Another Look at Daubert

Barbara P. Billauer, Institute of World Politics & Foundation for Law and Science Centers, Inc., has published Daubert Debunked: A History of Legal Retrogression and the Need to Redefine 'Science' in Law. Here is the abstract.

With ‘novel’ scientific discoveries accelerating at an unrelenting pace, the need for accessible and implementable standards for evaluating the legal admissibility of scientific evidence becomes more and more crucial. As science changes, legal standards for evaluating ‘novel’ science must be plastic enough to respond to fast-moving changes. This, ostensibly, was the Daubert objective. Since it was decided in 1993, however, Daubert’s impact has been hotly contested – with plaintiffs and defendants each claiming the decision unfairly favors the other side. New approaches are constantly suggested to deal with the perceived impact, although there is no uniform consensus of exactly what that impact is. Without accurate and demonstrable evidence of Daubert’s effect, however, the current ad hoc approach of suggesting new gatekeeping methods – is at best blind, and at worst, a partisan attempt to manipulate judicial decision-making. This article reports on a retrospective review of data regarding the impact of Daubert on admissibility of scientific evidence, for the first time – via a simple statistical perspective. This method confirms other assessments (using different methodologies) that (allowing for short-term corrections post-Daubert), there is no difference in outcome whether Frye or Daubert tests are used. Given that entirely different standards were used in both cases – yet yield similar results – one must acknowledge the possibility that both tests are ‘scientifically’ flawed. Further, empirical evidence and academic research agree that judges now substitute their own mechanisms for evaluating scientific evidence, in some cases applying neither Daubert nor the pre-existing Frye test. The reasons are unclear – perhaps due to an instinctual aversion to the muddied or flawed standards enunciated in both. Nevertheless, it does appear that judges are uncomfortable understanding several Daubert tests, including the ‘falsification’ criterion, which is the foundation stone of the Daubert analysis. Via re-analysis of the Rand study of 2001 which examined effects of Daubert, this research further highlights the scientific/mathematical illiteracy of the current legal community (especially, as I demonstrate, compared to judges pre-Frye). This situation presents a major obstacle for devising a workable method for judicial gatekeeping of scientific evidence. Ultimately, however, lawyers and scientists must first agree what ‘science’ is before better methods of evaluating proffered evidence can be devised. It is suggested that lawyers turn to scientists who developed the scientific method as it applies to the science of the courtroom: biology, chemistry and simple physics to enlighten themselves – substituting these approaches for the flawed and faulty premises advocated by Daubert and Frye.

Download the article from SSRN at the link.