Junk Science in the United States and the Commonwealth David E. Bernsteint I. INTRODUCTION .............................................. 124 II. THE AMERICAN LAW OF SCIENTIFIC EVIDENCE .......................... 126 A. The Frye General Acceptance Test and Its Critics ..................... 127 B. The Emergence of the Reliability Test ............................. 129 C. The Evidentiary Challenge of Toxic Tort Litigation ..................... 130 D. The Revival of Frye ........................................ 132 E. The Supreme Court Enters the Fray ............................... 134 III. THE ADMiSSImrrY OF SCIENTIFIC EVIDENCE IN CANADA, AUSTRALIA, NEW ZEALAND, AND ENGLAND .............................................. 138 A. The Law of Scientific Evidence in Canada ........................... 139 1. The Frye Debate in Canada ................................ 140 2. The Canadian Supreme Court Adopts a Liberal Approach ............. 141 3. Lower Court Reaction .................................... 142 4. The Canadian Supreme Court's Latest Pronouncementon Scientific Evidence: R. v. Mohan .. ....................................... 145 B. The Law of Scientific Evidence in Australia .......................... 148 1. The Misintroduction of the Frye General Acceptance Test Into Australia .... 149 2. The Effect of the Miscarriageof Justice Cases .................... 151 3. The Australian Law Reform Commission Report Favors a Relevancy Test ... 154 4. Strict Scrutiny Gains Momentum ............................ 155 5. The Australian Evidence Code .............................. 161 C. The Law of Scientific Evidence in New Zealand ....................... 162 1. Frye in New Zealand ................................... 163 2. Recent Developments in New Zealand .......................... 165 D. The Law of Scientific Evidence in England .......................... 166 1. English Law on the Admissibility of Scientific Evidence .............. 166 2. Reforns of the ForensicScience System. ........................ 170 IV. LESSONS .................................................. 173 A. The Junk Science Problem is Real ................................ 173 B. JuriesAre Not Competent to Decide Complex Scientific Issues ............. 174 C. Tightening the Rules for the Admissibility of Scientific Evidence Is a Second-Best Solution to the Problem of Junk Science in Tort ....................... 178 D. Tightening the Rules for the Admissibility of Scientific Evidence Will Not Solve the Junk Science Problem in Criminal Cases; Broader Reforms are Needed ........ 181 V. CONCLUSION ............................................... 182 t Assistant Professor, George Mason University School of Law; J.D. 1988, Yale Law School; B.A. 1994, Brandeis University. The author thanks Mark Aronson, Solveig Bernstein, Bert Black, Harold Edgar, Ian Freckelton, Edward lmwinkelried, and John McGinnis for their comments. Tim Blake provided helpful citations to New Zealand law. Portions of this article were presented to law faculty workshops in April 1995 at the University of Melbourne, the University of New South Wales, the University of Queensland, Sydney University, and Waikato University (N.Z.). The author researched this article while serving as a Research Fellow in the Julius Silver Program in Law, Science & Technology at Columbia University School of Law, generously sponsored by the Mellon Foundation. 124 YALE JOURNAL OF INTERNATIONAL LAW [Vol. 21:123 I. INTRODUCTION At one time the use of forensic science in American criminal trials was relatively rare. Since the mid-1970s, however, prosecutors have been using a growing number of forensic techniques with ever greater frequency. The use of scientific evidence in criminal cases has been controversial. Critics have argued, with some success, that many forensic techniques are unreliable and should be excluded from court.' As controversy over the reliability of evidence based on forensic science in criminal trials increased through the 1980s, an even more vociferous debate arose over the alleged misuse of scientific evidence in toxic tort litigation. Toxic tort cases involve allegations of injury from exposure to environmental pollutants or pharmaceuticals. Once quite rare, these cases became relatively commonplace by the early 1980s.2 Soon thereafter, critics began to express skepticism regarding the evidence relied upon by plaintiffs in many of these cases. By the early 1990s, prominent critics such as Bert Black,3 Peter Huber,4 and even then-Vice President Dan Quayle5 were arguing that plaintiffs' attorneys often misused scientific evidence in toxic tort cases. Huber popularized the phrase "junk science" as a description of scientific evidence that is either inherently unreliable, or that is being stretched