William J. Lewinski, a psychologist who has studied police shootings, held a training session at the Association for Los Angeles Deputy Sheriffs in Monterey Park, Calif., last month. Credit Michal Czerwonka for The New York Times

WASHINGTON — The shooting looked bad. But that is when the professor is at his best. A black motorist, pulled to the side of the road for a turn-signal violation, had stuffed his hand into his pocket. The white officer yelled for him to take it out. When the driver started to comply, the officer shot him dead.

The driver was unarmed.

Taking the stand at a public inquest, William J. Lewinski, the psychology professor, explained that the officer had no choice but to act.

“In simple terms,” the district attorney in Portland, Ore., asked, “if I see the gun, I’m dead?”

“In simple terms, that’s it,” Dr. Lewinski replied.

When police officers shoot people under questionable circumstances, Dr. Lewinski is often there to defend their actions. Among the most influential voices on the subject, he has testified in or consulted in nearly 200 cases over the last decade or so and has helped justify countless shootings around the country.

His conclusions are consistent: The officer acted appropriately, even when shooting an unarmed person. Even when shooting someone in the back. Even when witness testimony, forensic evidence or video footage contradicts the officer’s story.

He has appeared as an expert witness in criminal trials, civil cases and disciplinary hearings, and before grand juries, where such testimony is given in secret and goes unchallenged. In addition, his company, the Force Science Institute, has trained tens of thousands of police officers on how to think differently about police shootings that might appear excessive.

A string of deadly police encounters in Ferguson, Mo.; North Charleston, S.C.; and most recently in Cincinnati, has prompted a national reconsideration of how officers use force and provoked calls for them to slow down and defuse conflicts. But the debate has also left many police officers feeling unfairly maligned and suspicious of new policies that they say could put them at risk. Dr. Lewinski says his research clearly shows that officers often cannot wait to act.

“We’re telling officers, ‘Look for cover and then read the threat,’ ” he told a class of Los Angeles County deputy sheriffs recently. “Sorry, too damn late.”

A former Minnesota State professor, he says his testimony and training are based on hard science, but his research has been roundly criticized by experts. An editor for The American Journal of Psychology called his work “pseudoscience.” The Justice Department denounced his findings as “lacking in both foundation and reliability.” Civil rights lawyers say he is selling dangerous ideas.

An Expert on the Stand

While his testimony at times has proved insufficient to persuade a jury, his record includes many high-profile wins.

“He won’t give an inch on cross-examination,” said Elden Rosenthal, a lawyer who represented the family of James Jahar Perez, the man killed in the 2004 Portland shooting. In that case, Dr. Lewinski also testified before the grand jury, which brought no charges. Defense lawyers like Dr. Lewinski, Mr. Rosenthal said. “They know that he’s battle-hardened in the courtroom, so you know exactly what you’re getting.”

Dr. Lewinski, 70, is affable and confident in his research, but not so polished as to sound like a salesman. In testimony on the stand, for which he charges nearly $1,000 an hour, he offers winding answers to questions and seldom appears flustered. He sprinkles scientific explanations with sports analogies.

“A batter can’t wait for a ball to cross home plate before deciding whether that’s something to swing at,” he told the Los Angeles deputy sheriffs. “Make sense? Officers have to make a prediction based on cues.”

Of course, it follows that batters will sometimes swing at bad pitches, and that officers will sometimes shoot unarmed people.

Much of the criticism of his work, Dr. Lewinski said, amounts to politics. In 2012, for example, just seven months after the Justice Department excoriated him and his methods, department officials paid him $55,000 to help defend a federal drug agent who shot and killed an unarmed 18-year-old in California. Then last year, as part of a settlement over excessive force in the Seattle Police Department, the Justice Department endorsed sending officers to Mr. Lewinski for training. And in January, he was paid $15,000 to train federal marshals.

If the science is there, Dr. Lewinski said, he does not shy away from offering opinions in controversial cases. He said he was working on behalf of one of two Albuquerque officers who face murder charges in last year’s shooting death of a mentally ill homeless man. He has testified in many racially charged cases involving white officers who shot black suspects, such as the 2009 case in which a Bay Area transit officer shot and killed Oscar Grant, an unarmed black man, at close range.

Dr. Lewinski said he was not trying to explain away every shooting. But when he testifies, it is almost always in defense of police shootings. Officers are his target audience — he publishes a newsletter on police use of force that he says has nearly one million subscribers — and his research was devised for them. “The science is based on trying to keep officers safe,” he said.

Dr. Lewinski, who grew up in Canada, got his doctorate in 1988 from the Union for Experimenting Colleges and Universities, an accredited but alternative Cincinnati school offering accelerated programs and flexible schedules. He designed his curriculum and named his program police psychology, a specialty not available elsewhere.

‘Invalid and Unreliable’

In 1990, a police shooting in Minneapolis changed the course of his career. Dan May, a white police officer, shot and killed Tycel Nelson, a black 17-year-old. Officer May said he fired after the teenager turned toward him and raised a handgun. But an autopsy showed he was shot in the back.

Dr. Lewinski was intrigued by the apparent contradiction. “We really need to get into the dynamics of how this unfolds,” he remembers thinking. “We need a lot better research.”

He began by videotaping students as they raised handguns and then quickly turned their backs. On average, that move took about half a second. By the time an officer returned fire, Dr. Lewinski concluded, a suspect could have turned his back.

He summarized his findings in 1999 in The Police Marksman, a popular magazine for officers. The next year, it published an expanded study, in which Dr. Lewinski timed students as they fired while turning, running or sitting with a gun at their side, as if stashed in a car’s console.

Suspects, he concluded, could reach, fire and move remarkably fast. But faster than an officer could react? In 2002, a third study concluded that it takes the average officer about a second and a half to draw from a holster, aim and fire.

Together, the studies appeared to support the idea that officers were at a serious disadvantage. The studies are the foundation for much of his work over the past decade.

Because he published in a police magazine and not a scientific journal, Dr. Lewinski was not subjected to the peer-review process. But in separate cases in 2011 and 2012, the Justice Department and a private lawyer asked Lisa Fournier, a Washington State University professor and an American Journal of Psychology editor, to review Dr. Lewinski’s studies. She said they lacked basic elements of legitimate research, such as control groups, and drew conclusions that were unsupported by the data.

“In summary, this study is invalid and unreliable,” she wrote in court documents in 2012. “In my opinion, this study questions the ability of Mr. Lewinski to apply relevant and reliable data to answer a question or support an argument.”

Dr. Lewinski said he chose to publish his findings in the magazine because it reached so many officers who would never read a scientific journal. If he were doing it over, he said in an interview, he would have published his early studies in academic journals and summarized them elsewhere for officers. But he said it was unfair for Dr. Fournier to criticize his research based on summaries written for a general audience.While opposing lawyers and experts found his research controversial, they were particularly frustrated by Dr. Lewinski’s tendency to get inside people’s heads. Time and again, his reports to defense lawyers seem to make conclusive statements about what officers saw, what they did not, and what they cannot remember.

Often, these details are hotly disputed. For example, in a 2009 case that revolved around whether a Texas sheriff’s deputy felt threatened by a car coming at him, Dr. Lewinski said that the officer was so focused on firing to stop the threat, he did not immediately recognize that the car had passed him.

Inattentional Blindness

Such gaps in observation and memory, he says, can be explained by a phenomenon called inattentional blindness, in which the brain is so focused on one task that it blocks out everything else. When an officer’s version of events is disproved by video or forensic evidence, Dr. Lewinski says, inattentional blindness may be to blame. It is human nature, he says, to try to fill in the blanks.

“Whenever the cop says something that’s helpful, it’s as good as gold,” said Mr. Burton, the California lawyer. “But when a cop says something that’s inconvenient, it’s a result of this memory loss.”

Experts say Dr. Lewinski is too sure of himself on the subject. “I hate the fact that it’s being used in this way,” said Arien Mack, one of two psychologists who coined the term inattentional blindness. “When we work in a lab, we ask them if they saw something. They have no motivation to lie. A police officer involved in a shooting certainly has a reason to lie.”

Dr. Lewinski acknowledged that there was no clear way to distinguish inattentional blindness from lying. He said he had tried to present it as a possibility, not a conclusion.

Almost as soon as his research was published, lawyers took notice and asked him to explain his work to juries.

In Los Angeles, he helped authorities explain the still-controversial fatal shooting of Anthony Dwain Lee, a Hollywood actor who was shot through a window by a police officer at a Halloween party in 2000. The actor carried a fake gun as part of his costume. Mr. Lee was shot several times in the back. The officer was not charged.

The city settled a lawsuit over the shooting for $225,000, but Mr. Lewinski still teaches the case as an example of a justified shooting that unfairly tarnished a good officer who “was shooting to save his own life.”

In September 2001, a Cincinnati judge acquitted a police officer, Stephen Roach, in the shooting death of an unarmed black man after a chase. The officer said he believed the man, Timothy Thomas, 19, was reaching for a gun. Dr. Lewinski testified, and the judge said he found his analysis credible. The prosecutor, Stephen McIntosh, however, told The Columbus Dispatch that Dr. Lewinski’s “radical” views could be used to justify nearly any police shooting.

“If that’s the sort of direction we, as a society, are going,” the prosecutor said, “I have a lot of disappointment.” Since then, Dr. Lewinski has testified in many dozens of cases in state and federal court, becoming a hero to many officers who feel that politics, not science or safety, drives police policy. For example, departments often require officers to consider less-lethal options such as pepper spray, stun guns and beanbag guns before drawing their firearms.

“These have come about because of political pressure,” said Les Robbins, the executive director of the Association for Los Angeles Deputy Sheriffs. In an interview, Mr. Robbins recalled how he used to keep his gun drawn and hidden behind his leg during most traffic stops. “We used to be able to use the baton and hit people where we felt necessary to get them to comply. Those days are gone.”

Positions of Authority

Dr. Lewinski and his company have provided training for dozens of departments, including in Cincinnati, Las Vegas, Milwaukee and Seattle. His messages often conflict, in both substance and tone, with the training now recommended by the Justice Department and police organizations.

The Police Executive Research Forum, a group that counts most major city police chiefs as members, has called for greater restraint from officers and slower, better decision making. Chuck Wexler, its director, said he is troubled by Dr. Lewinski’s teachings. He added that even as chiefs changed their use-of-force policies, many did not know what their officers were taught in academies and private sessions.

“It’s not that chiefs don’t care,” he said. “It’s rare that a chief has time to sit at the academy and see what’s being taught.”

Regardless of what, if any, policy changes emerge from the current national debate, civil right lawyers say one thing will not change: Jurors want to believe police officers, and Dr. Lewinski’s research tells them that they can.

On a cold night in early 2003, for instance, Robert Murtha, an officer in Hartford, Conn., shot three times at the driver of a car. He said the vehicle had sped directly at him, knocking him to the ground as he fired. Video from a nearby police cruiser told another story. The officer had not been struck. He had fired through the driver’s-side window as the car passed him.

Officer Murtha’s story was so obviously incorrect that he was arrested on charges of assault and fabricating evidence. If officers can get away with shooting people and lying about it, the prosecutor declared, “the system is doomed.”

“There was no way around it — Murtha was dead wrong,” his lawyer, Hugh F. Keefe, recalled recently. But the officer was “bright, articulate and truthful,” Mr. Keefe said. Jurors needed an explanation for how the officer could be so wrong and still be innocent.

Dr. Lewinski testified at trial. The jury deliberated less than one full day. The officer was acquitted of all charges.

Please go to our Moodle Page and under "Class 1" you will find the prompt and submission folder for Writing Reflection #1.

Please read the course syllabus that is posted on Moodle. 

Forensic methods enable surveillance, prosecution, conviction, and punishment, the core inputs and outputs of the criminal legal system.^[1] Black, Brown, and other marginalized groups, overrepresented in the criminal legal system, are especially impacted by these methods. Forensic techniques allow law enforcement to surveil and monitor: DNA and fingerprint databases, in which Black and Brown people are overrepresented, house identifying information of millions of individuals and allow police to monitor and supervise communities;^[2] police use, often in secret, sophisticated location tracking devices to surveil; and emerging technologies, like facial recognition systems, allow even greater mass monitoring and surveillance.^[3] Databases like the FBI’s Combined DNA Index System (CODIS), the Automated Fingerprint Identification System (AFIS), and even consumer DNA databases amass biometric data in seeming perpetuity, widening law enforcement’s net of possible suspects.[4] Unsurprisingly, people of color, and Black people especially, are most affected by these tactics, as law enforcement monitors their communities more than those of other, non-marginalized populations.^[5] Not only do forensic methods enable carceral harm, they also launder and legitimize it by cloaking carceral functions with the allegedly neutral and objective aura of “science.”^[6]

. . .

1.      The Carceral Origins of Forensic Methods

“[M]any forensic fields (e.g., firearms analysis, latent fingerprint identification) are but handmaidens of the legal system, and they have no significant uses beyond law enforcement.”^[7]

* * *

. . .

