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The Best Insurance against Miscarriages of Justice Caused by

Junk Science: An Admissibility Test that is Scientifically
and Legally Sound

Edward J. Imwinkelried

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 THE BEST INSURANCE AGAINST MISCARRIAGES OF JUSTICE CAUSED BY JUNK
SCIENCE: AN ADMISSIBILITY TEST THAT IS SCIENTIFICALLY AND
LEGALLY SOUND

Edward J. Imwinkelried*

* Edward L. Barrett, Jr., Emeritus Professor of Law, University of California, Davis; former chair,
Evidence Section, American Association of Law Schools; coauthor, Giannelli, Imwinkelried,
Roth & Campbell Moriarty, Scientific Evidence (5th ed. 2012); author, The Methods of Attacking
Scientific Evidence (5th ed. 2014).

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 In the past few decades, the American criminal justice system has had to come to terms with the
reality that wrongful convictions are not exceedingly rare occurrences. By 2017, postconviction
DNA testing had established the innocence of over 340 wrongfully convicted accused. 1 The
National Registry of Exonerations lists almost 2,000 wrongful convictions. 2 It is particularly
disturbing that in many cases, flawed or at least overstated expert testimony appears to have
contributed to these wrongful convictions. 3 Inaccurate expert testimony is a “recurrent theme[]”
in the wrongful conviction studies. 4 In one study of 156 accused later exonerated by
postconviction DNA testing, at 60% of the trials “forensic analysts called by the prosecution
provided invalid testimony . . . –that is, testimony with conclusions misstating empirical data or
unsupported by empirical data.” 5 Researchers have faulted erroneous opinions by forensic
experts in a wide range of fields, including blood serology, hair evidence, soil comparison,
bitemark analysis, dog sniffs, spectrographic voice identification, shoeprints, and fiber
comparisons. 6

1
President’s Council of Advisors on Sci. and Tech., Reports to the President–
Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison
Methods 3 (2016)(hereinafter cited as PCAST).
2
As of February 26, 2017, the registry had listed 1,994 exonerations. Nat’l
Registry of Exonerations, http://www.law.umich.edu/special/exoneration.
3
Boaz Sangero, Safety from False Convictions (2016); Denise Lavoie, Fallen
Forensics: Judges Routinely Allow Disavowed Science, LA Daily News, Aug. 20, 2017,
http://www.dailynews.com (“The National Registry of Exonerations at the University of
California Irine has documenyed more than 2,000 exonerations sincde 1989. Nearly one-fourth
list ‘false or misleading forensic evidence’ as a contributing factor”).

4
Inger H. Chandler, Conviction Integrity Review Units, 31 Crim.Just., Sum. 2016, at
14, 15.
5
Brandon L. Garrett & Peter J. Neufeld, Invalid Forensic Science Testimony and
Wrongful Convictions, 95 Va.L.Rev. 1, 9 (2009).
6
Donna Lee Elm, Continued Challenges for Forensics, 32 Crim.Just., Sum. 2017, at
4, 5.

