Pathological Science? Demonstrable Reliability and Expert Forensic Pathology Evidence

Abstract

This paper is focused on jurisprudence and admissibility standards pertaining to expert evidence. Informed by recent theoretical and empirical approaches from the history, sociology, and anthropology of science and medicine, it suggests that judges should impose an explicit reliability standard on expert evidence adduced by the state. The basic contention is that courts should not admit expert evidence adduced by the prosecution unless there are good grounds for believing that the evidence is reliable. Expressed more precisely, judges should not admit expert evidence adduced by the prosecution unless that evidence is demonstrably reliable. This would require the state to demonstrate, on the balance of probabilities, that the techniques and theories used by its experts and the opinions they present in court are reliable. In practice, the state would be expected to undertake some kind of empirical testing to ascertain whether the techniques and theories relied upon by forensic scientists, pathologists, and technicians are valid and reliable. In the absence of testing, judges might consider a range of supplementary, and usually weaker, indicia of reliability to determine whether the evidence is sufficiently reliable for use in a criminal trial.

Keywords: Evidence