well beyond its limitations. Plaintiffs' attorneys and their defenders, meanwhile, argued that Huber and other critics were wildly overstating the junk science problem, if it existed at all. Some legal scholars, editorialists, and others argued that juries must be 1. For recent criticism of forensic science evidence, see, e.g., Paul C. Giannelli, The Admissibility ofLaboratory Reports in Criminal Trials: The Reliability of Scientific Proof, 49 OHIO ST. L.J. 671 (1988); Paul C. Giannelli, 'Junk Science: The Criminal Cases, 84 J. CRIM. L. & CRIMINOLOGY 105 (1993); Randolph N. Jonakait, Forensic Science: The Needfor Regulation, 4 HARV. J.L. & TECH, 109 (1991); Andre A. Moenssens, Novel Scientific Evidence in Criminal Cases: Some Words of Caution, 84 J. CRIM. L. & CRIMINOLOGY 1 (1993); Michael J. Saks, Implicationsof the Daubert Testfor ForensicIdentification Science, 1 SHEPARD'S EXPERT & Sci. EVIDENCE Q. 427 (1994). These articles cite other works criticizing forensic science evidence over the last two decades. Voiceprint evidence is an example of forensic science evidence that flourished in the mid-1970s until criticism led to its almost universal exclusion. Prosecutors gradually stopped offering voiceprint evidence after a panel appointed by the National Academy of Sciences concluded that the reported scientific results showed that the accuracy of voice identifications did not improve when voice spectrograms are used. COMM. ON EVALUATION OF SOUND SPECTROGRAMS, NAT'L RESEARCH COUNCIL, ON THE THEORY AND PRACTICE OF VOICE IDENTIFICATION (1979). The report added that there is no "solid theoretical basis of answers to scientific questions concerning the foundations of voice identification. This disparity between practice and theory appears to be recognized by practitioners and scientists involved in the field of voice identification." Id. at 10. Other techniques, such as forensic hair analysis, have survived criticism. Recently, however, a federal district court rejected evidence based on hair comparison, finding that it was not scientifically valid. Williamson v. Reynolds, No. CIV. 94-539-S, 1995 WL 558566, at *29 (E.D. Okla. Sept. 19, 1995); see also Edward J. Imwinkelried, ForensicHairAnalysis: The CaseAgainstthe Underemploymentof Scientific Evidence, 39 WASH. & LEE L. REV. 41, 44 (1982) (noting that forensic hair analysis has been found to have very high rate of error). 2. See Robert F. Blomquist, American Toxic Tort Law: An Historical Background, 1979-87, 10 PACE ENVTL. L. REV. 85 (1992) (discussing rise of toxic tort litigation in 1980s). 3. Bert Black, A Unified Theory of Scientific Evidence, 56 FORDHAM L. REV. 595 (1988). 4. PETER W. HUBER, GALILEO'S REVENGE: JUNK SCIENCE IN THE COURTROOM (1991). 5. Dan Quayle, CivilJusticeReform, 41 AM. U. L. REV. 559, 565-66 (1992); Dan Quayle, Address Before the American Bar Association, Aug. 13, 1991, available in LEXIS, Fednew File. 1996] Junk Science protected from the scourge of junk science. Like-minded judges began to scrutinize scientific evidence closely before admitting it at trial and to exclude evidence that did not meet their strict standards. Other judges were content to rely on the adversarial system to-reveal any flaws in tendered scientific evidence. These judges favored admitting any scientific evidence that seemed relevant, and therefore rarely excluded scientific evidence before trial. The debate over the proper standards for the admissibility of scientific evidence reached the United States Supreme Court in 1993 in Daubert v. Merrell Dow Pharmaceuticals.6 The Court essentially adopted a rather strict reliability test, but the opinion was not sufficiently conclusive to end the controversy. While the junk science debate has raged in the United States, a similar debate has simmered in several other common law jurisdictions. Legal scholars and judges in England, Canada, Australia, and New Zealand have been struggling with the issue of what standards they should use in deciding whether to admit expert scientific testimony. Because of the wealth of U.S. commentary and precedent on the admissibility of scientific evidence, the American debate has often spilled over to the Commonwealth.7 Commonwealth courts and commentators frequently cite U.S. sources to justify their positions regarding scientific evidence. American commentators, however, have almost completely ignored legal and intellectual developments regarding scientific evidence in the Commonwealth. Of the hundreds of American law review articles that discuss scientific evidence, not a single one has a comparative focus. Indeed, these articles rarely cite any cases concerning scientific evidence from jurisdictions outside the United States. One unfortunate consequence of the failure of Americans to take note