The U.S. Revolution

AuthorAlan D. Gold
Chapter 2
The U.S. Revolution
   States the admissibility of expert evidence in federal courts
appeared to undergo a sea change in the nineties when the U.S. Supreme Court,
interpreting the Federal Rules of Evidence, mandated scientic validity as the
hallmark of expert testimony. It was in  in Daubert v. Merrell Dow Phar-
maceuticals that the Court settled the principles of admission of expert testi-
mony under the Federal Rules of Evidence (Rules  through ).
e Court implicitly adopted the foundational view that, as the physicist
Richard Feynman put it, science is what we have learned about how to keep
from fooling ourselves. Consequently, to be on solid epistemic ground, the
Court in Daubert expressly held that the law would accept as expert opinion
evidence only what good science would accept, and nothing less.Daubert held
as follow s:
 U.S.  () [Daubert].
A review of all t he briefs, motions, and amicus curiae briefs submitted to the cou rt in this
case strongly sug gests that the decision is prima rily based on the amicus brief submitted by
the Carnegie Com mission on Science, Technology, and Government as Amicus Curiae in
Support of Neither Party. . . . is i s the only brief that contains referenc e to the principle
of falsiabi lity, testability, and replication. It i s the suggested framework of th is brief as
a replacement for the Frye Rule that i s adopted by the Supreme Court in its decision”:
Ralph Underwager & Hol lida Wakeeld, “A Paradigm Shi for Ex pert Witnesses,”
online: w/Libra ry/Paradigm_ Shi.htm l.
    
“Science is not an encyclopedic body of knowledge about the un iverse. Instead,
it represents a process for proposing and rening theoretical explanations
about the world that are subject to further testin g and renement”. [Brief for
American Association for the Advancement of Science and the National Aca d-
emy of Sciences as Amici Curiae –] . . . But, in order to qualify as “scientic
knowledge,” an inference or assertion must be derived by the scientic method .
Proposed testi mony must be supported by appropr iate validation — i.e., “good
grounds,” based on what is known. In short , the requirement that an expert’s
testimony pertain to “scientic knowledge” establishes a standard of eviden-
tiary reliability.[FN]
[] We note that scientists typically distinguish bet ween “validity” (does the
principle support w hat it purports to show?) and “reli ability” (does applic ation
of the principle produce consistent results?). See Black, A Unied eory of
Scientic Evidence,  Ford. L. Rev. ,  ().
Faced with a proer of expert scientic testimony, then, the trial judge
must determine at the outset . . . whether the expert is proposing to testify to
() scientic knowledge that () will assist t he trier of fact to understand or de-
termine a fact in issue . . . . is entails a prelimi nary assessment of whether the
reasoning or methodology underlyi ng the testimony is scientically valid and
of whether that reasoning or methodology properly can be appl ied to the facts
in issue. We are condent that federal judges possess the capacity to u ndertake
this review. Many factors wil l bear on the inquiry, and we do not presume to
set out a denitive checklist or test. But some general obser vations are appro-
Ordinarily, a key question to be answered in determ ining whether a theory
or technique is scientic knowledge that wil l assist the trier of fact wi ll be
whether it can be (and has been) tested. “Scientic methodology today is ba sed
on generating hypotheses and testing t hem to see if they can be falsi ed; indeed,
this methodology is what di stinguishes science from other elds of human in-
quiry.” Green, at . See also C. Hempel, Philosophy of Natural Science 
() (“[T]he statements constituting a scientic explanation must be capable
of empirical test”); K. Popper, Conjectures and Refutations: e Growt h of
Scientic Knowledge  (th ed. ) (“[T]he criterion of the scientic status
of a theory is its falsi ability, or refutability, or testability ”). Another pertinent
consideration is whether the theory or technique has been subjected to peer
review and publication. Publicat ion (which is but one element of peer review)
is not a sine qua non of admissibil ity; it does not necessarily correlate with reli-

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