Most forensic methods were first developed in police departments as investigative aids meant to produce evidence that would connect suspects to crimes and secure convictions.^[8] Despite the nomenclature, other than DNA analysis, the forensic sciences did not arise out of academia, research institutions or scientific laboratories—they do not have their origins in the sciences at all.^[9] Their development was financed by the “War on Crime,” launched by President Lyndon Johnson in 1965, and the better-known “War on Drugs,” which brought federal funding to local police departments to effectuate national crime policy.

In the mid-1960s, partially in response to unrest in urban cities related to discriminatory policing, mass fear around rising crime took hold across America and in national politics.[10] As part of a federal response to the perceived threat of crime and disorder, in 1965, President Lyndon Johnson launched the “War on Crime”—the less famous precursor to President Nixon and Reagan’s “War on Drugs”—and sent Congress the Law Enforcement Assistance Act.[11] The passage of the Law Enforcement Assistance Act was a watershed moment in American law enforcement; it marked the beginning of the modern era of criminal justice in which the federal government  plays a direct role in local law enforcement.[12]

The Law Enforcement Assistance Act paved the way not only for mass criminalization, but also for the widespread use of forensic methods in law enforcement seen today.[13] In the leadup to the passage of the Law Enforcement Act, President Johnson established a national commission to study the perceived crime problem and develop a national law enforcement program.[14] The commission focused its efforts on urban Black communities, which it believed to be at the center of the crime problem, without consultation with members of those communities.[15]

The commission’s sweeping final report, issued in 1967, made hundreds of wide-ranging recommendations.[16] Among these were recommendations to improve police ability to utilize technological advancements like fingerprint and voiceprint analysis and other forensic techniques by establishing additional crime labs and conducting research to facilitate the use of such techniques to aid in law enforcement efforts.[17] The commission also suggested that future crime solving would require collection and forensic analysis of physical crime scene evidence, including fingerprints, weapons, shoeprints, and trace evidence, and encouraged investment in lab services and the establishment of a central fingerprint database.[18]

These recommendations were a significant factor in paving the way for increased attention to the development and utilization of forensic methods.[19] The commission’s recommendations became the basis for legislation that provided unprecedented funding to local law enforcement agencies to facilitate these new initiatives.[20] Billions of dollars were ultimately sent to local law enforcement, which allowed the development of methods to collect and analyze physical crime scene evidence and resulted in the proliferation of police crime labs.[21] Notably, War on Crime dollars also went to funding of surveillance technologies focusing on Black communities that included helicopter systems, crime prediction programs, and mobile surveillance units.[22]

. . .

As a result of its law enforcement origins, forensic disciplines have a natural alignment with one side of the adversarial process: the prosecution.^[23] That alignment runs deep.^[24] Forensic practitioners both work for and communicate heavily with prosecutors and rarely work collaboratively with defense lawyers without prosecutors listening in.^[25] As a result, forensic practitioners often see themselves as part of the prosecution team, exhibiting pro-prosecution bias and willingness to provide testimony that supports the prosecution’s case, even when unwarranted.^[26] Even those who do not view themselves as an arm of law enforcement may be pressured to return the result sought by the prosecution.^[27]

Though most forensic methods were developed outside the scientific process without integrating fundamentals of the scientific method, law enforcement coopted the term “science” as part of a strategy to professionalize police departments by connecting them to science and to lend weight and credibility to forensic techniques.^[28] Practitioners described themselves as forensic “scientists,” when they are often more aptly characterized as technicians, who focus on the application of methods rather than research or theory.^[29] Police departments created crime laboratories not for testing theories and hypotheses, but at least in part for public relations.^[30]

Because forensics inherited law enforcement’s concern for securing convictions, the scientific method and process were often left by the wayside in the development of forensic methods.[31] Given that those targeted for prosecution and conviction are disproportionately Black, Brown, or otherwise of color,[32] it comes as no surprise that those convicted by unreliable forensic evidence are also members of marginalized communities. The overlap between the increased use of forensic techniques and the mass expansion of the criminal legal system makes clear that those who have been hit hardest by nearly five decades of expanded criminalization, Black and Brown communities,^[33] are also the most likely to bear the brunt of flawed forensics in their cases. It is difficult to quantify the effects of flawed forensics, but the available data bear this out. The National Registry of Exonerations reports that problematic forensic evidence has contributed to twenty-four percent of wrongful convictions.^[34] Of that group, fifty-four percent of those convicted are Black or Latinx.^[35]

. . . 

Footnotes:

^[1] See Mnookin et al., supra note 116, at 726.

^[2] See Ava Kofman, The FBI Wants to Exempt Massive Biometric Database from the Privacy Act, The Intercept (June 1, 2016), https://theintercept.com/2016/06/01/the-fbi-wants-to-exempt-massive-biometric-database-from-the-privacy-act/; Natalie Ram, The U.S. May Soon Have a De Facto National DNA Database, Slate (Mar. 19, 2019), https://slate.com/technology/2019/03/national-dna-database-law-enforcement-genetic-genealogy.html; Privacy Impact Assessment Integrated Automated Fingerprint Identification System National Security Enhancements, FBI (last visited Mar. 5, 2021), https://www.fbi.gov/services/information-management/foipa/privacy-impact-assessments/iafis; Erin Murphy & Jun H. Tong, The Racial Composition of Forensic DNA Databases, 108 Calif. L. Rev. 1847, 1851 (2020); Denise Syndercombe Court, Protecting against racial bias in DNA databasing, 1 Nature Computational Sci. 249, 249 (2021).

^[3] Lindsey Barret, Ban Facial Recognition Technologies for Children and for Anyone Else, 26 B.U. J. Sci. & Tech. 223, 240 (2020); Andrew Guthrie Ferguson, Facial Recognition and the Fourth Amendment, 105 Minn. L. Rev. 1105, 1112 (2021).

[4] Natalie Ram, Erin Murphy & Sonia Suter, Regulating forensic genetic genealogy, 373 Science 1444, 1444 (2021).

^[5] See Murphy & Tong, supra note 82, at 1851.

^[6] See Cino, supra note 126, at 540 (“[E]veryone can sleep better at night because ‘science’ solidified the conviction.”).

^[7] NAS Report, supra note 2, at 52.

^[8] See NAS Report, supra note 2, at 42, 187; Meehan Crist & Tim Requarth, Forensic Science Put Jimmy Genrich in Prison for 24 Years. What if It Wasn’t Science?: A Special Investigation Reveals a Disastrous Flaw Affecting Thousands of Criminal Convictions, The Nation (Feb. 1, 2018), https://www.thenation.com/article/archive/the-crisis-of-american-forensics/; Terrence F. Kiely, The Houses of Deceits: Science, Forensic Science, and Evidence and Introduction to Forensic Evidence, 35 Land & Water L. Rev. 397, 415 (2000).

^[9] Eric S. Lander, Fixing Rule 702: The PCAST Report and Steps to Ensure the Reliability of Forensic Feature-Comparison Methods in the Criminal Courts, 86 Fordham L. Rev. 1661, 1668 (2018); Paul C. Giannelli, Independent Crime Laboratories: The Problem of Motivational and Cognitive Bias, 2010 Utah L. Rev. 247, 250; NAS Report, supra note 2, at 42; Sandra Guerra Thompson, Cops in Lab Coats: Curbing Wrongful Convictions through Independent Forensic Laboratories 195 (2015); Radley Balko, Opinion, Jeff Sessions Wants to Keep Forensics in the Dark Ages, Wash. Post (Apr. 11, 2017), https://www.washingtonpost.com/news/the-watch/wp/2017/04/11/jeff-sessions-wants-to-keep-forensics-in-the-dark-ages/.

[10] See Elizabeth Hinton, From the War on Poverty to the War on Crime: The Making of Mass Incarceration in America 6, 55-56 (2016). In reality, and contrary to popular belief, reported rising crime rates corresponded to newly-implemented crime statistics measures and reporting policies that coincided with new federal crime control funding tied to reported crime rates. Id.

[11] Id. at 6, 56

[12] Id. at 1-2.

[13] Id. at 5; Joseph L. Peterson & Anna S. Leggett, The Evolution of Forensic Science: Progress Amid the Pitfalls, 36 Stetson L. Rev. 621, 623-25 (2007).

[14] President’s Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society, U.S. Gov’t Printing Off., Foreword (1967) [hereinafter Crime Commission Report], https://www.ojp.gov/sites/g/files/xyckuh241/files/archives/ncjrs/42.pdf; Hinton, supra note 91, at 80-81.

[15] Id. at 83-83.

[16] Crime Commission Report, supra note 95, at 293-301.

[17] Id. at 245-46, 255.

[18] President’s Commission on Law Enforcement and Administration of Justice, Task Force On the Police, Task Force Report: The Police, U.S. Gov’t Printing Off., 51, 57, 92 (1967), https://www.ojp.gov/pdffiles1/Digitization/147374NCJRS.pdf.

[19] Id. at 92.

[20] Hinton, supra note 91, at 2, 104; Peterson & Leggett, supra note 94, at 623.

[21] Peterson & Leggett, supra note 94, at 625.

[22] Hinton, supra note 91, at 87, 90-92.

^[23] Michael J. Saks, Merlin and Solomon: Lessons from the Law’s Formative Encounters with Forensic Identification Science, 49 Hastings L.J. 1069, 1092 (1998).

^[24] Id.

^[25] See Nicole Bremner Cásarez & Sandra Guerra Thompson, Three Transformative Ideals to Build a Better Crime Lab, 34 Ga. St. U. L. Rev. 1007, 1008 (2018). Of course, the accused use forensic evidence too, but with far less frequency and typically in response to prosecution evidence. Id.

^[26] See, e.g., Paul C. Giannelli, The Abuse of Scientific Evidence in Criminal Cases: The Need for Independent Crime Laboratories, 4 Va. J. Soc. Pol’y & L. 439, 441 (1997).

^[27] See NAS Report, supra note 2, at 23–24.

^[28] See Crist & Requarth, supra note 89; Radley Balko, A Brief History of Forensics, Wash. Post (Apr. 21, 2015), https://www.washingtonpost.com/news/the-watch/wp/2015/04/21/a-brief-history-of-forensics/; Jennifer L. Mnookin et al., The Need for a Research Culture in the Forensic Sciences, 58 UCLA L. Rev. 725, 766 (2011).

^[29] Michael J. Saks & David L. Faigman, Failed Forensics: How Forensic Science Lost Its Way and How It Might Yet Find It, 4 Ann. Rev. L. & Soc. Sci. 149, 153 (2008); Mnookin et al., supra note 116, at 766. See also Paul C. Giannelli, Forensic Science: Why No Research?, 38 Fordham Urb. L.J. 503, 508-09 (2010).

^[30] Saks, supra note 111, at 1092. See also Crist & Requarth, supra note 89.

[31] See Saks and Faigman, supra note 117 at 157–58.

[32] See Race and Ethnicity, Prison Policy Initiative, https://www.prisonpolicy.org/research/race_and_ethnicity/ (consolidating data on, inter alia, overrepresentation of people of color in the criminal legal system).

^[33] Criminal Justice Facts, Sentencing Project, https://www.sentencingproject.org/criminal-justice-facts (last visited Mar. 4, 2021); Levin, supra note 88, at 260–61.

^[34] See % Exonerations by Contributing Factors, Nat’l Registry Of Exonerations, http://www.law.umich.edu/special/exoneration/Pages/ExonerationsContribFactorsByCrime.aspx (last visited Mar. 4, 2021).

^[35] The National Registry of Exonerations lists 665 wrongful convictions as involving faulty forensic evidence as a contributing factor. Id. Of those, it lists 301 as Black and 54 as “Hispanic.” Search Results, Nat’l Registry of Exonerations, http://www.law.umich.edu/special/exoneration/Pages/detaillist.aspx?View={FAF6EDDB-5A68-4F8F-8A52-2C61F5BF9EA7}&FilterField1=F%5Fx002f%5FMFE&FilterValue1=8%5FF%2FMFE (last visited Mar. 4, 2021).

With George Floyd, a Raging Debate Over Bias in the Science of Death

Critics say the profession of forensic pathology has been slow to acknowledge how big a role bias may play in decisions such as whether to classify a death in police custody as a homicide.

The memorial to George Floyd outside Cup Foods. The question of how Mr. Floyd died is central to the case against Derek Chauvin.Credit...Joshua Rashaad McFadden for The New York Times

By Shaila Dewan

Published April 14, 2021 Updated April 16, 2021

MINNEAPOLIS — From the beginning, the death of George Floyd disrupted the field of forensic pathology in much of the way it challenged policing.

Days after Mr. Floyd’s death on May 25, prosecutors said it was caused not just by the police officer kneeling on his neck for nine minutes and 29 seconds, but also by his underlying health conditions and drug use.

Critics protested that the finding reflected racial bias — and served as a prime example of how forensic pathology has failed to do enough to counter its own subjectivity in decisions such as whether to classify a death in police custody as a homicide.

