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 In 1993, Daubert v. Merrell Dow Pharmaceuticals superseded the Frye ruling in federal courts and established judges, not the scientific community, as the gatekeepers regarding the credibility of scientific evidence.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

Meeting a Forensic Podiatry Admissibility Challenge: A Daubert Case Study

This article is an introduction to the United States Supreme Court's standard of admissibility of forensic evidence and testimony at trial, known as the Daubert standard, with emphasis on how this standard applies to the field of forensic podiatry. The author, a forensic podiatrist, provided law enforcement with evidence tying a bloody sock‐clad footprint found at the scene of a homicide to the suspect. In 2014, the author testified at a pretrial hearing, known as “a Daubert hearing,” to address the admissibility of this evidence in court. This was the first instance of forensic podiatry being the primary subject of a Daubert hearing. The hearing resulted in the court ordering this evidence admissible. The expert's testimony contributed to the suspect's conviction. This article serves as a reference for forensic podiatrists and experts in similar fields that involve impression evidence, providing evidentiary standards and their impact on expert evidence and testimony.     

Fragment analysis in forensic anthropology

Anthropological analysis of fragmentary evidence can be challenging but diverse methods allow substantial information to be gleaned. Scanning electron microscopy/energy dispersive X-ray spectroscopy enables determination if bone and/or tooth tissue is present. Protein radioimmunoassay or DNA analysis can establish the species present. Histological analysis can assist in species determination and reveal information about thermal changes. Radiocarbon analysis with special reference to the modern bomb-curve can clarify the postmortem interval. Anthropologists should also be aware that DNA analysis not only can enable positive identification but assist in the evaluation of sex and age at death.     

In search of identity: The field of forensic anthropology in Brazil—Profession and practice

The existing divergencies in the development of forensic anthropology (FA) around the world justify an analysis of its situation in each country/region. Our objective is to report information gathered directly from professionals acting in the field of forensic anthropology in Brazil, with the aim of highlighting the challenges of the discipline and contributing to its advancement. The research consisted of personal visits in Medico‐Legal Institutes (IMLs) in nine states of the country and semi‐structured interviews with 16 professionals. Detailed analysis of the Results suggests the field of forensic anthropology, despite the engagement and dedication of its professionals, cannot yet be considered a well‐structured discipline across the country. The academic background of professionals is highly heterogenous. The applied methods vary, and common protocol is not always followed. The demand highly exceeds the available human resources. The lack of comparative material Results in high percentage of cases remaining unsolved. Important divergences exist in terms of infrastructure and professional resources between the states. The limited cooperation between different IMLs and between different sections of the same IML—together with a general disbelief in the usefulness of anthropological examination in forensic cases—hampers FA’s development. There is a great openness for scientific collaboration and an abundance of material for research. Our research demonstrated structural, political, and academic limitations that affect the FA field in Brazil. However, the expertise and dedication of professionals point to human potential as the chief strength of this discipline that supports and enables research, providing high‐quality services in a challenging context.     

Issues in the global applications of methodology in forensic anthropology

The project and research reported in this collection of articles follows a long-term historical pattern in forensic anthropology in which new case work and applications reveal methodological issues that need to be addressed. Forensic anthropological analysis in the area of the former Yugoslavia led to questions raised regarding the applicability of methods developed from samples in other regions. The subsequently organized project reveals that such differences exist and new methodology and data are presented to facilitate applications in the Balkan area. The effort illustrates how case applications and court testimony can stimulate research advances. The articles also serve as a model for the improvement of methodology available for global applications.     

CT技术在法医人类学研究中应用的进展

近年来,将计算机断层扫描(CT)等影像学新技术应用于法医人类学个体识别的研究受到国内外法医人类学家的重视。CT具有清晰快速的成像能力以及强大的后处理功能,无需骨骼前处理就能提供高分辨率模型图像,对法医人类学具有重要的研究和应用价值。本文就CT技术在法医人类学研究中应用的进展进行综述,以期为相关研究和实践提供参考和借鉴。     

