34 Pages Posted: 20 Dec 2009 Last revised: 25 Jan 2010
Date Written: July 29, 2009
The rapid development of emerging scientific methods, especially the increased understanding of deoxyribonucleic acid ("DNA"), has had, and will undoubtedly continue to have, an almost stunning impact on our justice system, particularly at the trial level. The forensic applications of these new scientific discoveries have been most dramatically seen in the criminal trial court. They have also caused us to re-examine other forms of forensic evidence that have been rather routinely admitted in our courts. Forensic evidence from social scientists is certainly one of those forms. Which of these forms of scientific forensic evidence have sufficient validity to be used in a criminal proceeding that could take away a person's liberty or even their life? Who answers that question and how?
The Supreme Court of the United States has decided, first in the Frye case and then later in the Daubert trilogy of cases, that it is the trial judge who must decide these issues and be the "gatekeeper" who will determine which forms of scientific forensic evidence "get in" to the jury's consideration. The first part of this article defines and explores that expanded gatekeeper role, as it continues to be a task of increasing onus to trial judges. The next part considers the implementation of that gatekeeper role as it is applied to criminal proceedings. The third part of this article narrows the inquiry specifically the issue of the applicability of the Daubert, and even Frye, analysis to the admissibility of social science evidence generally. Finally, the article examines specific questions regarding testimony of experts about the reliability of eyewitness evidence and regarding the continued admissibility of certain types of forensic abuse syndrome evidence.
Keywords: evidence, criminal law, social science evidence
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