The public criticism helped expose long-simmering tensions within the small but influential world of medical examiners, drawing in some of the experts who consulted on the case or may be called to testify for the defense.

Some of them have vigorously objected to a study, published just before the trial began, that measured bias among forensic pathologists, taking the unusual step of asking that it be retracted.

The timing of the paper was “particularly alarming in the era of Black Lives Matter, critical race theory, riots and so forth,” wrote Dr. Brian L. Peterson, the Milwaukee County medical examiner, in one of several emails to a private forensic pathology email list obtained by The New York Times. “What is woke today is fodder tomorrow.”

Medical examiners say that of course they, like everyone else, have biases — but that they already have ample systems in place, including courtroom scrutiny of their decisions, to curb them. In fact, Dr. Peterson wrote, the notion that cause-of-death determinations are objective and science-based is “basically nonsense.”

“Is there anyone in our profession that has not, at one point or another, quipped about ‘spinning the wheel of death’ and picking one?”

After the Journal of Forensic Sciences published the study, which showed that medically irrelevant information like the victim’s race can sway the decisions of forensic pathologists, Dr. Peterson, along with Dr. David Fowler and Dr. William Oliver, signed a letter asking that it be retracted, calling it “fatally flawed.”

The Journal of Forensic Sciences, which published the paper, declined to retract it.

Dr. Brian L. Peterson has said that the idea that cause-of-death decisions are objective and science-based is “basically nonsense.” He is set be called as a witness by the defense for Mr. Chauvin.Credit...Sara Stathas

Dr. Fowler, who testified on Wednesday for Mr. Chauvin’s defense, is the former chief medical examiner of Maryland, and Dr. Oliver, who was also listed as a potential defense witness, is a professor at the Brody School of Medicine in North Carolina.

Dr. Fowler testified that there were so many factors contributing to Mr. Floyd’s death, including heart disease and high blood pressure, that he would have classified the manner of death as “undetermined” rather than as “homicide.”

Dr. Fowler is named in a civil rights lawsuit filed by the family of Anton Black, an unarmed Black teenager who died in Baltimore in 2018 after officers held him down in the prone position for about six minutes. The family has compared his death to the death of Mr. Floyd. Dr. Fowler’s office classified it as an accident.

Complaints of bias have long hung over the Floyd case. Four days after Mr. Floyd’s death, the county prosecutors listed what they said were preliminary autopsy findings in a criminal complaint that many said undermined their own case against the officers involved.

An opinion piece written by 12 doctors and published in Scientific American called the complaint “a weaponization of medical language” that “reinforced white supremacy at the torment of Black Americans.”

“They took standard components of a preliminary autopsy report to cast doubt, to sow uncertainty; to gaslight America into thinking we didn’t see what we know we saw,” they wrote.

The state attorney general, Keith Ellison, soon took over the case.

By then the Floyd family had hired two forensic pathologists, a white man and a Black woman, to conduct their own autopsies. Both of them, Dr. Michael Baden and Dr. Allecia Wilson, said that asphyxia, or deprivation of oxygen, was the cause of death and placed the blame squarely on the police officers involved.

Second autopsies have long been a common practice, in part because medical examiners have longstanding relationships with prosecutors and the police, raising concerns about their objectivity in deaths involving officers.

But in Mr. Floyd’s case the main professional organization for forensic pathologists, the National Association of Medical Examiners, took the unusual step of issuing a statement that many perceived as critical of the practice.

The association’s primary goal seemed to be to defend Dr. Andrew Baker, the Hennepin County medical examiner and a past president of the association, who performed the Floyd autopsy.

Dr. Andrew Baker, the Hennepin County medical examiner who performed George Floyd’s official autopsy, testified in court on Friday.Credit...Still image, via Court TV

After his report, which classified the death as a homicide and listed heart disease, fentanyl and methamphetamine as contributing factors to Mr. Floyd’s death, was released last June, an emergency fence and concrete barricades were erected around his office.

The statement from the association took issue with news reports that described the private autopsies by Drs. Baden and Wilson as “independent,” implying that Dr. Baker’s was compromised.

“The independent autopsy is the one done by the medical examiner who, unlike private pathologists, do not have an incentive to come up with a certain view,” it said.

But private autopsies are a routine stream of income for many forensic pathologists, and the association began to receive complaints, including one from one of the country’s most renowned forensic pathologists, Cyril Wecht. Another came from Dr. Wilson, one of the pathologists hired by the Floyd family.

“Our fight should not be between each other but working together to understand why Black men are dying so quickly when taken into police custody,” Dr. Wilson wrote, saying the Floyd family’s consulting with her was akin to a patient’s getting a second opinion. She noted that the practice had never before earned a rebuke from the association.

“I am particularly offended as I have watched Dr. Baden make controversial opinions my entire career, but when another, a Black woman, has a controversial opinion, it is handled quite differently,” she wrote.

The medical examiners association retracted the statement.

An image taken from a video of Dr. Allecia Wilson delivering her autopsy findings in Mr. Floyd’s death. Dr. Wilson and Dr. Michael Baden, both forensic pathologists, were hired by the Floyd family to conduct their own autopsies.

Its leaders also invited Dr. Joye Carter to help develop a protocol for second autopsies. Dr. Carter says she is the first Black woman to be board certified in forensic pathology in the United States and the first Black person appointed to be a chief medical examiner, a position she held in Washington, D.C., and Houston. She consulted on the Floyd case for the prosecution.

Dr. Carter had discontinued her membership in the national association five years before. “I never felt welcome. I never felt included,” she said. “You know, there’s a difference between feeling welcomed and feeling tolerated.”

She agreed to come back and was hopeful that things had changed, especially after she was asked to chair a new diversity committee.

Because of that, she said, she did not anticipate any controversy when she signed on to the study on bias among forensic pathologists, led by Itiel Dror, a cognitive neuroscientist who specializes in expert error and bias. The authors examined 10 years of children’s death certificates in Nevada and found that the deaths of Black children were a little more likely to be classified as homicides, rather than accidents, compared with deaths of white children.

They also sent a death scenario to forensic pathologists, and found that those who responded were more likely to rule it a homicide when the child in the scenario was Black and cared for by the mother’s boyfriend than when the child was white and cared for by a grandmother.

The authors said the study was merely a starting point for research and suggested that forensic pathologists further explore how and when contextual information should be used, and be transparent when using it.

Four of the study’s authors were forensic pathologists, including Dr. Carter.

In February, Dr. Peterson, the potential defense witness in Mr. Floyd’s case, filed an ethics complaint against all four, accusing them of “conduct averse to the best interests and purposes” of the profession.

“By basically accusing every member of ‘unconscious’ racism, a charge impossible to either prove or refute, members will henceforth need to confront this bogus issue whenever testifying in court,” he wrote in the complaint, a copy of which was obtained by The Times.

Dr. Peterson did not respond to a message left with his office, where a spokeswoman said he was on vacation. Ethics complaints are supposed to be confidential, and the accused doctors declined to discuss it or did not respond to a request for comment.

The vitriolic response to the study surprised Dr. Carter.

“I was kind of blown away by what appears to be very irate reaction,” she said. “And I’m not sure if everyone has truly read the article for what it is. It’s an article that suggests, let’s be aware of this, let’s be proactive in this. I don’t think anybody, any physician of color, would say, ‘Gee, this is earthshaking news.’”

By Robert Williams

June 24, 2020

Robert Williams is a resident of Farmington Hills, Mich., and client of the American Civil Liberties Union.

I never thought I’d have to explain to my daughters why Daddy got arrested. How does one explain to two little girls that a computer got it wrong, but the police listened to it anyway?

While I was leaving work in January, my wife called and said a police officer had called and said I needed to turn myself in. I told her it was probably a prank. But as I pulled up to my house, a Detroit squad car was waiting in front. When I pulled into the driveway, the squad car swooped in from behind to block my SUV — as if I would make a run for it. One officer jumped out and asked if I was Robert Williams. I said I was. He told me I was under arrest. When I asked for a reason, he showed me a piece of paper with my name on it. The words “arrest warrant” and “felony larceny” were all I could make out.

By then, my wife, Melissa, was outside with our youngest in her arms, and my older daughter was peeking around my wife trying to see what was happening. I told my older daughter to go back inside, that the cops were making a mistake and that Daddy would be back in a minute.

But I wasn’t back in a minute. I was handcuffed and taken to the Detroit Detention Center.

As any other person would be, I was angry that this was happening to me. As any other black man would be, I had to consider what could happen if I asked too many questions or displayed my anger openly — even though I knew I had done nothing wrong.

When we arrived at the detention center, I was patted down probably seven times, asked to remove the strings from my shoes and hoodie and fingerprinted. They also took my mugshot. No one would tell me what crime they thought I’d committed. A full 18 hours went by. I spent the night on the floor of a filthy, overcrowded cell next to an overflowing trash can.

The next morning, two officers asked if I’d ever been to a Shinola watch store in Detroit. I said once, many years ago. They showed me a blurry surveillance camera photo of a black man and asked if it was me. I chuckled a bit. “No, that is not me.” He showed me another photo and said, “So I guess this isn’t you either?” I picked up the piece of paper, put it next to my face and said, “I hope you guys don’t think that all black men look alike.”

The cops looked at each other. I heard one say that “the computer must have gotten it wrong.” I asked if I was free to go now, and they said no. I was released from detention later that evening, after nearly 30 hours in holding.

I eventually got more information from an attorney referred to me by the American Civil Liberties Union of Michigan. Someone had stolen watches, and the store owner provided surveillance footage to the Detroit Police Department. They sent that footage to the Michigan State Police, who then ran it through their facial-recognition system. That system incorrectly spit out a photograph of me pulled from an old driver’s license picture.

Federal studies have shown that facial-recognition systems misidentify Asian and black people up to 100 times more often than white people. Why is law enforcement even allowed to use such technology when it obviously doesn’t work? I get angry when I hear companies, politicians and police talk about how this technology isn’t dangerous or flawed. What’s worse is that, before this happened to me, I actually believed them. I thought, what’s so terrible if they’re not invading our privacy and all they’re doing is using this technology to narrow in on a group of suspects?

I wouldn’t be surprised if others like me became suspects but didn’t know that a flawed technology made them guilty in the eyes of the law. I wouldn’t have known that facial recognition was used to arrest me had it not been for the cops who let it slip while interrogating me.

The ACLU is lodging a complaint against the police department on my behalf, but that likely won’t change much. My daughters can’t unsee me being handcuffed and put into a police car. But they can see me use this experience to bring some good into the world. That means helping make sure my daughters don’t grow up in a world where their driver’s license or Facebook photos could be used to target, track or harm them.

Even if this technology does become accurate (at the expense of people like me), I don’t want my daughters’ faces to be part of some government database. I don’t want cops showing up at their door because they were recorded at a protest the government didn’t like. I don’t want this technology automating and worsening the racist policies we’re protesting. I don’t want them to have a police record for something they didn’t do — like I now do.

I keep thinking about how lucky I was to have spent only one night in jail — as traumatizing as it was. Many black people won’t be so lucky. My family and I don’t want to live with that fear. I don’t want anyone to live with that fear.

Editor’s note: In response to request for comment from The Post, Nicole Kirkwood of the Detroit Police Department submitted this response: “The Detroit Police Department (DPD) does not make arrests based solely on Facial Recognition. Facial Recognition software is an investigative tool that is used to generate leads only. ... In reference to this case, an investigation was conducted. The investigator reviewed video, interviewed witnesses, conducted a photo line-up, and submitted a warrant package containing facts and circumstances, to the Wayne County Prosecutors Office (WCPO) for review and approval. The WCPO in return recommended charges that was endorsed by the magistrate/judge for Retail Fraud – First Degree." She also noted: “[T]his case predates our current policy, which only allows the use of the Facial Recognition software after a violent crime has been committed.”

Please go to our Moodle Page and under "Class 2" you will find the prompt and submission folder for Writing Reflection #2.

One of my clients, Duane Buck, was convicted of murder in 1997 and sentenced to death, in part because an expert testified that he was more likely to commit criminal acts of violence in the future because he is Black. That racist testimony led the Supreme Court to overturn Buck’s death sentence in 2017.

The belief that race is a proxy for criminality pervades the U.S. legal system. Indeed, a new report from the National Registry of Exonerations — researched by social scientists, lawyers and journalists and examining the 3,248 exonerations that have occurred in the U.S. since 1989 — demonstrates that race is a powerful driver of wrongful convictions. Among the report’s findings:

• Black people are seven times more likely than white people to be falsely convicted of serious crimes.

• Even accounting for crime rates, Black people convicted of murder are almost 80% more likely to be innocent than other people convicted of murder.

• The exonerations of innocent Black people convicted of murder were almost 50% more likely to include misconduct by police officers than the exonerations of white people convicted of murder.

• Innocent Black people were almost eight times more likely than innocent white people to be falsely convicted of rape.

• Innocent Black people were 19 times more likely to be convicted of drug crimes than innocent white people, even though there was no meaningful disparity in the rate at which Black and white people sell or possess drugs.

