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 In 1993, Daubert v. Merrell Dow Pharmaceuticals superseded the Frye ruling in federal courts and established judges, not the scientific community, as the gatekeepers regarding the credibility of scientific evidence.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.     

The impact of Daubert: implications for testimony and research in forensic anthropology (and the use of frontal sinuses in personal identification)

This paper emphasizes the need for objectivity and standardized methodologies in the forensic sciences, particularly physical anthropology. To this end, a review of important events in scientific evidence admissibility law, particularly the standards set in the case of Daubert v. Merrell-Dow Pharmaceuticals, Inc., 1993, is presented. The method of confirming a putative identification by visual comparison of antemortem and postmortem frontal sinus radiographs is examined in light of current admissibility standards. The technique is revealed to have a number of shortcomings, including a lack of empirical testing, no estimates of potential error rates, no standards controlling the technique's operation, and no objective determination standards. These shortcomings may, in some instances, prevent resulting conclusions from being admissible evidence. It is suggested that some methods (including frontal sinus comparison) may require more rigorous testing in order to meet these new and stricter standards.     

The MCMI-III and the Daubert Standard: Separating Rhetoric from Reality

Law and Human Behavior -     

Police psychology: The influence of Daubert and its progeny

In the current legal atmosphere, any practicing professionals, including police psychologists, may expect to have their decisions challenged in court. If such a challenge is not met, it may have a disastrous financial and reputational impact for both the psychologist (and other expert consultant) and the employer or contractor by whom the psychologist has been retained. The rules for expert witness qualification throughout the nation have been very strongly effected by the introduction of the Federal Rules of Evidence in 1975 and subsequent case law, particularly theDaubert, Joiner, andKumho Tire Supreme Court decisions. This article examines the history of the development of theDaubert Standard and proposes principles for potential expert witnesses in order to minimize the likelihood of aversive consequences, such as disqualification or malpractice accusations. Authors' Note: Cary Rostow, Ph.D., is president of Matrix, Inc., Baton Rouge, Louisiana, and is in private practice in Baton Rouge. He holds a Diplomate in Police and Criminal Psychology from the Society for Police and Criminal Psychology. Robert Davis, Ph.D., is executive vicepresident and director of science, research, and development, for Matrix, Inc., and has a private practice in Baton Rouge, Louisiana. He holds a Diplomate from the Society for Police and Criminal Psychology. Judith Levy, Ph.D., is currently a postdoctoral fellow at Matrix, Inc.     

Communicating forensic scientific expertise: An analysis of expert reports and corresponding testimony in Tasmanian courts

Forensic criminology examines the use of forensic science in society. Justice can be hampered, for example, if the communication of forensic scientific findings is unclear or misleading, even if unintentionally. Although various recommendations guide the communication of forensic science, it is unclear whether they are reflected in practice. This study explored the communication of forensic biology in 10 cases of major crimes against the person heard in the Tasmanian Supreme Court, where the standard practice is to issue brief summary reports in the first instance. The content of expert reports and corresponding testimony was analysed to determine its adherence to recommendations outlined in standards, practice notes, and research. While reports were found to be very brief, testimony elaborated on all major elements. Mostly elicited by the prosecution, some elements were volunteered by expert witnesses, or raised by defence. Overall, expert evidence in courts—but not reports (due to the use of brief summary reports)—largely adhered to recommendations. Further research is needed to determine the prevalence and effectiveness of alternative approaches to communication that were identified in certain cases.     

The medical and scientific evidence in alleged tubocurarine poisonings. A review of the so-called Dr. X case

The problem of proving the presence or absence of a poison in a buried cadaver is the central theme of this presentation. Certain general questions are posed which may serve to guide those seeking to determine the cause of death in buried cadavers and allegedly due to a poison. Medicolegal and scientific evidence is presented from the court records of five deaths which were alleged homicides due to intravenous tubocurarine. As to the medical evidence: The prosecution claimed absence of adequate medical causes but full congruence with intravenous tubocurarine as the cause of death. The defense claimed and presented its evidence, including history, clinical picture, gross and microscopic pathological findings--for the deaths having occurred from competent natural causes in all but one case. In that one case the cause was undetermined. In two of the four cases evidence was presented for the mechanism of death and why they died at the time that they did. As to the forensic toxicological evidence: The prosecution claimed qualitative identification but with no particular quantitative detection or identification limits of tubocurarine in the remains based on results of combinations of HPLC followed by RIA and of some selected ion direct inlet mass spectrometry. The defense corroborated--along with a quantitative estimate--the presence of a substantial concentration of tubocurarine in the liver specimen of one case. However the chain of custody of this particular specimen was compromised for a period of several days between post-exhumation autopsy and submission to the prosecution toxicologists. With respect to all the other specimens examined by the defense, direct inlet mass spectrometry failed to show ions which are critical for establishing the identity of tubocurarine. The defense also presented results of experiments which showed that the tissues of the cases in question destroyed tubocurarine at such a rate that no reasonably conceivable administered amount could have survived the 10 years of burial of these cases. In each of the five cases exhumation and re-autopsy would have been found to be neither justified nor even indicated had an objective examination of the available record been made and supplemented by a similarly objective review of the literature and the simple stability experiments used by the defense. After an 8-month trial, the jury brought in a not guilty verdict on all counts after less than 2 h of deliberations.     

The Millon Clinical Inventories,Research Critical of Their Forensic Application,and Daubert Criteria

Law and Human Behavior -     

Psychopathy,expert testimony,and indeterminate sentences: Exploring the relationship between Psychopathy Checklist‐Revised testimony and trial outcome in Canada

Purpose. Psychopathy, as measured by the Hare Psychopathy Checklist‐Revised (PCL‐R), has the potential to inform judges attempting to preventatively detain Canada's highest risk offenders. However, studies examining the stigma of the psychopathy label give reason to exercise caution when expert witnesses introduce PCL‐R scores into their testimony. Methods. Judges' written or oral judgments were gathered from a publically available database in Canada. Dangerous offender hearings (N = 136) were examined to determine how factors within expert witness testimony were related to sentences of indeterminate or determinate length. Results. Results show a trend for PCL‐R scores to be related to trial outcome. Specifically, psychopathy diagnoses were correlated to experts' ratings of treatment amenability which were in turn related to trial outcome. In addition, experts tended to show partisan allegiance in the way they scored offenders on the PCL‐R. Conclusion. Discussion advocates a measure of caution when using PCL‐R testimony in an adversarial court context. Further research clarifying the role psychopathy plays in court decisions is also encouraged.     

A soft-tissue calcification: differential diagnosis and pathogenesis

An autopsy of a 72-year-old white male revealed a 30.5 x 5.1 cm vertically aligned heterotopic ossification just deep to a 30.5 cm midline abdominal scar. The ossified mass was determined to be a heterotopic ossification or myostitis ossificans (MO) traumatica resulting from an abdominal surgical incision during life. While, MO traumatica is relatively common accounting for roughly 60-75% of patients with soft-tissue ossification, heterotopic ossification of abdominal incisions are relatively rare and thus infrequently reported. This article details the manifestation of this relatively large heterotopic bone and provides a comprehensive review of the literature and pathogenesis of this unusual ossification. A review of the English literature from 1920 to the present produced only a handful of articles for a total of 185 reported cases. All had bone formed within vertical incisions, usually within 1 year of surgery, and 89% were males. Knowledge of this phenomenon and the variable size at presentation is useful to both the autopsy pathologist and the anthropologist in generating a diagnosis for abnormal calcifications.