The Impact of Daubert on the Admissibility of Forensic Anthropology Expert Testimony

Forensic anthropologists anticipated a significant impact from the 1993 Supreme Court Daubert decision, which addressed the standard of admissibility for expert testimony. In response, many forensic articles cited Daubert in the search for objective techniques or a critique of established subjective methods. This study examines challenges to forensic anthropological expert testimony to evaluate whether Daubert has actually affected the admissibility of such testimony. Thirty cases were identified that addressed the admissibility of the testimony, including 14 cases prior to Daubert and 16 after Daubert. Examination of these cases indicates that post‐Daubert cases do not result in more exclusions. Yet, this lack of exclusions may instead be viewed as a manifestation of the field's overall surge toward more objective and quantifiable techniques in a self‐regulating response to Daubert.     

The over-citation of Daubert in forensic anthropology

The 1993 US Supreme Court decision Daubert v. Merrell Dow Pharmaceuticals, Inc. presented new guidance for the judicial assessment of expert witness evidence and testimony in the determination of admissibility. Despite the rarity of admissibility challenges to forensic anthropology evidence, Daubert is frequently cited in published forensic anthropology research. This study undertook a qualitative thematic analysis of forensic anthropology articles published in the Journal of Forensic Sciences to assess why authors continue to cite Daubert and express concerns over potential exclusion. The results show a significant increase in the number of articles that cite legal admissibility standards over time (p < 0.001). Authors frequently cite these standards to contextualize their results within the Daubert framework or to justify the need for their research. Notably, many articles present Daubert as a constraining force, misinterpreting the guidelines as rigid criteria or that they require methods to be strictly quantitative. However, Daubert was intended to be a flexible tool for judges—not a standard or instruction for scientists. While it was reasonable to reflect on the scientific rigor of methods in the wake of the Daubert decision, a new perspective is warranted in which forensic anthropologists shift their focus from trying to “satisfy” admissibility guidelines to adopting quality assurance measures that minimize error and ensure confidence in analytical results, and developing and using methods that are grounded in good science—which is important regardless of whether or not the results are ever the subject of a trial.     

论鉴定结论的证据能力

鉴定证据规则在本质上是一套规范鉴定结论证据能力的规则，为此，我们需要构建完善的证据能力规则和排除规则来规范鉴定人出庭问题，辩护方鉴定结论的使用问题。并要完善相关的其它制度。     

Setting the Record Straight: Comment on Gurley,Piechowski, Sheehan,and Gray (2014) on the Admissibility of the Rorschach Performance Assessment System (R-PAS) in Court

Gurley et al. (Psychological Injury and Law 7:9–17, 2014) express reservations about the admissibility of testimony based on the Rorschach Performance Assessment System (R-PAS) in court. They question whether there is sufficient evidentiary foundation in the underlying psychometrics and adequate general acceptance among psychologists for R-PAS-based testimony to meet either the Daubert or Frye criteria for admissibility and also raise doubts about how well it meets the criteria for the use of forensic tests proposed by Heilbrun (Law and Human Behavior 16:257–272, 1992). This invited comment addresses their concerns about the admissibility of R-PAS-based testimony and corrects some erroneous statements about the psychometrics of R-PAS and the pertinent empirical literature. Gurley et al. characterize R-PAS as being in competition with the established Comprehensive System (CS; Exner 2003), though we clarify that it is actually an evolutionary development from the CS and designed to be a replacement for it. We also point out how their conclusion that R-PAS-based forensic testimony may be hazardous or premature is based on an insufficient familiarity with the R-PAS scientific and professional literature, a misinterpretation of the Frye and Daubert evidentiary standards, and a mischaracterization of several of Heilbrun’s (Law and Human Behavior 16:257–272, 1992) criteria for the use of tests in forensic testimony.     

THE SCIENTIFIC BASIS OF PSYCHOLOGICAL TESTING

The legal standards for admissibility of expert testimony have recently been raised following several U.S. Supreme Court decisins. Although forensic mental health experts have relied on psychological testing as a method of data collection for many years, the scientific basis of such testing has traditionally gone unquestioned in court. Given the increased scrutiny currently being applied to expert testimony, it is more important now than ever for attorneys, judges and forensic experts to understand the scientific principles underlying psychological tests. In this article, the scientific principles of validity and reliability are explained, and scientifically acceptable methods for the forensic use of psychological testing are discussed. The application of recent case law to several well-known tests is described.     