On their own, these numbers cannot fully illustrate the harm caused by this kind of bias and inequity. Consider the case of Calvin Johnson, who has served as a board member at the Innocence Project. Johnson was tried for two sexual assaults in two different Georgia counties in the 1980s. In Clayton County, Johnson and his attorney were sometimes the only Black people in the courtroom. An all-white jury rejected the alibi testimony offered by four Black witnesses and deliberated just 45 minutes before returning with a guilty verdict. Johnson was sentenced to life in prison.

Seven months later, he went on trial for the second assault in Fulton County. Even though the Clayton County conviction made the prosecution’s case against him much stronger, he was acquitted by a jury composed of five white people and seven Black people. More than a decade after Johnson’s conviction, the Innocence Project secured DNA testing of the rape kit in the Clayton County case and conclusively established his innocence. His wrongful conviction was overturned.

The outcomes of the cases of Duane Buck and Calvin Johnson are only two examples of the persistence of racial bias in the criminal legal system. Finding long-term solutions for ensuring the fair and equitable administration of justice in the American legal system will be a complex, multigenerational undertaking. But real opportunities to begin the process of reform already exist.

For starters, anyone who works with or within the legal system should make a commitment to ensuring that their work is consistently guided by scholarship, laws and policies that mitigate racial bias in criminal legal system decision-making. For example, Illinois — a state where 90% of known false confession cases involved Black and brown people — became the first state in the country, in 2021, to prohibit police officers from using deception when interrogating people younger than 18.

We must continue to ensure the reliability of DNA testing. The report found that routinized DNA testing had all but eliminated wrongful sexual assault convictions based on cross-racial misidentifications in cases with biological evidence. This is transformative, given the extensive history of innocent Black men wrongfully convicted of such crimes. But as new technology allows the analysis of ever smaller and more complex samples of DNA, that technology must also be subject to robust scrutiny.

Every prosecutor’s office should have an independent, appropriately staffed conviction integrity unit — a team tasked with reviewing convictions presenting credible claims of innocence that works collaboratively with defense counsel on reinvestigations. As of June there were 101 such units in the U.S. The National Registry’s report found that they were responsible for 1 out of 3 exonerations from 2015 to 2022.

Crime labs can play a significant role in preventing and ameliorating racial disproportionality in wrongful drug convictions. Because the Houston crime lab conducts post-conviction testing of drugs, it uncovered 157 cases where no controlled substance was involved. Expanding this practice to additional jurisdictions, conducting such testing at the beginning of the process, and requiring crime lab testing before permitting a guilty plea in drug cases should significantly diminish wrongful convictions and reduce racial inequities.

There should be more data collection, transparency, evaluation and regulation of technologies such as facial recognition software that currently penalize communities of color. In addition, affected communities should be included in the decision-making process.

The National Registry report makes clear that for Black people, the legal process looks different, the outcomes are more severe and getting a remedy for system atrocities can take a very long time. There are no easy answers, but progress will need to start with making a commitment to recognizing the racial disparities that continue to distort the administration of justice.

Christina Swarns is the executive director of the Innocence Project.

This is a defense motion to exclude fingerprint evidence in a criminal case under Frye (which was referred to as the Frye/Dyas test in D.C.). The actual document is sitting under the "Class 3" folder on Moodle - please go to Moodle to read the document. This motion:

(a) illustrates the application of the Frye test;

(b) considers the question of who counts as the relevant scientific community;

(c) describes the fingerprint identification process;

(d) describes the critique of that process; and

(e) illustrates the relationship of Rule 403 to Frye.

This is the government's response to the motion to exclude fingerprint evidence that you just read. This excerpt illustrates the different view the government takes on the Frye test, the definition of the relevant scientific community, and the meaning of the 2009 NRC Report.

Please read:

• Pages 1-5
• Pages 13-40
• Pages 46 & 47
• Page 49 (starting with point "3") to page 51
• The last line of page 57 to page 58
• And skim the index at the end 

The excerpt is a pdf posted on our Mooodle site under "Class 3."

TABLE OF CONTENTS

Page

PRELIMINARY STATEMENT......................................................................... 3

ARGUMENT..................................................................................................... 4

I....... New York courts applying Frye should not use the “novelty test” to avoid further analysis of scientific evidence................................................................... 4

II...... New York courts should not mistake legal precedent for an analysis of reliability in evaluating scientific evidence under Frye............................................. 12

III..... This Court should provide guidance on the appropriate scope of the “relevant scientific community.”............................................................................ 18

IV..... New York’s interest in effectively scrutinizing scientific evidence for reliability could be aided by using the factors discussed in Daubert to conduct a Frye analysis.................................................................................................. 26

CONCLUSION................................................................................................ 30

   1. TABLE OF AUTHORITIES

Cases

In re Accutane Litig.,
234 N.J. 340 (2018)..................................................................................... 29

Ex parte Chaney,
563 S.W.3d 239 (Tex. Crim. App. 2018)........................................................ 8

Chesson v. Montgomery Mutual Ins. Co.,
75 A.3d 932 (Md. 2013)............................................................................... 16

Coble v. State,
330 S.W.3d 253 (Tex. Crim. App. 2010)...................................................... 16

State ex rel. Collins v. Superior Court,
644 P.2d 1266 (Ariz. 1982).......................................................................... 22

Commonwealth v. Foley,
38 A.3d 882 (Pa. Super. Ct. 2012).................................................................. 7

Commonwealth v. Shanley,
919 N.E.2d 1254 (Mass. 2010)................................................................. 8, 16

Contreras v. State,
718 P.2d 129 (Alaska 1986)......................................................................... 23

Cornell v. 360 W. 51st St. Realty, LLC,
22 N.Y.3d 762 (2014)............................................................................ 13, 19

Daubert v. Merrell Dow Pharm., Inc.,
509 U.S. 579 (1993).............................................................................. passim

Frye v. United States,
293 F. 1013 (D.C. Cir. 1923)................................................................. passim

Marso v. Novak,
42 A.D.3d 377 (1st Dep’t 2007)..................................................................... 9

Melendez-Diaz v. Massachusetts,
557 U.S. 305 (2009).................................................................................... 24

Motorola Inc. v. Murray,
147 A.3d 751 (D.C. 2016)...................................................................... 27, 28

Parker v. Mobil Oil Corp.,
7 N.Y.3d 434 (2006)................................................................... 14, 18, 25, 28

People v. Boone,
30 N.Y.3d 521 (2017).................................................................................. 29

People v. Calabro,
161 A.D.2d 375 (1st Dep’t 1990).............................................................. 9, 28

People v. Collins,
49 Misc. 3d 595 (Sup. Ct. Kings Cty. 2015)............................................ 19, 25

People v. Foster-Bey,
158 A.D.3d 641 (2d Dep’t 2018)............................................................ 15, 17

People v. Garcia,
39 Misc. 3d 482 (Sup. Ct. Bronx Cty. 2013)...................................... 10, 15, 18

People v. John.
27 N.Y.3d 294 (2016).................................................................................. 24

People v. Johnson,
27 N.Y.3d 199 (2016).................................................................................. 29

People v. LeGrand,
8 N.Y.3d 449 (2007).......................................................................... 5, 12, 13

People v. Luna,
989 N.E.2d 655 (Ill. App. Ct. 2013).............................................................. 14

People v. McKown,
875 N.E.2d 1029 (Ill. 2007).................................................................... 15, 16

People v. Rodriguez,
Ind. No. 5471/2009, Decision and Order (Sup. Ct. N.Y. Cty. May 1, 2012).. 6, 7

People v. Shreck,
22 P.3d 68 (Colo. 2001)............................................................................. 5, 6

People v. Slone,
76 Cal. App. 3d 611 (Cal. Ct. App. 1978)..................................................... 20

People v. Smith,
63 N.Y.2d 41 (1984).................................................................................... 20

People v. Vining,
28 N.Y.3d 686 (2017).................................................................................. 29

People v. Wesley,
83 N.Y.2d 417 (1994)........................................................................... passim

Reed v. State,
391 A.2d 364 (Md. 1978)............................................................................. 23

Starks v. City of Waukegan,
123 F. Supp. 3d 1036 (N.D. Ill. 2015)........................................................... 21

State v. Alberico,
861 P.2d 192 (N.M. 1993)........................................................................... 14

State v. Coon,
974 P.2d 386 (Alaska 1999)........................................................................... 6

State v. Hull,
788 N.W.2d 91 (Minn. 2010)....................................................................... 17

State v. Sharpe,
SP-7326 (Alaska, Jan. 4 2019)....................................................................... 8

State v. Ward,
694 S.E.2d 738 (N.C. 2010)......................................................................... 16

Sybers v. State,
841 So.2d 532 (Fla. Dist. Ct. App. 2003)...................................................... 22

Statutes & Rules

Federal Rule of Evidence 702....................................................................... 4, 27

Colorado Rule of Evidence 702........................................................................... 6

Other Authorities

David L. Faigman and Claire Lesikar, Organized Common Sense, 64 DePaul L. Rev. 421 (2014)........................................................................................... 13

David H. Kaye, Forensic Science, Statistics & the Law, “The New York City Medical Examiner’s Office ‘Under Fire’ for Low Template DNA Testing,” Sept. 11 2017, http://for-sci-law.blogspot.com/2017/09/the-new-york-city-medical-examiners.html................................................................................. 7

David H. Kaye, et al., The New Wigmore on Evidence, “Limiting Strict Scrutiny by Methodology,” § 9.5.1 (2018).................................................................. 16

DNA Exonerations in the United States, The Innocence Project, https://www.innocenceproject.org/dna-exonerations-in-the-united-states/ (last visited June 26, 2019).................................................................................... 1

Eric S. Lander, Fixing Rule 702: The PCAST Report and Steps to Ensure the Reliability of Forensic Feature-Comparison Methods in Criminal Courts, 86 Fordham L. Rev. 1661 (2018)................................................................. 11, 12

Harry T. Edwards, Solving the Problems That Plague the Forensic Science Community, 50 Jurimetrics 5 (2009)............................................................. 23

James E. Starrs, Frye, v. United States Restructured and Revitalized, 26 Jurimetrics J. 249 (1986)................................................................................ 7

Jane Campbell Moriarty, Deceptively Simple: Framing, Intuition, and Judicial Gatekeeping of Forensic Feature-Comparison Methods Evidence, 86 Fordham L. Rev. 1687 (2018)..................................................................................... 10

Lauren Kirchner, Traces of Crime: How New York’s DNA Techniques Became Tainted, NY Times, Sept. 4, 2017, https://www.nytimes.com/2017/09/04/nyregion/dna-analysis-evidence-new-york-disputed-techniques.html.......................................................... 17, 25, 26

Michael J. Saks, et al., Forensic bitemark identification: weak foundations, exaggerated claims, 3 J. L. Biosciences 538 (2016)......................................... 9

Misapplication of Forensic Science, The Innocence Project, https://innocenceproject.org/causes/misapplication-forensic-science/ (last visited June 26, 2019).................................................................................... 2

National Academy of Sciences, Strengthening Forensic Science in the United States (2009).......................................................................................... 21, 24

Peter W. Huber, Galileo's Revenge: Junk Science in the Courtroom (1991)........ 20

President’s Council of Advisors on Science and Technology, Report to the President: Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods (2016) ………………………………………passim

2. INTEREST OF THE AMICUS CURIAE

The Innocence Project is a national litigation and public policy organization dedicated to providing pro bono legal and related investigative services to indigent prisoners whose actual innocence may be established through post-conviction DNA evidence.  To date, the work of the Innocence Project and affiliated organizations has led to the exoneration of 365 individuals who post-conviction DNA testing has shown were wrongly convicted of crimes they did not commit. . . .

The Innocence Project submits this brief because the issues presented have serious implications for ensuring defendants are not wrongfully convicted through the admission of unreliable forensic science.  The use of unreliable forensic sciences occurs in 45 percent of exonerations of innocent defendants established through post-conviction DNA testing.  . . . .

3. PRELIMINARY STATEMENT

As currently applied in New York, the Frye standard for the admissibility of scientific evidence is susceptible to a level of confusion and complacency that poses a serious risk to the integrity of criminal proceedings in this state.  Therefore, this Court should take steps to provide the lower courts with clear guidance in order to establish an effective, consistent, and fair application of the “general acceptance” test for the admissibility of scientific evidence.  And the Court should remind the trial courts that trial courts must take seriously the responsibility of evaluating contested scientific evidence for reliability, particularly where a defendant’s freedom is at stake.

First, the Court should caution lower courts against rigidly applying “novelty” as a threshold test to bypass further analysis of scientific evidence, and provide specific guidance that underscores how “novelty” in the scientific fields can be a fluid concept.  Second, the Court should reiterate that legal precedent, while a useful tool, cannot be a substitute for examining whether a scientific technique is “generally accepted as reliable by the relevant scientific community.”  In particular, courts should be wary of relying on prior decisions where there is new evidence that the scientific consensus has changed.  Third, the Court should provide guidance on the definition of the “relevant scientific community” that makes clear that the opinions of a few experts, particularly those with financial or professional interest in the proffered methodology, are inadequate to represent the relevant scientific community.  Finally, [omitted].

