Battle of the Standards for Experts in Criminal Cases: Police vs. Psychologists

Expert testimony is an integral part of legal decision making. It informs judges and juries about a wide variety of topics. The assumption underlying its admission is that the average factfinder may lack enough knowledge about scientific or technical topics to make fully informed decisions in the absence of such testimony. Judges and juries are expected to be able to better understand these topics with the expert’s assistance. However, there is concern over exposing the factfinder to unreliable expert testimony in circumstances where the factfinder may erroneously place a great deal of weight on the testimony in their decision-making. Recent developments in the law regarding expert testimony have raised questions about how to limit the amount of unreliable expert testimony that is presented to the factfinders in order to prevent, as Professor Friedman puts it in his paper for this symposium, “jurors from being bamboozled by unreliable evidence.” Although these developments have theoretically altered the courts’ approach to expert testimony, significant questions, addressed by a number of papers in this symposium, still remain about whether the current approach attains an appropriate level of exclusion. For example, are admissibility standards too high or too low? In his paper, Professor Friedman advances a number of criticisms and suggestions about current expert testimony standards and practices. We take these comments as a launching point for our discussion and, as will become evident, address them from an