22 Pages Posted: 14 Dec 2010
Date Written: December 13, 2010
The notion of "error" and "error rates" is central both to the Daubert opinion and to the recent National Academy of Sciences Report on the strengths and weaknesses of forensic science in the United States. As might be expected, the NAS Report does a better job of explaining the kinds of error it is concerned with than did the opinion in Daubert. However, to a greater or lesser degree, both fall short of a full consideration of the applicable concept of error, and so doing, they invite confusion about how inaccurate results in forensic science and criminal adjudication may occur, and who if anyone is to blame. This paper examines the notion of error as it might apply in these settings, with due regard to both the philosophical and scientific literature. It concludes that competing notions of normative and objective error have led to unnecessary miscommunication between practitioners of forensic disciplines and their critics, which has resulted in many forensic practitioners feeling unfairly criticized. This in turn has led some in the forensic science community, perhaps understandably, to resist changes in forensic practice that are necessary for the reduction of error in all its forms.
Keywords: Evidence, expert evidence, forensic science, criminal law, criminal procedure, law and science, litigation
Suggested Citation: Suggested Citation
Risinger, D. Michael, Whose Fault? - Daubert, the NAS Report, and the Notion of Error in Forensic Science (December 13, 2010). Fordham Urban Law Journal, Forthcoming. Available at SSRN: https://ssrn.com/abstract=1724935