4. ARGUMENT

I. New York courts applying Frye should not use the “novelty test” to avoid further analysis of scientific evidence.

In seminal cases applying Frye, this Court has discussed the concept of “novelty” only in general terms to explain what scientific evidence courts should evaluate for general acceptability.  See, e.g., People v. Wesley, 83 N.Y.2d 417, 435 (1994) (“[W]here the scientific evidence sought to be presented is novel, the test is that articulated in Frye.”); People v. LeGrand, 8 N.Y.3d 449, 455 (2007) (“[I]n recognition that expert testimony of this nature may involve novel scientific theories and techniques, a trial court may need to determine whether the proffered expert testimony is generally accepted by the relevant scientific community”) (citations omitted).  Many courts have interpreted this language to mean that “novelty” is a threshold question that determines whether scientific evidence is subject to Frye scrutiny at all.  The “novelty test” risks oversimplifying and abusing the concept of “novelty”—which is in fact a wholly fluid concept in science—to forego any real Frye analysis.  On one hand, courts may construe novelty too narrowly and refuse to scrutinize to new changes to an established methodology.  On the other hand, courts may construe novelty too broadly and refuse to scrutinize previously established methodologies that have since lost favor in the scientific community.  Compounding these problems, this Court has not provided guidance on what constitutes “novel” scientific evidence.   

Even where, as here, the underlying scientific theory is generally accepted, parties should be able to challenge truly novel applications of that underlying theory.  See People v. Shreck, 22 P.3d 68, 76 (Colo. 2001) (criticizing courts for not subjecting evidence previously admitted under Frye to new scrutiny, “despite improvements or other developments in scientific technologies”).[1]  This Court has recognized that, where a proposed methodology or hypothesis builds upon established scientific theory, courts must still exercise proper diligence before categorizing the proposed methodology or hypothesis as “not novel” and ending its analysis there. See Wesley, 83 N.Y.2d at 438 (Kaye, J.C., concurring) (finding that the addition of new steps to the traditional process for analyzing DNA, in order to compare two DNA samples, was “truly novel”).  Within the forensic sciences, dozens of new methodologies have emerged, many of which build on other non-novel methodologies.  As forensic sciences continue to innovate, courts must continue to scrutinize those innovations under Frye.

Courts should hold a Frye hearing where the methodology as a whole has not yet been proven reliable, even if some elements of the methodology have been proven reliable.  Some courts, however, have improperly focused on the non-novel elements of a proffered methodology, rather than evaluating the reliability of the methodology as a whole.  For example, in People v. Rodriguez, Ind. No. 5471/2009, Decision and Order (Sup. Ct. N.Y. Cty. May 1, 2012), the District Attorney argued that the likelihood ratios generated by the Forensic Statistical Tool (“FST”) should be admitted because likelihood ratios are not novel.  Id.  The proper focus of Frye inquiry though, is whether the methodology used to calculate the proffered likelihood ratios is generally accepted—not whether, in the abstract, likelihood ratios are a generally accepted statistical concept.  See David H. Kaye, Forensic Science, Statistics & the Law, “The New York City Medical Examiner’s Office ‘Under Fire’ for Low Template DNA Testing,” Sept. 11 2017, http://for-sci-law.blogspot.com/2017/09/the-new-york-city-medical-examiners.html (analogizing the Rodriguez court’s decision to admitting any linear regression model on the grounds that the method of least squares is not novel); see also James E. Starrs, Frye, v. United States Restructured and Revitalized, 26 Jurimetrics J. 249, 254 (1986) (approval of gas chromatographic evidence in one case should not be read as giving “carte blanche approval to all gas chromatographs,” especially as new types of detectors or sampling methods emerge).

At the same time, non-novel forensic techniques that once enjoyed “general acceptance” have since been challenged, or outright discredited, by new scientific developments.  As other Frye jurisdictions have recognized, it cannot be the law that a technique is insulated from new scientific criticism simply because it is not “novel.”  See, e.g., Commonwealth v. Foley, 38 A.3d 882, 888 (Pa. Super. Ct. 2012) (“[N]ovelty is not restricted to new science, and even ‘bedrock’ scientific principles may be subject to a Frye analysis if those principles become disputed.”) (internal quotation marks and citation omitted); Commonwealth v. Shanley, 919 N.E.2d 1254, 1264 n.15 (Mass. 2010) (“[T]he evolving nature of scientific and clinical studies of the brain and memory and the controversy surrounding those studies [on dissociative memory loss] made it prudent for the judge to proceed with a Lanigan hearing in this case.”).  Daubert jurisdictions have also recognized that new scientific evidence may necessitate a new evidentiary hearing.  See, e.g., State v. Sharpe, SP-7326, (Alaska, Jan. 4 2019) at 24 (“If an appellate court has made a Daubert determination and then new scientific research becomes available, or if a litigant identifies research that the appellate court overlooked, the trial court would be justified in holding an evidentiary hearing to make a complete record and rule in the alternative.”).  Similarly, New York courts should also ensure that “non-novel” methodologies and hypotheses continue to be accepted as reliable within the scientific community.  New York courts interpreting Frye, however, often fall short of this benchmark. 

For example, bite mark evidence and hair microscopy have both been effectively discredited.  See, e.g., Ex parte Chaney, 563 S.W.3d 239, 257 (Tex. Crim. App. 2018) (“[T]he body of scientific knowledge underlying the field of bite mark comparisons [has] evolved in a way that discredits almost all the probabilistic bite mark evidence at trial.”) (vacating conviction based on bite mark evidence); PCAST Report at 87 (“PCAST finds that bite mark analysis does not meet the scientific standards for foundational validity, and is far from meeting such standards.”); PCAST Report at 13 (“PCAST’s own review of the cited papers finds that these studies [of human hair comparisons] do not establish the foundational validity and reliability of hair analysis.”).  Yet despite a change in the scientific consensus, both have effectively evaded Frye scrutiny because neither technique is considered “novel.”  See Michael J. Saks, et al., Forensic bitemark identification: weak foundations, exaggerated claims, 3 J. L. Biosciences 538, 541 (2016) (“Despite the lack of empirical evidence to support its claims, to date no court in the United States has excluded [forensic odontology] expert evidence for failing to meet the requisite legal standard for admission of expert testimony.”); People v. Calabro, 161 A.D.2d 375 (1st Dep’t 1990) (finding sufficient evidence of guilt based upon testimony of three forensic odontologists and admission of similar testimony in another case nine years prior, without discussing whether forensic odontology was admissible evidence in the first instance). 

Lower courts faced with questions of where to draw the line between “novelty” and established science have ruled inconsistently.  Compare Marso v. Novak, 42 A.D.3d 377, 378 (1st Dep’t 2007) (granting judgment notwithstanding verdict where plaintiff’s expert could not show that her conclusions were generally accepted, even though the underlying methodology was generally accepted), with People v. Garcia, 39 Misc. 3d 482, 484 (Sup. Ct. Bronx Cty. 2013) (“The application of a generally accepted technique, even though its application in a specific case was unique or modified, does not require a Frye hearing.”).  This Court should remind trial courts to consider potential changes in the scientific consensus; otherwise, the temptation to evade a true Frye inquiry by simply checking the “not novel” box is as strong as it is problematic.  See Jane Campbell Moriarty, Deceptively Simple: Framing, Intuition, and Judicial Gatekeeping of Forensic Feature-Comparison Methods Evidence, 86 Fordham L. Rev. 1687, 1697 (2018) (“Rather than addressing the complexity head on and resolving [the pointed science-based critiques of forensic comparison methods], courts tend to use a variety of analysis-avoiding methods in evaluating the reliability of [forensic comparison method] evidence, even after learning of its shortcomings in the NRC Report.”).

Here, no party is challenging the admissibility of DNA evidence in general, which has been admissible in New York for over 20 years; nor does the Innocence Project suggest that a Frye hearing must be held in every instance of contested scientific evidence.  Rather, the challenges in this case are to two new techniques for analyzing DNA that were not subjected to a Frye hearing to evaluate whether they are generally accepted by the scientific community for the use to which they were put.  In situations like this one, the concept of “novelty” should not be used as an excuse to turn a blind eye to evidence that warrants additional examination. 

Finally, a widely used technique may still be “novel” where its use is primarily in non-scientific communities.  At minimum, use alone is not a proper factor in determining whether to forego a Frye hearing, as it is incumbent upon courts to look “under the hood” of even widely-used forensic methods.  Indeed, many unreliable forensic methods initially find their way into courts through their use as investigative techniques.  PCAST Report at 32 (“[M]any of these difficulties with forensic science may stem from the historical reality that many methods were devised as rough heuristics to aid criminal investigations and were not grounded in the validation practices of scientific research.”). 

The investigative origin of forensic methods poses two problems.  First, “fundamentally, the forensic sciences do not yet have a well-developed ‘research culture.’”  Id.  Although the forensic community has made significant strides to increase its scientific rigor in the past few years, courts should be wary of forensic techniques that are grounded in casework and investigative experience, as opposed to scientific research and knowledge.  See Eric S. Lander, Fixing Rule 702: The PCAST Report and Steps to Ensure the Reliability of Forensic Feature-Comparison Methods in Criminal Courts, 86 Fordham L. Rev. 1661 (2018) (describing how previously untested forensic methods are now undergoing empirical validity testing).[2]  Second, the standard of reliability required for just outcomes may be lower in an investigation, which is by its nature exploratory, than a prosecution, which seeks a final resolution.  See PCAST Report at 4 (“In investigations, insights and information may come from both well-established science and exploratory approaches.  In the prosecution phase, forensic science must satisfy a higher standard.”).  Although a technique’s “use” can serve as a helpful factor in determining whether court should treat it as “novel,” trial courts should be cautious not to conflate use outside of the courtroom with reliability. 

II. New York courts should not mistake legal precedent for an analysis of reliability in evaluating scientific evidence under Frye.

Directly related to the “novelty” inquiry is the role of precedent in Frye litigation.  This Court noted in LeGrand that “[o]nce a scientific procedure has been proved reliable,” scientific evidence may be considered not novel, thereby obviating the need for a Frye hearing.  8 N.Y.3d at 458 (citing Wesley, 83 N.Y.2d at 436 (Kaye, Ch. J., concurring)).  Thus, the test for determining when a Frye hearing should be held is whether prior proceedings have proved the proffered method’s reliability.  Once reliability has been proven, other courts “may take judicial notice of reliability of the general procedure.”  Id. at 458 (emphasis added).  In practice, similar to the problems inherent in the “novelty test,” courts have misconstrued this language and too often used legal precedent as a proxy for scientific acceptance, causing the most critical inquiry—reliability—to get lost in the shuffle.  Therefore, the Court should take this opportunity to provide crucial guidance to courts tasked with applying Frye, and, specifically, to instruct that (1) because science is constantly evolving, courts are not bound forever by a prior court’s Frye ruling; (2) a prior court’s ruling may be evidence of admissibility only where a Frye hearing was actually held; and (3) reliance on a prior court’s ruling may be improper where a party submits new evidence bearing on the challenged technique’s reliability or general acceptance within the scientific community.

Although Frye represents an intersection between law and science, these two fields approach “precedent” in fundamentally different ways.  See David L. Faigman and Claire Lesikar, Organized Common Sense, 64 DePaul L. Rev. 421, 422 (2014) (“[T]here is a basic disconnect between how scientists approach the empirical world and the way courts do so.”).  As this Court itself has recognized, “scientific understanding, unlike a trial record, is not by its nature static; the scientific consensus prevailing at the time of the Frye hearing in a particular case may or may not endure.”  Cornell v. 360 W. 51st St. Realty, LLC, 22 N.Y.3d 762, 786 (2014).  Similarly, the Supreme Court in Daubert acknowledged that, while reliance on precedent is axiomatic in our legal system, “[s]cientific conclusions are subject to perpetual revision.”  Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 596-97 (1993).  Other Frye jurisdictions have reached similar conclusions.  See, e.g., People v. Luna, 989 N.E.2d 655, 670 (Ill. App. Ct. 2013) (“[C]onstant scientific advances in our modern era may affect our inquiry as to the novelty of a particular methodology.”) (internal quotations omitted).  Therefore, when deciding the admissibility of scientific evidence, “courts should not be obliged to defer to past precedents: they should look afresh at the scientific issues.”  PCAST Report at 144.

  While a court may rely on a prior Frye hearing in the interest of judicial economy, a court should not rely on another court’s reliance on a third court’s Frye hearing.  Admissions without Frye hearings are only evidence of judges’ votes, as opposed to scientists’ votes.  See Parker, 7 N.Y.3d, 434, 447 (2006) (“[Frye] emphasizes counting scientists’ votes, rather than on verifying the soundness of a scientific conclusion.” (internal quotation marks omitted) (citing Wesley, 83 N.Y.2d at 439 (Kaye, C.J., concurring); see also State v. Alberico, 861 P.2d 192, 203 (N.M. 1993) (“It is improper to look for scientific acceptance only from reported case law because that amounts to finding a consensus in the legal community based on scientific evidence that is sometimes many years old.”).

