara L. Merlino,* Victoria Sprnger *Jan Seaman Kell Derek Hammond, Eric Sahota, & Lori Haines I. INTRODUCTION Daubert1 and its progeny, General Electric Co. v. Joiner2 and Kumho Tire Co. v. Carmichael,3 established new guidelines and procedures for determining the evidentiary reliability of expert testimony. Following the Daubert trilogy, the admissibility of expert testimony is presumably based not only on an analysis of the evidence's legal merits and Frye's general acceptance standard,4 but also on the judicial analysis of the qualifications of the expert, the methods by which the expert arrives at his or her 5 conclusions, and even the conclusions themselves. Judges' interpretations of their gatekeeping responsibilities under the Daubert trilogy have imposed more objective, stringent requirements (relevancy, legal sufficiency, and reliability) for the admissibility of some kinds of evidence which for * To whom all correspondence concerning this article should be addressed, Grant Sawyer Center for Justice Studies, University of Nevada, Reno, MS 313, University of Reno, Reno, NV, 89557, (775) 784-6272, [email protected]. The authors would like to thank Grant Sawyer Center graduate research assistants Valerie Lykes, Lyssette Chavez, and Josey Vargas for their hard and careful work on the content analysis of case law. ** Graduate Research Assistant, Grant Sawyer Center for Justice Studies and doctoral student in the Interdisciplinary Ph.D. Program in Social Psychology at the University of Nevada, Reno. *** Forensic Scientist, Las Vegas Metropolitan Police Laboratory, Las Vegas, NV, and Executive Council member, Skill-Task Training, Assessment & Research, Inc., Las Vegas, NV, [email protected]. **** Forensic Document Examiner, United States Army Criminal Investigation Laboratory, Forest Park, Georgia, and Executive Council member, Skill-Task Training, Assessment & Research, Inc., Las Vegas, NV, [email protected]. ***** Forensic Scientist, Latent Print Detail, Las Vegas Metropolitan Police Laboratory, Las Vegas, NV, [email protected]. ******Forensic Scientist, Latent Print Detail, Las Vegas Metropolitan Police Laboratory, Las Vegas, NV, [email protected]. 1. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 580 (1992). 2. 522 U.S. 136 (1997). 3. 526 U.S. 137 (1999). 4. Frye v. US., 293 F. 1013 (D.C. Cir. 1923). 5. See Margaret Berger, The Supreme Court's Trilogy on the Admissibility of Expert Testimony, in Reference Manual on Scientific Evidence 11 (2d ed., Fed. Jud. Ctr. 2000); Michael H. Gottesman, From Barefoot to Daubert to Joiner: Triple Play or Double Error?40 Ariz. L. Rev. 753 (1998); Joseph Sanders et al., Legal Perceptions of Science and Expert Knowledge, 8 Psychol. Pub. Policy & L. 139 (2002). Published by TU Law Digital Commons, 2007 1 TULSA LA W REVIEW [Vol. 43:417 Tulsa Law Review, Vol. 43 [2007], Iss. 2, Art. 9 seventy years had been considered admissible under the Frye decision's general acceptance standard, while other kinds of evidence have remained relatively unaffected by the Daubert trilogy. 6 Confronted with challenges to the admissibility of evidence from their various fields, forensic practitioners have responded to the questions about the reliability of their testimony by seeking ways to both improve their disciplines and demonstrate to judges, attorneys, academicians, and fellow experts that their underlying assumptions, methods, and conclusions meet the requirements of the Dauberttrilogy. This discourse among practitioners, judges, attorneys, law professors, and evidence scholars about how the admissibility of expert testimony from the forensic fields should be determined illustrates an issue relevant to all expert testimony. Gary Edmond wrote [b]ecause the various sciences maintain different approaches, theories, criteria, canons of practice, metaphysics, status, levels of relevance, levels of abstraction and so on, it would be highly naive to suggest that we could expect some basic or universal criteria which 7 could be applied consistently to determine "reliability." Experts, attorneys, and judges use normative images of science to explain and legitimate decisions about relevance, sufficiency, and admissibility, although "science" itself may be discredited as just another social activity. 