Educating Jurors about Forensic Evidence: Using an Expert Witness and Judicial Instructions to Mitigate the Impact of Invalid Forensic Science Testimony

Invalid expert witness testimony that overstated the precision and accuracy of forensic science procedures has been highlighted as a common factor in many wrongful conviction cases. This study assessed the ability of an opposing expert witness and judicial instructions to mitigate the impact of invalid forensic science testimony. Participants (N = 155) acted as mock jurors in a sexual assault trial that contained both invalid forensic testimony regarding hair comparison evidence, and countering testimony from either a defense expert witness or judicial instructions. Results showed that the defense expert witness was successful in educating jurors regarding limitations in the initial expert's conclusions, leading to a greater number of not-guilty verdicts. The judicial instructions were shown to have no impact on verdict decisions. These findings suggest that providing opposing expert witnesses may be an effective safeguard against invalid forensic testimony in criminal trials.     

THE EMERGING FORENSIC ROLE FOR WORK PRODUCT REVIEW AND CASE ANALYSIS IN CHILD ACCESS AND PARENTING PLAN DISPUTES

An emerging forensic service is that of conducting a work product review of a court‐appointed child custody evaluator's evaluation and report. If the reviewer determines there are serious deficiencies in the work product, then the reviewer will provide consultation to the retaining attorney and expert testimony. The reviewer usually is in a hybrid role of consulting/advising the retaining attorney, testifying, and educating the court. Ethical issues in providing forensic services and rebuttal testimony as a reviewer are discussed. Both reviewers and evaluators have a duty to be objective and balanced in their analyses of data and issues. Both types of experts should strive to be helpful to the court and try to serve the best interests of children. Ethical nuances involving review work are discussed. Evaluator and reviewer share the same dataset. Evaluators need to take care to keep a high quality case record with legible interview notes. Reviewers provide a monitoring function for the court or a function of forensic quality control so the court will not be misled by expert testimony of evaluators that is based on flawed data collection and/or analysis. A list of questions is presented for reviewers to use in scrutinizing the quality of the custody evaluation. A list of questions is presented for examining the quality of the reviewer's own work product. The importance of a case analysis and use of conceptual frameworks by evaluators and reviewers is discussed.     

Forensic Confirmation Bias: Do Jurors Discount Examiners Who Were Exposed to Task-Irrelevant Information?*†

Knowledge of task-irrelevant information influences judgments of forensic science evidence and thereby undermines their probative value (i.e., forensic confirmation bias). The current studies tested whether laypeople discount the opinion of a forensic examiner who had a priori knowledge of biasing information (i.e., a defendant's confession) that could have influenced his opinion. In three experiments, laypeople (N = 765) read and evaluated a trial summary which, for some, included testimony from a forensic examiner who was either unaware or aware of the defendant's confession, and either denied or admitted that it could have impacted his opinion. When the examiner admitted that the confession could have influenced his opinion, laypeople generally discounted his testimony, as evidenced by their verdicts and other ratings. However, when the examiner denied being vulnerable to bias, laypeople tended to believe him—and they weighted his testimony as strongly as that of the confession-unaware examiner. In short, laypeople generally failed to recognize the superiority of forensic science judgments made by context-blind examiners, and they instead trusted examiners who claimed to be impervious to bias. As such, our findings highlight the value of implementing context management procedures in forensic laboratories so as not to mislead fact-finders.     

Psychological Testimony and the <Emphasis Type="Italic">Daubert</Emphasis> Standard

In the legal system, mental health professionals are now a primary source for expert information. Because potentially every psychologist might be drawn into a legal situation, competency requires accommodation of the nexus between the legal system and professional ethics and standards. Three particular Supreme Court cases create a framework for testifying about psychological information. This article reviews those three cases, defines the commitment to evidence-based (scientific) testimony, and explains how psychological ethics and standards should be accommodated. It reviews the major issues that psychologists face in Daubert admissibility challenges. Finally, it makes pertinent recommendations to help avoid the pitfall in dealing with court.     

Forensic Facial Comparison: Issues of Admissibility in the Development of Novel Analytical Technique

Much contemporary debate in forensic science concerns validity and admissibility of scientific evidence in court. In this paper, three current approaches to facial identification—image superimposition, photogrammetry, and morphological analysis—are considered with regard to criteria for scientific evidence in the United States, and England, and Wales. The aim of the paper is to assess the extent to which facial image comparison meets criteria of admissibility in these jurisdictions. The method used is a comparative evaluation of the methods of facial image comparison and their underlying premises against the range of admissibility criteria reported in court rulings and relevant judicial and scientific inquiries in the United States and the United Kingdom. While the techniques of facial image comparison are generally accepted within their practitioner communities, they are not tested, and their error rates are unknown. On that basis, the methods of facial image comparison would appear not to meet the anticipated standards. They are, nevertheless, admitted in court in the United States, and England, and Wales. This paper concludes that further research in science and law will be necessary to more definitively establish admissibility of facial image comparison evidence, as it will for other nascent and novel methods that are potentially influential in court proceedings.     