When courts admit evidence based upon other courts’ findings without a Frye hearing—as was the case in Foster-Bey regarding the combination of FST and Low Copy Number (“LCN”) DNA evidence—courts compound the illusion that a methodology is generally accepted by the scientific community.  Courts should be wary of recycling prior courts’ decisions, especially when the scientific consensus has shifted.  For example, in People v. Garcia, the trial court cited judicial opinions admitting LCN DNA without a Frye hearing.  39 Misc. 3d at 487.  While the Garcia court correctly pointed out that LCN DNA profiling had been admitted in 125 cases, this did not mean that it had been proven reliable in 125 Frye hearings.  The Illinois Supreme Court recognized a similar species of error in People v. McKown, where the lower appellate court relied on a prior appellate decision that “merely reaffirmed” a third court’s decision to admit horizontal gaze nystagmus (“HGN”) evidence, [3] which itself relied heavily on a fourth court’s Frye hearing.  875 N.E.2d 1029, 1037–38 (Ill. 2007).  The Illinois Supreme Court held that this reliance on precedent was improper, and a Frye hearing should have been held, where the evidence of general acceptance was not “unequivocal or undisputed.”  Id. at 1046.  As evidence of such a dispute, the Illinois Supreme Court cited both more recent opinions from other states’ courts refusing to admit HGN evidence, id. at 1041-46, and more recent scientific articles questioning the reliability of HGN evidence, id. at 1044-47. 

Furthermore, where a trial court does rely on the findings of a previous hearing, that court should be convinced that the hearing was fair and thorough.  “Especially in the early days of a scientific technique, imbalanced hearings are not uncommon.”  David H. Kaye, et al., The New Wigmore on Evidence, “Limiting Strict Scrutiny by Methodology,” § 9.5.1 (2018). 

A number of appellate courts in other states have similarly recognized that trial courts should not blindly accept scientific evidence based on its admission in a prior case.  See, e.g., Coble v. State, 330 S.W.3d 253, 276 n.56 (Tex. Crim. App. 2010) (“[C]ourts do not ‘grandfather in’ expert testimony in a particular field or by a particular witness simply because the court has admitted expert testimony in that field or by that witness in the past.”); Shanley, 919 N.E.2dat 1264 n.15 (“[W]e have not ‘grandfathered’ any particular theories or methods for all time, especially in areas where knowledge is evolving.”); Chesson v. Montgomery Mutual Ins. Co., 75 A.3d 932, 938 (Md. 2013) (“Even scientific techniques once considered to be generally accepted are excluded when subsequent scientific studies bring their reliability and validity into question and show a fundamental controversy within the relevant scientific community.”); State v. Ward, 694 S.E.2d 738, 746 (N.C. 2010) (“[T]he length of time a method has been employed does not necessarily heighten its reliability or alleviate our concerns.”); c.f., State v. Hull, 788 N.W.2d 91, 103 n.3 (Minn. 2010) (noting that the “lengthy use of a method by law enforcement, and even lengthy unquestioning acceptance by courts, does not [by itself] exempt expert evidence from scrutiny under the first prong of Frye-Mack”) (alteration in original).

Published case law can provide a valuable tool in determining whether a scientific technique that was previously subjected to a Frye hearing is still generally accepted by the scientific community.  Courts, however, should be instructed not to lose sight of the fact that the Frye test emphasizes counting scientists’—not judges’—votes.  While published legal opinions may sit unaltered for decades, science is a field of ever-evolving developments.  Therefore, courts must be conscious of this fact and not simply admit evidence because previous courts have. 

In this case, none of courts cited by the trial court had ever subjected the contested evidence to a Frye hearing.  The trial court itself acknowledged that FST has never been subject to a Frye hearing, even while relying on other courts’ blind acceptance of that technique to support its own determination.  People v. Foster-Bey, 158 A.D.3d 641, 641 (2d Dep’t 2018).  In addition, the Office of Chief Medical Examiner (“OCME”), which introduced the contested evidence, no longer uses LCN or FST.  See Lauren Kirchner, Traces of Crime: How New York’s DNA Techniques Became Tainted, NY Times, Sept. 4, 2017, https://www.nytimes.com/2017/09/04/nyregion/dna-analysis-evidence-new-york-disputed-techniques.html. 

Thus, this case serves as a prime example of the dangers of a trial court deciding to use legal precedent as a substitute for its own determination of whether a technique is “generally accepted as reliable in the scientific community.”  Parker, 7 N.Y.3d at 449.  In light of the above, this Court should seize this opportunity to provide much-needed guidance on the appropriate use of precedent and under what circumstances reconsideration of previously-admitted scientific evidence is warranted under Frye.  As discussed in Section 4, infra, the adoption of Daubert principles, including encouraging courts to look to factors beyond “acceptability”—such as whether the technique in question can and has been tested, has been subjected to peer review, and has known or potential error rates—would further this objective.

III.This Court should provide guidance on the appropriate scope of the “relevant scientific community.”

In order to admit scientific evidence under Frye, a party must show that the evidence is generally accepted as reliable by the “relevant scientific community.”  As with “novelty,” this Court has not provided guidance to lower courts on how to interpret the “relevant scientific community” standard, leading to disparate and anomalous results.  Compare Garcia, 39 Misc. 3d at 487-88 (admitting testimony concerning LCN and FST based on studies conducted by the OCME despite the fact that it is the only government facility using these techniques), with People v. Collins, 49 Misc. 3d 595, 611, 613, 616, 618 (Sup. Ct. Kings Cty. 2015) (finding that the OCME’s research validating LCN and FST cannot establish general acceptance when no other laboratory uses these techniques as evidence in criminal cases).  Frye requires a careful balancing act when it comes to assessing the composition of the relevant community.  Because it is a general acceptance test, acceptance need not be universal; however, a court’s job must not end upon a finding of mere acceptance in the form of a single proponent of a technique. See, e.g., Cornell, 22 N.Y.3d at 783 (A showing that an expert’s opinion has “some support” is insufficient to establish general acceptance in the relevant scientific community). 

Here, the OCME, which developed the methodology in question, is the only entity in the United States that used the scientific techniques at issue to develop and analyze DNA profiles for criminal cases.  Collins, 49 Misc. 3d at 611, 618.  Moreover, the OCME is the only entity that used FST for any purpose.  Id.  Under these facts, it is likely that the trial court here did as Chief Judge Kaye cautioned against in Wesley: conflated the “judgment of the scientific community” with “the opinion of a few experts.”  Wesley, 83 N.Y.2d at 438 (Kaye, C.J., concurring). 

Despite this cautionary language, many courts have allowed small groups of experts who support a given technique to define themselves as the relevant scientific community, thus guaranteeing general acceptance.  One commentator referred to this practice as “gerrymandering” to create a majority by defining the scientific community “narrowly and uncritically.”  Peter W. Huber, Galileo's Revenge: Junk Science in the Courtroom 15 (1991).  For instance, in the case of now-discredited bite mark identification evidence, some courts have defined the relevant scientific community as the forensic dentists themselves, i.e., those whose careers are largely dependent on the validity of such evidence.  See, e.g., People v. Smith, 63 N.Y.2d 41, 63 (1984) (basing admission on the claim that the technique of comparing one photo of a bite mark to another was sufficiently reliable and had been “accepted by the scientific community,” comprised of prosecution and defense experts who together “acknowledged the reliability and acceptance of photographic comparisons”); People v. Slone, 76 Cal. App. 3d 611, 624-25 (Cal. Ct. App. 1978) (relying on testimony of three forensic odontologists which showed “bite-mark-identification technique had gained general acceptance in the scientific community of dentistry—the relevant scientific community involved”). 

By contrast, one federal court, considering the scientific validity of bite mark analysis in a civil suit against forensic dentists, brought by Benny Starks, who served over twenty years in prison after a bitemark “match” was used to convict him of a rape he did not commit, observed:

Starks argues that Dentist Defendants’ bite mark “analysis” was so far outside the norms of bite mark matching, such as they were in 1986, that it violated due process. For this assertion, Starks relies on the opinion of Senn, a forensic odontologist himself who has testified as a bite mark expert in many criminal cases. Doc. 313-20 at 48-50 (Senn’s CV). Eighty years ago, Upton Sinclair observed: “It is difficult to get a man to understand something, when his salary depends upon his not understanding it!” Upton Sinclair, I, Candidate for Governor: And How I Got Licked 109 (Univ. of Calif. Press 1994) (1935). Illustrating Sinclair’s point, Senn opines not that bite mark matching is inherently unreliable, but only that Dentist Defendants made analytical errors and overstated their conclusions in Starks’s criminal case.

Starks v. City of Waukegan, 123 F. Supp. 3d 1036, 1051-52 (N.D. Ill. 2015) (internal citations omitted).  The court went on to cite the National Academy of Sciences’s (“NAS”) observation, also relevant here, that “[a]lthough the majority of forensic odontologists are satisfied that bite marks can demonstrate sufficient detail for positive identification, no scientific studies support this assessment.”  Id. (quoting National Academy of Sciences, Strengthening Forensic Science in the United States 176 (2009)) (emphasis in original).

A broader view of the relevant scientific community is particularly important where certain experts, like the dentists discussed in Starks, have a vested interest in promoting a particular technique.  “If the field is too narrowly defined,” Chief Judge Kaye observed, “the judgment of the scientific community will devolve into the opinion of a few experts.  The field must still include scientists who would be expected to be familiar with the particular use of the evidence at issue, however, whether through actual or theoretical research.”   Wesley, 83 N.Y.2d at 438-39 (Kaye, J.C., concurring) (citation omitted).  “A Frye court should be particularly cautious when . . . the supporting research is conducted by someone with a professional or commercial interest in the technique.”  Id. at 440.  Indeed, the court in the original Frye decision, in examining the admissibility of systolic blood pressure deception testing, did not limit its view of the relevant scientific community to polygraph experts, but rather held that the technique had not gained general acceptance because it had “not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made.” Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923) (emphasis added).

Other jurisdictions have similarly recognized that courts should look to outside, disinterested experts with experience in the relevant field to confirm that such experts also accept those theories.  See, e.g., Sybers v. State, 841 So.2d 532, 543 (Fla. Dist. Ct. App. 2003) (“such assertions [that a technique is generally accepted] by experts who developed and performed the testing procedures are not, alone, sufficient.”); State ex rel. Collins v. Superior Court, 644 P.2d 1266, 1285 (Ariz. 1982) (“This requirement is not satisfied with testimony from a single expert or group of experts who personally believe the challenged procedure is accepted or is reliable.”); Reed v. State, 391 A.2d 364, 382 (Md. 1978) (“In general, members of the relevant scientific community will include those whose scientific background and training are sufficient to allow them to comprehend and understand the process and form a judgment about it”); Contreras v. State, 718 P.2d 129, 135 (Alaska 1986) (“We define the relevant scientific community as the academic, scientific, and medical or health-care professions which have studied and/or utilized hypnosis for clinical, therapeutic, research and investigative applications.”).  As such, this Court should instruct lower courts that under Frye, the “relevant scientific community” must be sufficiently broad as to include disinterested scientists with experience in related fields.

Courts should be wary of defining the “relevant scientific community” too narrowly where experts have a professional or pecuniary interest not only in the validity of a methodology, but also in the ultimate disposition of the case.  For example, Judge Edwards has warned that a close relationship between forensic scientists and law enforcement administrators may “inhibit good science and ultimately adversely affect the credibility of the field.”  Harry T. Edwards, Solving the Problems That Plague the Forensic Science Community, 50 Jurimetrics 5, 15 (2009); see also PCAST Report at 13-14 (to avoid potential bias and other issues, scientific evaluations are “best carried out by a science-based agency that is not itself involved in the application of forensic science within the legal system”).  Indeed, the Supreme Court in Melendez-Diaz rejected the State of Massachusetts’s arguments that forensic science was inherently “neutral” or “reliable.”  Melendez-Diaz v. Massachusetts, 557 U.S. 305, 318 (2009) (“Because forensic scientists often are driven in their work by a need to answer a particular question related to the issues of a particular case, they sometimes face pressure to sacrifice appropriate methodology for the sake of expediency.”) (quoting National Academy of Sciences, Strengthening Forensic Science in the United States 23–24 (2009)); see also Edwards, supra, at 19 (characterizing Melendez-Diaz as “a not very subtle indictment of our existing forensic science system”).  This Court similarly recognized the potential biases of forensic DNA analysts in People v. John.  27 N.Y.3d 294, 311 (2016) (“We will not indulge in the science fiction that DNA evidence is merely machine-generated, a concept that reduces DNA testing to an automated exercise requiring no skill set or application of expertise or judgment.”).

