Questioning Forensic Evidence

That's the title of a column in National Law Journal written by UC-Davis Law prof Edward J. Imwinkelried.  It's subtitled, "A recently released NAS report raises a host of issues."

The July 28, 2008, edition of this column highlighted a pending U.S. Supreme Court case, Melen­dez-Diaz v. Massachusetts, No. 07-591, which may have a major impact on the admissibility of expert testimony in federal court, especially in criminal cases. Of course, judicial decisions are not the only developments that can affect the future of expert testimony. In February of this year, the National Research Council of the National Academies of Science (NAS) released a long-awaited report, Strengthening Forensic Science in the United States: A Path Forward. Like the decision in Melendez-Diaz, that report could play a major rule in shaping the future treatment of expert evidence.

And:

It is far too early to make any confident predictions about the eventual impact of the NAS report. The proposal for the NIFS may prove to be only wishful thinking. Likewise, it is possible that the report will have little or no impact on the courts' treatment of expert testimony. After all, Federal Rule of Evidence 702 is worded in the alternative: "scientific, technical or other specialized knowledge." That statutory language permits the proponent to argue that, even if the expert's technique falls short of qualifying as "scientific...knowledge," the judge should characterize the testimony as "technical" evidence and use a relaxed admissibility standard.

The Supreme Court's 1999 decision in Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137 (1999), seems to foreclose that approach in federal court. However, the states remain free to interpret their version of Rule 702 in a different manner. E.g., State v. Fukusaku, 946 P.2d 32 (Hawaii 1997). The upshot is that the path forward may be neither straight nor short.

Earlier coverage of the NAS report is here.