Expert Testimony in Criminal Proceedings: Questions Daubert Does Not Answer

I strongly believe that we need a very stringent standard of proof in criminal cases. I do not think, however, that Daubert v. Merrell Dow Pharmaceuticals, Inc. has been productive in effectuating this goal. In civil cases, courts engage in rigorous gatekeeping and often exclude plaintiffs’ experts because the theory underlying their testimony has not been adequately validated. But I see no sign of a parallel approach in criminal cases even when there are problems with the assumptions on which the prosecution’s expert testimony rests. I do not think, however, that more stringent attention to the reasoning of Daubert would greatly improve matters. Daubert overemphasizes how the data underlying the expert’s opinion was produced and distracts courts and counsel from carefully analyzing what the evidence proves, and how it is being used. Daubert stresses the medium over the message. In criminal cases, Daubert may therefore be counterproductive by diverting attention from other evidentiary principles that should be considered in handling expert proof. I reached these conclusions after looking at expert testimony dealing with forensic identification, the field that encompasses a group of markedly different techniques that have in common the objective of matching a sample associated with the defendant (or victim) to a sample found at the crime scene. I limited myself to