Likewise, enhanced scrutiny in defining the “relevant scientific community” might be appropriate where the proffered evidence relies on scientific techniques that are so new that the scientific community has not had a chance to determine whether to accept them.  Wesley, 83 N.Y.2d at 439 (Kaye, C.J., concurring) (“[A]bsence of controversy reflected not the endorsement perceived by our colleagues, but the prematurity of admitting this evidence. Insufficient time had passed for competing points of view to emerge.”).  Because the Frye test “emphasizes counting scientists’ votes, rather than on verifying the soundness of a scientific conclusion,” courts cannot determine whether a novel technique is generally accepted before scientists have been given enough time and information to decide how to cast their votes.  Parker, 7 N.Y.3d at 447 (internal quotation marks omitted) (citing Wesley, 83 N.Y.2d at 439 (Kaye, C.J., concurring).  That is not to say that recently introduced methodologies should be categorically rejected, but rather, that courts should recognize instances where “counting scientists votes” alone does not necessarily serve as an accurate proxy for reliability, such as where there has been insufficient time to establish a robust enough “community.”  

[omitted]

IV. New York’s interest in effectively scrutinizing scientific evidence for reliability could be aided by using the factors discussed in Daubert to conduct a Frye

[omitted]

CONCLUSION

For the reasons discussed herein, the time has come for this Court to speak on issues that have led to inconsistent and problematic results among courts when evaluating proffered scientific evidence under Frye.  This case provides an ideal opportunity for this Court to provide guidance that emphasizes the critical role of the courts in gatekeeping against evidence based on “novel” methodologies and hypotheses that have not yet been proven to be reliable, as well as previously accepted methodologies and hypotheses that have since been discredited by new scientific developments.  Incorporating the principles underlying the Daubert standard, which has been embraced by 40 states, would be a particularly effective tool to help courts bring Frye into the future.  Only with such guidance will courts achieve greater effectiveness, consistency, and fairness in their treatment of the admissibility of scientific evidence.     

Dated:         [, 2019]
                   New York, NY

                                                          Respectfully submitted,

                                                          ________________________________

CERTIFICATION

          I certify pursuant to §500.13(c) of the Rules of Practice of this Court that the total word count for all printed text in the body of the brief is 6,936 words.

Dated:         [, 2019]
                   New York, NY

                                                Respectfully submitted,

                                                          ___________________________________

                                                By:    Konrad Cailteux

[1] For this reason, the Colorado Supreme Court in Shreck rejected the Frye standard in favor of Colorado Rule of Evidence 702, which emphasizes “reliability and relevance of the scientific evidence.”  Id. at 78.  Other state supreme courts have also criticized Frye’s novelty test in adopting Daubert.  See, e.g., State v. Coon, 974 P.2d 386, 397–98 (Alaska 1999) (finding that Frye’s limitation to “novel” scientific evidence is not an advantage to Daubert’s application to “all scientific knowledge”), abrogated on other grounds by State v. Sharpe, 435 P.3d 887, 899 (Alaska 2019).

[2] Courts should also be wary of experts overstating the accuracy of otherwise reliable methods.  For example, Professor Lander describes how fingerprint identifications, once described by the Department of Justice as “infallible,” have since been shown to have a real world error rate as high as 1 in 24.  Lander, Fixing Rule 702, 86 Fordham L. Rev. at 1669–71.

[3] A type of field sobriety test that measures a subject’s eye movements as they track an object moving side to side.

Please go to our Moodle Page and under "Class 3" you will find the prompt and submission folder for Writing Reflection #3.

This chapter covers rule 702 and the Supreme Court's decision in Daubert. If you do not have the Merritt & Simmons textbook you can access the chapter on Moodle under "Class 4."

. . .

A. Brave New World

Federal judges ruling on the admissibility of expert scientific testimony face a far more complex and daunting task in a postDaubert world than before. The judge’s task under Frye is relatively simple: to determine whether the method employed by the experts is generally accepted in the scientific community. Solomon, 753 F.2d at 1526. Under Daubert, we must engage in a difficult, two-part analysis. First, we must determine nothing less than whether the experts’ testimony reflects “scientific knowledge,” whether their findings are “derived by the scientific method,” and whether their work product amounts to “good science.” — U.S. at -, -, 113 S.Ct. at 2795, 2797. Second, we must ensure that the proposed expert testimony is “relevant to the task at hand,” id. at -, 113 S.Ct. at 2797, i.e., that it logically advances a material aspect of the proposing party’s ease. The Supreme Court referred to this second prong of the analysis as the “fit” requirement. Id. at -, 113 S.Ct. at 2796.

The first prong of Daubert puts federal judges in an uncomfortable position. The question of admissibility only arises if it is first established that the individuals whose testimony is being proffered are experts in a particular scientific field; here, for example, the Supreme Court waxed eloquent on the impressive qualifications of plaintiffs’ experts. Id. at - n. 2, 113 S.Ct. at 2791 n. 2. Yet something doesn’t become “scientific knowledge” just because it’s uttered by a *1316scientist; nor can an expert’s self-serving assertion that his conclusions were “derived by the scientific method” be deemed conclusive, else the Supreme Court’s opinion could have ended with footnote two. As we read the Supreme Court’s teaching in Daubert, therefore, though we are largely untrained in science and certainly no match for any of the witnesses whose testimony we are reviewing, it is our responsibility to determine whether those experts’ proposed testimony amounts to “scientific knowledge,” constitutes “good science,” and was “derived by the scientific method.”

The task before us is more daunting still when the dispute concerns matters at the very cutting edge of scientific research, where fact meets theory and certainty dissolves into probability. As the record in this case illustrates, scientists often have vigorous and sincere disagreements as to what research methodology is proper,- what should be accepted as sufficient proof for the existence of a “fact,” and whether information derived by a particular method can tell us anything useful about the subject under study.

Our responsibility, then, unless we badly misread the Supreme Court’s opinion, is to resolve disputes among respected, well-ere-dentialed scientists about matters squarely within their expertise, in areas where there is no scientific consensus as to what is and what is not “good science,” and occasionally to reject such expert testimony because it was not “derived by the scientific method.” Mindful of our position in the hierarchy of the federal judiciary, we take a deep breath and proceed with this heady task.

B. Deus ex Machina

The Supreme Court’s opinion in Daubert focuses closely on the language of Fed. R.Evid. 702, which permits opinion testimony by experts as to matters amounting to “scientific ... knowledge.” The Court recognized, however, that knowledge in this context does not mean absolute certainty. — U.S. at -, 113 S.Ct. at 2795. Rather, the Court said, “in order to qualify as ‘scientific knowledge,’ an inference or assertion must be derived by the scientific method.” Id. Elsewhere in its opinion, the Court noted that Rule 702 is satisfied where the proffered testimony is “based on scientifically valid principles.” Id. at -, 113 S.Ct. at 2799. Our task, then, is to analyze not what the experts say, but what basis they have for saying it.

Which raises the question: How do we figure out whether scientists have derived their findings through the scientific method or whether their testimony is based on scientifically valid principles? Each expert proffered by the plaintiffs assures us that he has “utiliz[ed] the type of data that is generally and reasonably relied upon by scientists” in the relevant field, see, e.g., Newman Aff. at 5, and that he has “utilized the methods and methodology that would generally and reasonably be accepted” by people who deal in these matters, see, e.g., Gross Aff. at 5. The Court held, however, that federal judges perform a “gatekeeping role,” Daubert, — U.S. at -, 113 S.Ct. at 2798; to do so they must satisfy themselves that scientific evidence meets a certain standard of reliability before it is admitted. This means that the expert’s bald assurance of validity is not enough. Rather, the party presenting the expert must show that the expert’s findings are based on sound science, and this will require some objective, independent validation of the expert’s methodology.

While declining to set forth a “definitive checklist or test,” id. at -, 113 S.Ct. at 2796, the Court did list several factors federal judges can consider in determining whether to admit expert scientific testimony under Fed.R.Evid. 702: whether the theory or technique employed by the expert is generally accepted in the scientific community; whether it’s been subjected to peer review and publication; whether it can be and has been tested; and whether the known or potential rate of error is acceptable. Id. at -, 113 S.Ct. at 2796-97.3 We read these *1317factors as illustrative rather than exhaustive; similarly, we do not deem each of them to be equally applicable (or applicable at all) in every ease.4 Rather, we read the Supreme Court as instructing us to determine whether the analysis undergirding the experts’ testimony falls within the range of accepted standards governing how scientists conduct their research and reach their conclusions.

One very significant fact to be considered is whether the experts are proposing to testify about matters growing naturally and directly out of research , they have conducted independent of the litigation, or whether they have developed their opinions expressly for purposes of testifying. That an expert testifies for money does not necessarily cast doubt on the reliability of his testimony, as few experts appear in court merely as an eleemosynary gesture. But in determining whether proposed expert testimony amounts to good science, we may not ignore the fact that a scientist’s normal workplace is the lab or the field, not the courtroom or the lawyer’s office.5

That an expert testifies based on research he has conducted independent of the litigation provides important, objective proof that the research comports with the dictates of good science. See Peter W. Huber, Galileo’s Revenge: Junk Science in the Courtroom 206-09 (1991) (describing how the prevalent practice of expert-shopping leads to bad science). For one thing, experts whose findings flow from existing research are less likely to have been biased toward a particular conclusion by the promise of remuneration; when an expert prepares reports and findings before being hired as a witness, that record will limit the degree to which he can tailor his testimony to serve a party’s interests. Then, too, independent research carries its own indicia of reliability, as it is conducted, so to speak, in the usual course of business and must normally satisfy a variety of standards to attract funding and institutional support. Finally, there is usually a limited number of scientists actively conducting research on the very subject that is germane to a particular case, which provides a natural constraint, on parties’ ability to shop for experts who will come to the desired conclusion. That the testimony proffered by an expert is based directly on legitimate, preexisting research unrelated to the litigation provides the most persuasive basis for concluding that the opinions he expresses were “derived by the scientific method.”

We have examined carefully the affidavits proffered by plaintiffs’ experts, as well as the testimony from prior trials that plaintiffs have introduced in support of that testimony, and find that none of the experts based his testimony on preexisting or independent research. While plaintiffs’ scientists are all experts in their respective fields, none claims to have studied the effect of Bendectin on limb reduction defects before being hired to testify in this or related cases.

If the proffered expert testimony is not based on independent research, the party *1318proffering it must come forward with other objective, verifiable evidence that the testimony is based on “scientifically valid principles.” One means of showing this is by proof that the research and analysis supporting the proffered conclusions have been subjected to normal scientific scrutiny through peer review and publication.6 Huber, Galileo’s Revenge at 209 (suggesting that “[t]he ultimate test of [a scientific expert’s] integrity is her readiness to publish and be damned”).

Peer review and publication do not, of course, guarantee that the conclusions reached are correct; much published scientific research is greeted with intense skepticism and is not borne out by further research. But the test under Daubert is not the correctness of the expert’s conclusions but the soundness of his methodology. See n. 11 infra. That the research is accepted for publication in a reputable scientific journal after being subjected to the usual rigors of peer review is a significant indication that it is taken seriously by other scientists, i.e., that it meets at least the minimal criteria of good science. Daubert, — U.S. at -, 113 S.Ct. at 2797 (“[Scrutiny of the scientific community is a component of ‘good science.’”). If nothing else, peer review and publication “increase the likelihood that substantive flaws in methodology will be detected.” Daubert, — U.S. at -, 113 S.Ct. at 2797.7

Bendectin litigation has been pending in the courts for over a decade, yet the only review the plaintiffs’ experts’ work has received has been by judges and juries, and the only place their theories and studies have been published is in the pages of federal and state reporters.8 None of the plaintiffs’ experts has published his work on Bendectin in a scientific journal or solicited formal review by his colleagues. Despite the many years the controversy has been brewing, no one in the scientific community — except defendant’s experts — has deemed these studies worthy of verification, refutation or even comment. It’s as if there were a tacit understanding within the scientific community that what’s going on here is not science at all, but litigation.9

Establishing that an expert’s proffered testimony grows out of pre-litigation research or that the expert’s research has been subjected to peer review are the two principal ways the proponent of expert testimony can show that the evidence satisfies the first prong of Rule 702.10 Where such evidence is *1319unavailable, the proponent of expert scientific testimony may attempt to satisfy its burden through the testimony of its own experts. For such a showing to be sufficient, the experts must explain precisely how they went about reaching their conclusions and point to some objective source — a learned treatise, the policy statement of a professional association, a published article in a reputable scientific journal or the like — to show that they have followed the scientific method, as it is practiced by (at least) a recognized minority of scientists in their field. See United States v. Rincon, 28 F.3d 921, 924 (9th Cir.1994) (research must be described “in sufficient detail that the district court [can] determine if the research was scientifically valid”).11

Plaintiffs have made no such showing. . . . 

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert's opinion reflects a reliable application of the principles and methods to the facts of the case.