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 To be sure, in some cases the miscarriage of justice was virtually unavoidable. In most
scientific fields, research is ongoing. At one point in time–the time of an accused’s original trial–
the available empirical data might have seemed to support the validity of a particular scientific
theory or technique. On that assumption, at the trial it is understandable both that an honest
expert would be willing to testify based on the technique and that a trial judge would admit the
testimony. However, as the research evolved, later discovered data might undermine confidence
in the technique. No matter how careful early researchers are, it is always possible that the
outcomes in their studies will be artifacts because, by happenstance, the reseachers drew
unrepresentative samples from the relevant universe. Unless the researchers conduct a complete
census of the universe, any given “random” sample can turn out to be atypical.
Microscopic hair analysis is a case in point. For decades, trace evidence experts testified
that based on a detailed comparative microsopic analysis of hair strands found at a crime scene and
obtained from an accused, an accused was the likely source of the crime scene strands. 7 DNA
experts later developed techniques for analyzing mitochondrial DNA (mtDNA) in hair. In an
F.B.I. study of 80 hair comparisons in which the trace analysts had reported a microscopic match
or association, mtDNA analysis demonstrated that nine samples (12.5%) came from different
persons. 8 In these situations, given the earlier state of the empirical research the prior conviction
may have been defensible; but the question that arises later is whether the accused is entitled to
postconviction relief. Some courts have awarded new trials under the existing statutes governing
postconviction relief. 9 In other jurisdictions such as California 10 and Texas, 11 the legislatures
have recently amended their statutes to expressly provide relief when later scientific research
invalidates a technique or theory that played a major role in securing an accused’s conviction.
In other cases, though, the wrongful conviction is avoidable. In these cases, at the very
time that the forensic expert took the stand to testify about a technique or theory, there was
empirical data demonstrating the invalidity of the technique or theory; and the data was reasonably
accessible to the accused’s defense attorney. On occasion, when the facts are extreme enough to
cleary demonstrate the attorney’s defense negligence, after the conviction the courts can grant
relief based on ineffective assistance of counsel in violation of the Sixth Amendment. 12
However, the optimal solution is to devise and enforce an admissibility standard that separates the
wheat from the chaff and prevents the introduction of the junk science.

7
2 Paul C. Giannelli, Edward J. Imwinkelried, Andrea Roth & Jane Campbell
Moriarty, Scientific Evidence § 24.02[l] (5th ed. 2012)(hereinafter cited as Giannelli).
8
National Research Council, Strengthening Forensic Science in the United Sdtates:
A Path Forward 5-25 (2009).
9
Findings of Fact, Rulings of Law, and Order on Defendant’s Motion for New Trial,
Commonwealth v. George D. Perrott, Superior Court Action 85-5415, 5418, 5420, and 5425
(Hampden Cty. Super.Ct., Mass. Jan. 26, 2016).
10
Cal. Penal Code § 1473(e)(1).
11
Texas Code Crim.Proced. Art. 11.073(a)(2).
12
Hinton v. Alabama, 134 S.Ct. 1081, 188 L.Ed.2d 1 (2014).

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 Part I of this short article critiques two admissibility standards that the courts have
sometimes applied in the past. Part II proposes an alternative admissibility standard. Part II
argues that the proposed standard reflects both sound scientific methodology and a sensible
synthesis of the governing statutes and cases. Part III discusses several applications of the
proposed standard. That discussion is intended to provide a sense of the utility and limitations of
the proposed standard.

I. SPURIOUS STANDARDS FOR THE ADMISSIBILITY OF EXPERT TESTIMONY

A. Expert testimony should be admissible so long as the expert’s opinion is relevant.

One possible approach is to admit any relevant opinion. 13 Under this approach, the trial
judge admits the opinion so long as the expert vouches that in his or her opinion, the technique or
theory is valid.
While this approach would radically simplify the trial judge’s admissibility decison,
the approach is at odds with both scientific methodology and the controlling statutes and cases.
As the Supreme Court itself acknowledged in its seminal 1993 Daubert decision, there are three
steps in classic Newtonian scientific methodology: first, the scientist proposes an hypothesis about
a phenomenon; then the scientist subjects the hypothesis to empirical testing in the form of
controlled laboratory experimentation or systematic field observation; and finally, the scientist
critically evaluates the test results to determine whether they falsify or validate the hypothesis. 14
Rather than embodying the scientific method, the relevancy approach represents the antithesis of
scientific methodology; the approach allows the expert to opine on the basis of unscientific
“subjective belief and unsubstantiated speculation.” 15 No matter how vociferously the expert
proclaims his or her personal belief in the truth of the hypothesis, at most that proclamation
amounts to the proposal of an hypothesis. If the hypothesis is plausible, it may be worth an
empirical investigation. However, without more the proposal is no substitute for either the
subsequent empirical testing or the still later evaluation of the results of the test. Plausible or not,
the hypothesis has not yet been scientifically proven.