鉴定意见的审查判断问题

司法鉴定制度的改革不仅带来了司法鉴定体制的变化,而且促成了相关证据规则的完善。作为一种法定的证据种类,＂鉴定意见＂不再具有＂鉴定结论＂的效力,而要像其他证据一样,在证明力和证据能力方面经受法庭上的审查过程。违背法定的鉴定主体资格、鉴定程序、鉴真方法或鉴定文书的形式要件,鉴定人所提供的鉴定意见应被排除于法庭之外。有关鉴定意见的证据能力规则,不仅维护了法律程序的实施,而且可最大限度地增强该证据的证明力。从未来刑事证据法发展的角度来看,只有在宏观层面的司法体制和中观层面的鉴定程序方面发生实质性的变化,处于微观层面的鉴定证据规则才能有更大的制度空间。     

Forensic human identification in the United States and Canada: A review of the law, admissible techniques, and the legal implications of their application in forensic cases

Forensic human identification techniques are successful if they lead to positive personal identification. However, the strongest personal identification is of no use in the prosecution - or vindication - of an accused if the associated evidence and testimony is ruled inadmissible in a court of law. This review examines the U.S. and Canadian legal rulings regarding the admissibility of expert evidence and testimony, and subsequently explores four established methods of human identification (i.e., DNA profiling, forensic anthropology, forensic radiography, forensic odontology) and one complementary technique useful in determining identity, and the legal implications of their application in forensic cases.     

抓住机遇 迎接挑战 谋求发展——《刑诉法修正案（草案）》关于鉴定结论等问题的新变化

《刑事诉讼法修正案（草案）》将于2012年3月提交全国人大审议通过。其中对鉴定结论作了科学定位,对鉴定人出庭作证及拒不出庭的法律后果作出了有别于普通证人的明确规定。这是由鉴定证据的特殊性和鉴定人的特殊身份所决定的。这对司法鉴定机构及从业人员既是挑战,又是机遇;应当抓住机遇,迎接挑战,谋求发展。     

Asking the Gatekeepers: A National Survey of Judges on Judging Expert Evidence in a Post-Daubert World

Drawing on the responses provided by a survey of state court judges (N = 400), empirical evidence is presented with respect to judges' opinions about the Daubert criteria, their utility as decision-making guidelines, the level to which judges understand their scientific meaning, and how they might apply them when evaluating the admissibility of expert evidence. Proportionate stratified random sampling was used to obtain a representative sample of state court judges. Part I of the survey was a structured telephone interview (response rate of 71%) and in Part II, respondents had an option of completing the survey by telephone or receiving a questionnaire in the mail (response rate of 81%). Survey results demonstrate that judges overwhelmingly support the gatekeeping role as defined by Daubert, irrespective of the admissibility standard followed in their state. However, many of the judges surveyed lacked the scientific literacy seemingly necessitated by Daubert. Judges had the most difficulty operationalizing falsifiability and error rate, with only 5% of the respondents demonstrating a clear understanding of falsifiability and only 4% demonstrating a clear understanding of error rate. Although there was little consensus about the relative importance of the guidelines, judges attributed more weight to general acceptance as an admissibility criterion. Although most judges agreed that a distinction could be made between scientific and technical or otherwise specialized knowledge, the ability to apply the Daubert guidelines appeared to have little bearing on whether specific types of expert evidence were designated as science or nonscience. Moreover, judges' bench philosophy of science seemed to reflect the rhetoric, rather than the substance, of Daubert. Implications of these results for the evolving relationship between science and law and the ongoing debates about Frye, Daubert, Joiner, and Kumho are discussed.     

Error and its Meaning in Forensic Science

The discussion of “error” has gained momentum in forensic science in the wake of the Daubert guidelines and has intensified with the National Academy of Sciences' Report. Error has many different meanings, and too often, forensic practitioners themselves as well as the courts misunderstand scientific error and statistical error rates, often confusing them with practitioner error (or mistakes). Here, we present an overview of these concepts as they pertain to forensic science applications, discussing the difference between practitioner error (including mistakes), instrument error, statistical error, and method error. We urge forensic practitioners to ensure that potential sources of error and method limitations are understood and clearly communicated and advocate that the legal community be informed regarding the differences between interobserver errors, uncertainty, variation, and mistakes.     