CT在法医人类学中的应用与展望

计算机X线断层摄影术具有分辨率高、成像清晰、可进行三维重建等优点,对骨骼和牙齿的成像效果较好。近十年来,国外有学者将其用于推断年龄和身高,判定种族和性别,在相关文献中介绍了有关的研究方法和数据,并对这些方法和数据在法医人类学个体识别中的应用价值进行了客观的评估。笔者对近几年发表的部分文献进行综述,希望能够为法医人类学科研和办案提供新的方法和思路。     

舌骨的法医人类学研究

目的建立利用舌骨形态测量值判别性别的方法,并探讨其在法医学应用中的价值。方法对于河北地区收集的108例舌骨样本(男78例,女30例)进行观察研究,确立11个观测指标并进行测量,测量值采用SPSS统计软件进行统计学分析,建立利用舌骨形态测量值判别性别的方程,并进行Fisher判别分析。结果在11项观察指标中,8项测量指标男女性别间存在显著性统计学差异(P<0.01);利用8项测量指标中的任一指标或之中的多个指标组合建立线性性别判别方程,方程判别性别的准确率在66%～92%,其中多指标的方程判别性别准确率较单一指标的方程高,最高达到92%。结论舌骨形态存在着性别差异,利用多个舌骨形态学测量值建立的性别判别方程准确率较高,可用于无名尸骨的性别判别。     

Evaluating expertise in forensic anthropology

The medicolegal system relies on the ability of experts and non-experts alike to make judgments about expertise and use those judgments to reach consequential decisions. Given the lack of standard criteria, mandatory certification, or licensure for establishing expertise required to practice forensic anthropology and testify as an expert witness, we sought to understand how individuals assess and identify expertise in forensic anthropology by using a social science tool called the Imitation Game. This tool assesses immersion in a specific area of study via discourse, with the premise that some individuals lacking expertise themselves imitate or attempt to pass as experts. For this project we recruited volunteers with varying expertise in forensic anthropology to participate in interviews which asked questions about the practice and structure of the discipline. Those interviews were transcribed, anonymized, and evaluated by other recruited individuals with varying expertise in forensic anthropology. Results found that judges who were experts in forensic anthropology performed better than non-expert judges in determining who was not an expert in forensic anthropology based on their anonymized responses; however, nearly half of the non-experts were still able to pass as experts in forensic anthropology. The difficulties in assessing expertise based on discourse interactions demonstrates the value and need for well-defined credentials and mandatory certification to practice forensic anthropology. This study demonstrates that accurately identifying expertise in forensic anthropology may be challenging for both experts and non-experts, especially when relying solely on interactional expertise rather than formal assessments of competency which directly elucidate contributory expertise.     

Forensic identification science evidence since Daubert: Part II--judicial reasoning in decisions to exclude forensic identification evidence on grounds of reliability

Many studies regarding the legal status of forensic science have relied on the U.S. Supreme Court's mandate in Daubert v. Merrell Dow Pharmaceuticals Inc., and its progeny in order to make subsequent recommendations or rebuttals. This paper focuses on a more pragmatic approach to analyzing forensic science's immediate deficiencies by considering a qualitative analysis of actual judicial reasoning where forensic identification evidence has been excluded on reliability grounds since the Daubert precedent. Reliance on general acceptance is becoming insufficient as proof of the admissibility of forensic evidence. The citation of unfounded statistics, error rates and certainties, a failure to document the analytical process or follow standardized procedures, and the existence of observe bias represent some of the concerns that have lead to the exclusion or limitation of forensic identification evidence. Analysis of these reasons may serve to refocus forensic practitioners' testimony, resources, and research toward rectifying shortfalls in these areas.     

Forensic identification science evidence since Daubert: Part I--A quantitative analysis of the exclusion of forensic identification science evidence

The U.S. Supreme Court decisions in Daubert v. Merrell Dow Pharmaceuticals Inc. and Kumho Tire Co. Ltd. v. Carmichael transformed the way scientific expert evidence was reviewed in courts across the United States. To gauge the impact of these rulings on the admission of forensic identification evidence, the authors analyzed 548 judicial opinions from cases where admission of such evidence was challenged. Eighty-one cases (15%) involved exclusion or limitation of identification evidence, with 50 (65.7%) of these failing to meet the "reliability" threshold. This was largely because of a failure to demonstrate a sufficient scientific foundation for either the technique (27 cases) or the expert's conclusions (17 cases). The incidence of exclusion/limitation because of a lack of demonstrable reliability suggests that there is a continuing need for the forensic sciences to pursue research validating their underlying theories and techniques of identification to ensure their continued acceptance by the courts.     

