Copyright (c) 2007 Drake University
Drake Law Review
NOTE: DAUBERT'S BIPOLAR TREATMENT OF SCIENTIFIC EXPERT TESTIMONY - FROM FRYE'S POLYGRAPH TO FARWELL'S BRAIN FINGERPRINTING
55 Drake L. Rev. 763
Megan J. Erickson*
American courts acknowledge "law lags science." 1 This is understandable in that science should not be tested in our legal adversarial system at the expense of individual liberty. However, this Note argues the appropriate lag is exaggerated by the legal profession's hostility toward, or ignorance of, sound scientific advances. This leads to inconsistent treatment of scientific expert testimony. The United States' adversarial legal system and professed faith in the jury system should by necessity assume a willingness to embrace scientific advances that will likewise advance justice. By responding instead with an unwillingness to consider and accept updated scientific findings, American courts persist in making two significant mistakes. First, and most obvious: by resisting scientific advances, courts keep new approaches from entering the courtroom. Second, and seemingly less noticed: by shutting out new approaches, courts sometimes cling to outdated scientific methods and allow flawed science to come into the courtroom. Keeping science at arm's length serves to hinder the introduction of sound evidence and perpetuate faulty scientific application. This no doubt encumbers, rather than advances, the interest of justice.
This Note will first briefly explain the development of expert testimony and scientific evidence in the American court system. From there, the Note considers the evolution of the polygraph, and focuses primarily upon two kinds of polygraph: the control question test (CQT) and the guilty knowledge test (GKT). This Note argues that, as opposed to the deficient CQT application, the GKT has been shown to be reliable and ...
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