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Copyright (c) 2004 Pepperdine University School of Law
Pepperdine Law Review

ARTICLE: The Impact of Daubert on Forensic Science*


31 Pepp. L. Rev. 323


Henry F. Fradella**, Lauren O'Neill***, Adam Fogarty****


I. Introduction
Starting in the mid-1980s and continuing, in increasing force, through the 1990s, scholars began to vocally protest the ways in which highly questionable "expert testimony" was routinely admitted into evidence in the courts of the United States. 1 Peter Huber 2 offered one of the most powerful arguments that "the kind of expertise regularly accepted as admissible by courts was, frankly, "junk' of scandalous lack of dependability." 3 To address the problem of "junk science" in the courtroom, the United States Supreme Court decided Daubert v. Merrell Dow Pharmaceuticals, Inc. 4 in 1993. In it, the Court set forth a new standard for determining the admissibility of scientific evidence in the federal courts of the U.S. 5 And, since the time Daubert was decided, subsequent decisions of the Supreme Court have extended Daubert's application to all expert testimony, not just that which is technically "scientific." 6 The impact of Daubert, however, is not limited to federal courts since many states have also adopted the Daubert test for the admissibility of expert testimony. 7

Since the time Daubert was decided, both courts and legal commentators have voiced concerns that Daubert's focus on empirical testability, scientific falsifiability, and reliability and validity (including an assessment of error rates) may pose serious problems for expert testimony in the forensic sciences. 8 The present study examines how Daubert has been applied to cases in the post-Kumho era in which expert testimony concerning forensic science has been offered ...
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