Y-SNP在法庭科学中的应用

本文介绍了Y-SNP的遗传特性、在世界特别是在东亚人群中的分布特点,以及在法庭科学中应用的研究做一综述,旨在利用现场罪犯遗留生物学检材的Y-SNP检测来推测其人种或地理来源,为案件调查提供帮助.     

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.     

Sex estimation in forensic anthropology: skull versus postcranial elements

When the pelvis is unavailable, the skull is widely considered the second best indicator of sex. The goals of this research are to provide an objective hierarchy of sexing effectiveness of cranial and postcranial elements and to test the widespread notion that the skull is superior to postcranial bones. We constructed both univariate and multivariate discriminant models using data from the Forensic Anthropology Data Bank. Discriminating effectiveness was assessed by cross-validated classification, and in the case of multivariate models, Mahalanobis D(2). The results clearly indicate that most postcranial elements outperform the skull in estimating sex. It is possible to correctly sex 88-90% of individuals with joint size, up to 94% with multivariate models of the postcranial bones. The best models for the cranium do not exceed 90%. We conclude that postcranial elements are to be preferred to the cranium for estimating sex when the pelvis is unavailable.     

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。     

Metric forensic anthropology decisions: Reliability and biasability of sectioning-point-based sex estimates

Subjective decisions make human cognitive processes more susceptible to bias and error. Specifically, research indicates that additional context biases forensic anthropologists’ morphological analyses. To address whether metric analyses are also subject to bias, we conducted a pilot study in which 52 experienced osteologists measured a difficult-to-classify human femur, with or without additional contextual information. Using a metric sectioning-point sex-estimation method, participants provided a sex estimate for individual skeletal element(s) and, when given multiple elements, the combined skeletal assemblage. Control group participants (n = 24) measured only the femur. In addition to the femur, bias group participants (n = 28) either measured a female humerus and viewed a female-biasing photograph (n = 14) or measured a male humerus and viewed a male-biasing photograph (n = 14). We explored whether the experts in the different groups would differ in: (1) femoral measurements; (2) femoral sex-estimation conclusions; and (3) final sex-estimation conclusions for the skeletal assemblage. Although the femoral measurements and femoral sex estimates were comparable across groups, the overall sex estimates in the female-biased group were impacted by contextual information—differing from both the control and male-biased groups (p < 0.001). Our results demonstrate that cognitive bias can occur even in metric sex-estimation conclusions. Specifically, this occurred when the metric data and single-element sex estimates were synthesized into an overall estimate. Thus, our results suggest that metric methods are most vulnerable to bias when data are synthesized into an overall conclusion, highlighting the need for bias countermeasures and comprehensive statistical frameworks for synthesizing metric data to mitigate the effects of cognitive bias.     

身高推断的法医人类学研究进展

身高属于个体识别的重要指标之一,历来是法医人类学研究的重点和热点。近几年国内外对于身高推断的研究又有新进展。笔者主要对近六年来国内外学术界发表的相关文献进行查阅,并精选具有代表性的文献进行综述,发现主要有以下新的研究进展和趋势:(1)随着人类平均身高的不断增长,原有身高推断方程有不断更新修正的需要;(2)性别、年龄、人种、地域等因素对身高推断影响大,设计实验研究方案时应考虑加入上述因素;(3)医学影像学技术,特别是CT技术成为近年来法医人类学身高推断研究的新方法。     

法医骨学推断计算机专家系统的开发研究

目的构建计算机法医骨学推断专家系统。方法利用面向对象的方法,综合现有法医人类学统计资料,系统结合了模糊匹配和DS证据理论两种推理手段,使用融合了框架和产生式的知识表示方法进行专家系统构建。结果开发出具有开放知识库、可操作性强的法医骨学性别、年龄、身高推断软件。结论本系统具有较大的可信度和有效性,能够很好的辅助法医技术人员开展工作。