8 Thus, information heard by triers of fact does not directly represent nature. It contains a social component consisting of human agency, institutions and their norms and values, and the processes of science. Debates about the admissibility of many forms of expert testimony following Daubert and its progeny illustrate this social component of scientific knowledge. The movement of expert testimony from the status of "proffer" to that of "admissible evidence" is a social process in which experts, attorneys, and judges all participate. It is a negotiated 9 ' 10 movement from "science," which is itself a social construction, to "legal science," which is mediated by the rhetoric and discourse of attorneys, judges, and academicians. This paper presents a view of changes in the production and presentation of expert testimony in forensic document examination and latent fingerprint examination, two major areas of forensic practice. Part II presents a brief summary of findings from an empirical content analysis of published judicial decisions concerning cases in which forensic document and latent fingerprint expert testimony were challenged following the 1993 Daubert decision. The purpose of this study of case law was to provide a context for the subsequent sections by empirically examining patterns of cases and the variety of factors that judges discuss when describing the reasons for their admissibility decisions. Part III presents a discussion of the impact of Daubert on the field of forensic document examination from the point of view of two experts, and the steps taken by forensic document examiners to meet the requirements of the Daubert trilogy. Part IV presents a discussion of the impact of Daubert on the field of latent fingerprint examination and the 6. Mara L. Merlino et al., Judicial Gatekeeping and the Social Construction of the Admissibility of Expert Testimony, _ Behavioral Sci. & L. _ (forthcoming 2008). 7. Gary Edmond, JudicialRepresentations of Scientific Evidence, 63 Modem L. Rev. 216, 251 (2000). 8. See generally David S. Caudill, Law and Science: An Essay on Links and Socio-Natural Hybrids, 51 Syracuse L. Rev. 841 (2001). 9. See generally Sheila Jasanoff, What Judges Should Know about the Sociology of Science, 77 Judicature 77 (1993). https://digitalcommons.law.utulsa.edu/tlr/vol43/iss2/910. See Caudill, supra n. 8, at 842. 2 2007] MEETING THE CHALLENGES OF THE DAUBERT TRILOGY 419 Merlino et al.: Meeting the Challenges of the Daubert Trilogy: Refining and Redef steps taken by latent fingerprint examiners in response to the Daubert trilogy, again from the perspective of two experts. Part V examines the empirical data and the discussion by forensic professionals in the context of the sociology of science, and discusses how the tenets of this sociological perspective are demonstrated in the discourse surrounding the social construction of evidentiary reliability and the admissibility of forensic expert testimony. II. CONTENT ANALYSIS OF CASE LAW We identified a total of 65 cases with 76 codeable proffers in which the admissibility of forensic document examination (30 cases with 37 codeable proffers) or latent print examination (35 cases with 39 codeable proffers) was challenged.'' Eight of these cases (5 forensic document and 3 latent print) are civil, and 68 (32 questioned document and 36 latent print) are criminal. Of the 37 challenges to proffers of forensic document examination expert testimony in this sample, the greatest number (n = 10) have been in the Sixth Circuit. Seven have occurred in the Ninth Circuit, five have occurred in the Eleventh Circuit, three have occurred in both the Second and Fourth Circuits, two have occurred in both the First and Third Circuits, and one challenge each has occurred in the Fifth, Seventh, and Tenth Circuits. Of the 39 challenges to proffers of latent print examination testimony in this sample, eight have been made in both the Third and the Seventh Circuit. Five challenges have occurred in both the Fourth and Fifth Circuit, four have occurred in the Sixth Circuit, two have occurred in the First, Second, Ninth, and Eleventh Circuits, and one has occurred in the