13
Giannelli, supra note 7, at § 1.07.
14
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 590 (1993). The
scientific method is an epistemological technique, that is, a technique for generating knowledge.
Epistemology takes the position that whenever anyone makes a knowledge claim, that person must
specify the basis or warrant for the claim.
15
Id.

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 In a 1997 decision, Joiner v. General Electric, 16 the Supreme Court explicitly stated
that a trial judge may not admit expert testimony resting solely on the expert’s ipse dixit claim that
the underlying technique or theory is valid. 17 To drive the point home, the Court reiterated the
point in 1999 in Kumho Tire Co. v. Carmichael. 18 The point was certainly not lost on the Federal
Rules of Evidence Advisory Committee. In 2000, the Committee drafted an amendment to
Federal Rule of Evidence 702 in part to codify the teachings of the Daubert-Joiner-Kumho line of
authority. As is customary, the Committee prepared an official Advisory Committee Note to
accompany the amendment. Citing the three cases, the Committee declared that the trial judge
may not “simply ‘tak[e] the expert’s word for it.’” 19

B. Expert testimony should be admissible so long as it is based on a technique or

theory that is generally accepted within the pertinent scientific field(s).

In the first approach, the personal opinion of the expert is dispositive: If his or her opinion
is relevant and based on a technique or theory that the expert personally vouches for, the opinion is
admissible. The second approach is fundamentally different. Rather than accepting the personal
opinion of the individual expert, this approach demands a showing that the technique or theory has
gained widespread, general acceptance among the scientists in the relevant fields. This is the
famous Frye test:

Just when a scientific principle or discovery crosses the line beween the experimental and
demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential
force of the principle must be recognized, and while the courts will go a long way in
admitting expert testimony deduced from a well recognized scientific principle or
discovery, the thing from which the deduction is made must be sufficiently established to
have gained general acceptance in the particular field in which it belongs. 20

At one time the federal courts and the clear majority of states subscribed to this test. 21

16
522 U.S. 136 (1997).
17
Id. at 146.
18
526 U.S. 137, 157 (1999).
19
2000 Adv.Comm.Note, Fed.R.Evid. 702, 28 U.S.C.A..
20
Frye v. United States, 293 F. 1013, 1014 (D.C.Cir. 1923).
21
Giannelli, supra note 7, at § 1.06, at 13.

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 To its credit, the Frye test provides greater assurance of the reliability of the expert
testimony than the relevancy test. It no longer suffices that a single expert vouches for the
technique or theory. Rather, the proponent of the testimony has to demonstrate that the technique
or technique has garnered widespread acceptance by the specialists in the field. If the technique
or theory had achieved that status, there is an inference that at least some experts in the field have
reviewed the underlying empirical research and found it to be satisfactory. However, in the final
analysis, the existence of the technique’s extensive popularity is merely circumstantial evidence
that the technique or theory passes muster under scientific methodology. 22 Without more,
general acceptance does not establish that there has been empirical testing or that the test outcomes
validate the hypothesis. General acceptance represents little more than the collective ipse dixit of
a large number of experts in the field. Moreover, in numerous cases such as microsopic hair
analysis, the comparative bullet lead analysis (CBLA) technique for identifying the source of
bullets, 23 and the paraffin test for gunshot residue, 24 techniques that once enjoyed great popularity
have been discredited by later scientific research. In short, compliance with the general
acceptance test furnishes inadequate assurance that the technique or theory is scientifically sound.
The test is a crude proxy for a direct evaluation of the scientific merit of the technique or theory. 25
Furthermore, in most jurisdictions the test has been overturned by more modern statutes
and case law. In the Daubert decision, 26 the Supreme Court held that the 1975 enactment of the
Federal Rules of Evidence had impliedly superseded Frye. The Court noted that under Federal
Rule of Evidence 402, logically relevant evidence is admissible unless it can be excluded under the
Constitution, statute, the Federal Rules of Evidence, or other court rules such as the Federal Rules
of Civil and Criminal Procedure promulgated pursuant to statutory authority. 27 Writing for the
majority, Justice Blackmun stated that the Federal Rules of Evidence do not contain any statutory
language that could reasonably bear the interpretation that it codified a general acceptance test.
Rule 402 therefore abolished the Frye test. Forty-four states now have evidence codes patterned
directly after the Federal Rules of Evidence. 28 Since the Daubert decision rests on statutory
interpretation rather than constitutional analysis, Daubert does not bind the states, even those with
22
In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the
Supreme Court ruled that after the enactment of the Federal Rules of Evidence, the Frye test was
no longer good law in federal court. The Court extracted a new validation/reliability test from the
reference to “scientific . . . knowledge” in the text of Rule 702. The Court added that in applying
the new test, trial judges should consider the factor of general acceptance. Thus, the Court treated
general acceptance as circumstantial evidence of reliability.
23
Giannelli, supra note 7, at § 14.11.
24
Id. at § 14.13[a].
25
Bert Black, Francisco Ayala & Carol Saffran-Banks, Science and the Law in the
Wake of Daubert: A New Search for Scientific Knowledge, 72 Tex.L.Rev. 715, ___ (1994).
26
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
27
Id. at 587, citing Fed.R.Evid. 402.
28
6T Weinstein’s Federal Evidence (rev. 2017).

