The Ultimate Opinion Rule and Forensic Science Identification

Jurimetrics: The Journal of Law, Science and Technology Vol. 60, No. 2, Winter 2020

13 Pages Posted: 18 Nov 2019

See all articles by David H. Kaye

David H. Kaye

The Pennsylvania State University (University Park) – Penn State Law; Arizona State University - Sandra Day O'Connor College of Law - School of Life Science

Date Written: November 7, 2019

Abstract

For decades, scientists, statisticians, psychologists, and lawyers have urged forensic scientists who compare handwriting, fingerprints, fibers, electronic recordings, shoeprints, toolmarks, soil, glass fragments, paint chips, and other items to change their ways. At last it seems that “[t]he traditional assumption that items like fingerprints and toolmarks have unique patterns that allow experts to accurately determine their source . . . is being replaced by a new logic of forensic reporting.” With the dissemination of “probabilistic genotyping” software that generates “likelihood ratios” for DNA evidence, the logic is making its way into US courts.

Recently, the Justice Department’s Senior Advisor on Forensic Science commented on a connection between prominent statements endorsing the new logic and an old rule of evidence concerning “ultimate issues.” He suggested that “some people . . . would like to pretend that [Federal Rule of Evidence 704] doesn't exist, but it actually goes against that school of thought.” This essay considers the nexus between Rule 704 and forensic-science testimony, old and new. It concludes that the rule does not apply to all source attributions, and even when it does apply, it supplies no reason to admit them over likelihood statements. In ruling on objections to traditional source attributions buttressed by the many calls for evidence-centric presentations, courts would be remiss to think that Rule 704 favors either school of thought.

Keywords: evidence, forensic science, identification, expert opinions, ultimate issues, Rule 704, likelihoods, individualization, probability

Suggested Citation

Kaye, David H., The Ultimate Opinion Rule and Forensic Science Identification (November 7, 2019). Jurimetrics: The Journal of Law, Science and Technology Vol. 60, No. 2, Winter 2020. Available at SSRN: https://ssrn.com/abstract=3483226 or http://dx.doi.org/10.2139/ssrn.3483226

David H. Kaye (Contact Author)

The Pennsylvania State University (University Park) – Penn State Law

Lewis Katz Building
University Park, PA 16802
United States

HOME PAGE: http://www.personal.psu.edu/dhk3/index.htm

Arizona State University - Sandra Day O'Connor College of Law - School of Life Science ( email )

111 E Taylor St.
Phoenix, AZ 85004
United States

HOME PAGE: http://www.personal.psu.edu/dhk3/index.htm

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