How Good is Good Enough?: Expert Evidence Under Daubert and Kuhmo

Abstract

This essay replies to Professor Edward Imwinkelried's suggestion that our treatise, "Modern Scientific Evidence," supports a "best evidence" rule with respect to expert witnesses that would radically reshape admissibility decisions under the Federal Rules of Evidence. We agree that such a rule would be a mistake and did not propose such a rule. We do support what could be called a "better evidence" principle. We believe that in a number of ways, the courts already have adopted this principle and that, by and large, they have used it wisely. They have not used the principle to create impossible burdens for parties who could not under any circumstances produce better evidence. On the other hand, they have used the principle to restrict expert testimony when better evidence is reasonably available. We explain how a better evidence principle promises to produce certain beneficial effects.