Changes to Rule 702. Testimony by Expert Witnesses [new language in bold; exliminated language in strikethrough]

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.

Committee Notes on Rules—2023 Amendment

Rule 702 has been amended in two respects:

(1) First, the rule has been amended to clarify and emphasize that expert testimony may not be admitted unless the proponent demonstrates to the court that it is more likely than not that the proffered testimony meets the admissibility requirements set forth in the rule. See Rule 104(a). This is the preponderance of the evidence standard that applies to most of the admissibility requirements set forth in the evidence rules. See Bourjaily v. United States, 483 U.S. 171, 175 (1987) (“The preponderance standard ensures that before admitting evidence, the court will have found it more likely than not that the technical issues and policy concerns addressed by the Federal Rules of Evidence have been afforded due consideration.”); Huddleston v. United States, 485 U.S. 681, 687 n.5 (1988) (“preliminary factual findings under Rule 104(a) are subject to the preponderance-of-theevidence standard”). But many courts have held that the critical questions of the sufficiency of an expert’s basis, and the application of the expert’s methodology, are questions of weight and not admissibility. These rulings are an incorrect application of Rules 702 and 104(a).

There is no intent to raise any negative inference regarding the applicability of the Rule 104(a) standard of proof for other rules. The Committee concluded that emphasizing the preponderance standard in Rule 702 specifically was made necessary by the courts that have failed to apply correctly the reliability requirements of that rule. Nor does the amendment require that the court make a finding of reliability in the absence of objection.

The amendment clarifies that the preponderance standard applies to the three reliability-based requirements added in 2000—requirements that many courts have incorrectly determined to be governed by the more permissive Rule 104(b) standard. But it remains the case that other admissibility requirements in the rule (such as that the expert must be qualified and the expert’s testimony must help the trier of fact) are governed by the Rule 104(a) standard as well.

Some challenges to expert testimony will raise matters of weight rather than admissibility even under the Rule 104(a) standard. For example, if the court finds it more likely than not that an expert has a sufficient basis to support an opinion, the fact that the expert has not read every single study that exists will raise a question of weight and not admissibility. But this does not mean, as certain courts have held, that arguments about the sufficiency of an expert’s basis always go to weight and not admissibility. Rather it means that once the court has found it more likely than not that the admissibility requirement has been met, any attack by the opponent will go only to the weight of the evidence.

It will often occur that experts come to different conclusions based on contested sets of facts. Where that is so, the Rule 104(a) standard does not necessarily require exclusion of either side’s experts. Rather, by deciding the disputed facts, the jury can decide which side’s experts to credit. “[P]roponents ‘do not have to demonstrate to the judge by a preponderance of the evidence that the assessments of their experts are correct, they only have to demonstrate by a preponderance of evidence that their opinions are reliable. . . . The evidentiary requirement of reliability is lower than the merits standard of correctness.’” Advisory Committee Note to the 2000 amendment to Rule 702, quoting In re Paoli R.R. Yard PCB Litigation, 35 F.3d 717, 744 (3d Cir. 1994).

Rule 702 requires that the expert’s knowledge “help” the trier of fact to understand the evidence or to determine a fact in issue. Unfortunately, some courts have required the expert’s testimony to “appreciably help” the trier of fact. Applying a higher standard than helpfulness to otherwise reliable expert testimony is unnecessarily strict.

(2) Rule 702(d) has also been amended to emphasize that each expert opinion must stay within the bounds of what can be concluded from a reliable application of the expert’s basis and methodology. Judicial gatekeeping is essential because just as jurors may be unable, due to lack of specialized knowledge, to evaluate meaningfully the reliability of scientific and other methods underlying expert opinion, jurors may also lack the specialized knowledge to determine whether the conclusions of an expert go beyond what the expert’s basis and methodology may reliably support.

The amendment is especially pertinent to the testimony of forensic experts in both criminal and civil cases. Forensic experts should avoid assertions of absolute or one hundred percent certainty—or to a reasonable degree of scientific certainty—if the methodology is subjective and thus potentially subject to error. In deciding whether to admit forensic expert testimony, the judge should (where possible) receive an estimate of the known or potential rate of error of the methodology employed, based (where appropriate) on studies that reflect how often the method produces accurate results. Expert opinion testimony regarding the weight of feature comparison evidence (i.e., evidence that a set of features corresponds between two examined items) must be limited to those inferences that can reasonably be drawn from a reliable application of the principles and methods. This amendment does not, however, bar testimony that comports with substantive law requiring opinions to a particular degree of certainty.

Nothing in the amendment imposes any new, specific procedures. Rather, the amendment is simply intended to clarify that Rule 104(a)’s requirement applies to expert opinions under Rule 702. Similarly, nothing in the amendment requires the court to nitpick an expert’s opinion in order to reach a perfect expression of what the basis and methodology can support. The Rule 104(a) standard does not require perfection. On the other hand, it does not permit the expert to make claims that are unsupported by the expert’s basis and methodology.

Please go to our Moodle Page and under "Class 4" you will find the prompt and submission folder for Writing Reflection #4.

1. Proposed Amendment to Rule 702, for Final Approval

The Committee has been researching and discussing the possibility of an amendment to Rule 702 for five years. The project began with a Symposium on forensic experts and Daubert, held at Boston College School of Law in October, 2017. That Symposium addressed, among other things, the challenges to forensic evidence raised in a report by the President’s Council of Advisors on Science and Technology. A Subcommittee on Rule 702 was appointed to consider possible treatment of forensic experts, as well as the weight/admissibility question discussed below. The Subcommittee, after extensive discussion, recommended against certain courses of action. The Subcommittee found that: 1) It would be difficult to draft a freestanding rule on forensic expert testimony, because any such amendment would have an inevitable and problematic overlap with Rule 702; and 2) It would not be advisable to set forth detailed requirements for forensic evidence either in text or Committee Note because such a project would require extensive input from the scientific community, and there is substantial debate about what requirements are appropriate.

The full Committee agreed with these suggestions. But the Subcommittee did express interest in considering an amendment to Rule 702 that would focus on one important aspect of forensic expert testimony --- the problem of overstating results (for example, an expert claiming that her opinion has a “zero error rate”, where that conclusion is not supportable by the expert’s methodology). The Committee heard extensively from DOJ on the important efforts it is now employing to regulate the testimony of its forensic experts, and to limit possible overstatement.

The Committee considered a proposal to add a new subdivision (e) to Rule 702 that would essentially prohibit any expert from drawing a conclusion overstating what could actually be concluded from a reliable application of a reliable methodology. But a majority of the members decided that the amendment would be problematic, because Rule 702(d) already requires that the expert must reliably apply a reliable methodology. If an expert overstates what can be reliably concluded (such as a forensic expert saying the rate of error is zero) then the expert’s opinion should be excluded under Rule 702(d). The Committee was also concerned about the possible unintended consequences of adding an overstatement provision that would be applied to all experts, not just forensic experts.

The Committee, however, unanimously favored a slight change to existing Rule 702(d) that would emphasize that the court must focus on the expert’s opinion, and must find that the opinion actually proceeds from a reliable application of the methodology. The Committee unanimously approved a proposal—released for public comment in August, 2021--- that would amend Rule 702(d) to require the court to find that “the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.” As the Committee Note elaborates: “A testifying expert’s opinion must stay within the bounds of what can be concluded by a reliable application of the expert’s basis and methodology.” The language of the amendment more clearly empowers the court to pass judgment on the conclusion that the expert has drawn from the methodology. Thus the amendment is consistent with General Electric Co., v. Joiner, 522 U.S. 136 (1997), in which the Court declared that a trial court must consider not only the expert’s methodology but also the expert’s conclusion; that is because the methodology must not only be reliable, it must be reliably applied.

Finally, the Committee resolved to respond to the fact that many courts have declared that the reliability requirements set forth in Rule 702(b) and (d) --- that the expert has relied on sufficient facts or data and has reliably applied a reliable methodology --- are questions of weight and not admissibility, and more broadly that expert testimony is presumed to be admissible. These statements misstate Rule 702, because its admissibility requirements must be established to a court by a preponderance of the evidence. The Committee concluded that in a fair number of cases, the courts have found expert testimony admissible even though the proponent has not satisfied the Rule 702(b) and (d) requirements by a preponderance of the evidence --- essentially treating these questions as ones of weight rather than admissibility, which is contrary to the Supreme Court’s holdings that under Rule 104(a), admissibility requirements are to be determined by court under the preponderance standard.

Initially, the Committee was reluctant to propose a change to the text of Rule 702 to address these mistakes as to the proper standard of admissibility, in part because the preponderance of the evidence standard applies to almost all evidentiary determinations, and specifying that standard in one rule might raise negative inferences as to other rules. But ultimately the Committee unanimously agreed that explicitly weaving the Rule 104(a) standard into the text of Rule 702 would be a substantial improvement that would address an important conflict among the courts. While it is true that the Rule 104(a) preponderance of the evidence standard applies to Rule 702 as well as other rules, it is with respect to the reliability requirements of expert testimony that many courts are misapplying that standard. Moreover, it takes some effort to determine the applicable standard of proof --- Rule 104(a) does not mention the applicable standard of proof, requiring a resort to case law. And while Daubert mentions the standard, Daubert does so only in a footnote in the midst of much discussion about the liberal standards of the Federal Rules of Evidence. Consequently, the Committee unanimously approved an amendment for public comment that would explicitly add the preponderance of the evidence standard to Rule 702(b)-(d). The language of the proposal released for public comment required that “the proponent has demonstrated by a preponderance of the evidence” that the reliability requirements of Rule 702 have been met. The Committee Note to the proposal made clear that there is no intent to raise any negative inference regarding the applicability of the Rule 104(a) standard of proof to other rules --- emphasizing that incorporating the preponderance standard into the text of Rule 702 was made necessary by the decisions that have failed to apply it to the reliability requirements of Rule 702.

More than 500 comments were received on the proposed amendments to Rule 702. In addition, a number of comments were received at a public hearing held on the rule. Many of the comments were opposed to the amendment, and almost all of the fire was directed toward the term “preponderance of the evidence.” Some thought that “preponderance of the evidence” would limit the court to considering only admissible evidence at the Daubert hearing. Others thought that the term represented a shift from the jury to the judge as factfinder. By contrast, commentators who supported the amendment argued that the amendment should go further and clarify that it is the court, not the jury, that decides admissibility.

The Committee carefully considered the public comments. The Committee does not agree that the preponderance of the evidence standard would limit the court to considering only admissible evidence; the plain language of Rule 104(a) allows the court deciding admissibility to consider inadmissible evidence. Nor did the Committee believe that the use of the term preponderance of the evidence would shift the factfinding role from the jury to the judge, for the simple reason that, when it comes to making preliminary determinations about admissibility, the judge is and always has been a factfinder.

But while disagreeing with these comments, the Committee recognized that it would be possible to replace the term “preponderance of the evidence” with a term that would achieve the same purpose while not raising the concerns (valid or not) mentioned by many commentators. The Committee unanimously agreed to change the proposal as issued for public comment to provide that the proponent must establish that it is “more likely than not” that the reliability requirements are met. This standard is substantively identical to “preponderance of the evidence” but it avoids any reference to “evidence” and thus addresses the concern that the term “evidence” means only admissible evidence.

The Committee was also convinced by the suggestion in the public comment that the rule should clarify that it is the court and not the jury that must decide whether it is more likely than not that the reliability requirements of the rule have been met. Therefore, the Committee unanimously agreed with a change requiring that the proponent establish “to the court” that it is more likely than not that the reliability requirements have been met. The proposed Committee Note was amended to clarify that nothing in amended Rule 702 requires a court to make any findings about reliability in the absence of a proper objection.

With those changes, and a few stylistic and corresponding changes to the Committee Note, the Committee unanimously voted in favor of adopting the amendments to Rule 702, for final approval.

At the Spring 2022 meeting, the Committee unanimously gave final approval to the proposed amendment to Rule 702. The Committee recommends that the proposed amendment, and the accompanying Committee Note, be approved by the Standing Committee and referred to the Judicial Conference.

The proposed amendment to Rule 702, together with the proposed Committee Note, GAP report, summary of public comment, and summary of the public hearing, is attached to this Report.

This document is posted on Moodle under "Class 5."

This study of 400 judges demonstrates how poorly many judges understand at least four of the five Daubert factors. I highlighted the assigned text (which you will find on pages 438, 444-45, 447-48, 452-53, & 455).

Please go to our Moodle Page and under "Class 5" you will find the prompt and submission folder for Writing Reflection #5.

This case (available at this link) demonstrates what can happen when a judge considers the scientific method. It is an unusual case for many reasons, not least of which is the inclusion of a visual aid

Read any one of these three short lists of the characteristics of science:

Ten Characteristics of Scientific Research or Knowledge 

Five Characteristics of the Scientific Method 

Nine Characteristics of Scientific Research 

Please go to our Moodle Page and under "Class 7" you will find the prompt and submission folder for Writing Reflection #7 (it's a practice quiz).