Navigating Expert Reliability: are Criminal Standards of Certainty Being Left on the Dock?

Abstract

This article shows that, as to profferes of asserted expert testimony, civil defendants win their Daubert reliability challenges to plaintiff's profferes most of the time, and that criminal defendant's virtually always lose their reliability challenges to government proffers. And, when civil defendants' profferes are challenged by plaintiffs, those defendants uisually win, but when criminal defendants' proffers are challenged by the prosecution, the criminal defendants usually lose. The article then goes on to examine, in detail, various categories of expert proffers in criminal cases, including "syndrome evidence", polygraph, bite mark, handwriting, modus operandi, and eye witness weakness, to shed light on whether the system bias revealed in the statistical breakdown is illusory or real. Finally, an afterword analyzes the last year's cases, and makes observations on apparent trends.

JEL Classification: K40, K41, K45