Scientific techniques, court acceptance

Court Acceptance of Scientific Techniques. There continue to be problems over the admissability of new scientific tests and procedures in court. Basically, judges still employ the criteria used in Frye vs. United States 293 F. 1013 (D.C. Cir. 1923), which required that new tests must gain general scientific acceptance before they can be admitted into court. While there is no fundamental problem with such criteria, difficulties do arise when an individual scientist or expert presents information to a single judge or court. Quite apart from the test itself,... 

The Federal Rules of Evidence (ERE) were adopted in 1975. Subsequently most states (at least 37) have adopted their own codified rules of evidence modeled closely on the FRE. For scientific evidence, the most relevant of the Rules are found in Article VII of the FRE in a section known as Opinions and Expert Testimony. Prior to 1993, some federal appellate courts had applied Rule 702 of the Federal Rules of Evidence to medical and scientific experts. (Rule 702 authorizes scientific testimony whenever it will assist the trier of fact to understand the evidence or to determine a fact in issue.) In 1993, in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 US 579, the Supreme Court of the United States issued an important interpretation of Rule 702. Seven of the nine justices ruled that judges must serve as evidentiary gatekeepers who determine whether proffered evidence is scientifically valid and relevant. The Court suggested several factors for judges to consider in determining whether to admit a particular theory or technique Is the theory or hypothesis testable Has it been tested Has the theory or technique been subjected to peer review and publication For a particular scientific technique or methodology, what is the known or potential rate of error What (if any) are the standards that control the technique s operation To what extent is the theory or technique generally accepted in the scientific community ... 

Judicial decisions in nonregulatory contexts such as toxic tort and product liability suits are likewise inconsistent in their consideration of the linear, no threshold model. As in the regulatory context, most cases find no problem with an expert s reliance on a risk assessment using the linear model. In a handful of cases, however, the court rejects reliance on a linear dose-response assumption. Eor example, one court in addressing the cancer risks from a low concentration of benzene in Perrier held that there is no scientific evidence that the linear no-safe threshold analysis is an acceptable scientific technique used by experts in determining causation in an individual instance (Sutera 1997). Another court decision concluded that [t]he linear non-threshold model cannot be falsified, nor can it be validated. To the extent that it has been subjected to peer review and publication, it has been rejected by the overwhelming majority of the scientific community. It has no known or potential rate of error. It is merely an hypothesis (Whiting 1995). The inconsistency and unpredictability of judicial review of risk assessments adds an additional element of uncertainty into the risk assessment process. 

The courts have held that scientific methods of analysis are acceptable in the courts if the techniques used have general acceptance in the scientific community (Frye v. U.S.) (4). The ink identification technique satisfies these criteria because all of the methods used to analyze inks are well established and proven analytical tools and this point has been conceded by experts for the defense in several cases. 

Critics of Frye, however, maintain that the scope of application of the general acceptance standard is severely limited in many states. These critics argue that Frye applies (and often is applied) only to novel theories and techniques of hard science , and does not permit scrutiny of traditional techniques, soft science , and nonscientific expertise. By contrast, most Daubert Courts are compelled to examine all types of expert testimony, especially after Kumho made it clear that whether the proponent characterizes the proffered expertise as scientific, technical, or specialized, the proponent nevertheless must make a showing of the reliability of the expertise. 

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