中国刑事专家辅助人向专家证人的角色转变

中国的刑事专家辅助人具有既类似于律师又类似于鉴定人、证人的多重属性;围绕专家辅助人意见的性质,也形成了质证方式说、鉴定意见说、证人证言说等多种观点。角色定位上的混乱,不仅造成了独具特色的鉴定人与专家辅助人的双轨制,而且常常使专家辅助人意见的法庭采信陷入困境。从最高人民法院有关专家辅助人的新近规定看,专家辅助人的角色呈现出向专家证人转变的趋势。这种转变的核心要求,一是实现鉴定人和专家辅助人的诉讼地位平等,专家辅助人意见和鉴定意见在专家证言意义上的证据效力平等;二是使专家辅助人回归专家证人本色,将强加给专家辅助人的不合理的质证职责交还给律师、检察官;三是提高律师、检察官熟练运用交叉询问规则、对科学证据进行质证的能力,充分发挥法官的科学证据“守门人”作用,以适应事实认定科学化的需要。     

Kumho, Daubert, and the nature of scientific inquiry: implications for forensic anthropology

In the last 15 years, the US Supreme Court has implemented major changes concerning the admittance of expert testimony. In 1993, Daubert v. Merrell Dow Pharmaceuticals superseded the Frye ruling in federal courts and established judges, not the scientific community, as the gatekeepers regarding the credibility of scientific evidence. In 1999, a lesser-known but equally important decision, Kumho Tire v. Carmichael, ruled that technical expert testimony needed to employ the same rigor as outlined in Daubert, but experts can develop theories based on observations and apply such theories to the case before the court. Anthropology has never been defined as a hard science. Yet, many recent publications have modified existing techniques to meet the Daubert criteria, while none have discussed the significance of Kumho to anthropological testimony. This paper examines the impact of Daubert and Kumho on forensic anthropology and illustrates areas of anthropological testimony best admitted under Kumho's guidance.     

Bite Mark Analysis in Foodstuffs and Inanimate Objects and the Underlying Proofs for Validity and Judicial Acceptance

Even though one of the first bite mark cases was Doyle v. State in 1954 (a bitten cheese case), the research has focused on bite marks inflicted in human skin. As published Papers, Case Reports, or Technical Notes can constitute precedents which are relied upon in making the legal arguments and a considerable amount of case law exists in this area, we present a systematic review on bite mark analysis in foodstuffs and inanimate objects and their underlying proofs for validity and judicial acceptance according to Daubert rulings. Results showed that there is vulnerability in these procedures, and it is essential to demand for focus scrutiny on the known error rates when such evidence is presented in trials. These kinds of bite marks are well documented; however, there has been little research in this field knowing that the protocols of analysis and comparison are the responsibility of the forensic odontologists.     

Daubert,Cognitive Malingering,and Test Accuracy

Daubert v. Merrell Dow Pharmaceuticals (1993) held that trial judges should permit expert scientific testimony only when the reasoning or methodology underlying the testimony is scientifically valid, and ... properly can be applied to the facts in issue. Vallabhajosula and van Gorp (V&vG, 2001) have suggested that when the Daubert standard is applied to tests for malingered cognitive deficits, courts should deem admissible only results that meet this mathematical standard: assuming a pretest probability of .3, a positive score on the malingering test should yield a posttest probability of at least .8. This paper shows that V&vG's criterion may lead to misunderstandings about the kind of information malingering measures provide. After reviewing cases that have discussed both the Daubert decision and malingered cognitive deficits, this paper uses data from the Test of Memory Malingering (T. N. Tombaugh, 1996) to provide a general characterization of the mathematical properties of malingering measures. The paper then describes how pretest knowledge about malingering is combined with knowledge about a test's performance to generate a posttest probability of malingering. The results can help mental health experts respond to Daubert-inspired challenges to conclusions based on malingering measures.     

Psychological Injury and Law: Defining a Field

This article elaborates definitional and conceptual issues relevant to the field of psychological injury and law. It reviews the literature in the major areas that mark the field—law, forensic psychology, disability, and assessment/malingering. To meet admissibility requirements of testimony in court, psychologists and other mental health professionals need to maintain a comprehensive, impartial, and scientifically informed approach to assessments based on a state-of-the-art knowledge, such as made available in this journal.