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codes modeled after the Federal Rules. Nevertheless, today roughly three quarters of the states
have adopted some variation of Daubert’s reliability/validation test. 29

II. A PROPOSED ADMISSIBILITY STANDARD FOR EXPERT TESTIMONY

Part I considered two possible standards for governing the admissibility of expert
testimony. Part I found both standards wanting in two respects. First, satisfaction of the
standards provided little assurance that the underlying technique and theory had been
scientifically–empirically–validated. Second, the standards were inconsistent with the
controlling statutes and cases. An acceptable standard should not suffer from either weakness.
The standard should reflect sound scientific methodology, and the standard ought to be represent a
synthesis of the governing statutes and cases. This part proposes such a standard:

29
Giannelli, supra note 7, at §§ 1.14-.15.

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 The proponent must marshal enough empirical data and reasoning to persuade the judge
by a prepondrance of the evidence that by using the particular techique or theory the
expert proposes relying on, the expert can accurately draw the specific type of inference he
or she contemplates testifying to.

The remainder of Part II dissects and explains the proposed standard. More importantly, Part II
endeavors to demonstrate that unlike the standards discussed in Part I, this standard reflects sound
scientific methodology and is consistent with the governing statutory and decisional law
framework.

A. “The judge”

The threshold question is who should make the real decision on admissibility. At modern
common law and under the Federal Rules of Evidence, the answer to that question turns on the
nature of the admissibility issue. Federal Rule of Evidence 104 is in point. In pertinent part, it
reads:

(a) In General. The court must decide any preliminary question about whether a witness is
qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not
bound by evidence rules, except those on privilege.
(b) Relevance That Depends on a Fact. When the relevance of evidence depends on
whether a fact exists, proof must be introduced sufficient to support a finding that the fact
does exist.30

30
Fed.R.Evid. 104, 28 U.S.C.A..

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 In most cases, Federal Rule 104(a) controls. It is known as the competence procedure. 31
Under 104(a), the judge functions as a true factfinder. The judge considers the foundational
testimony on both sides, 32 passes on the credibility of the testimony, and makes a final ruling.
Suppose, for example, that when a prosecutor asks a testifying accused a question, the defense
attorney objects on the ground that the question calls for information shielded by the
attorney-client privilege. The prosecutor contends that no privilege attached because the
conversation in question did not occur in private. The two sides’ foundational testimony is in
agreement that the conversation occurred between the accused and another attorney in an elevator.
The point of disagreement is whether a third party was standing in earshot at the time of the
conversation–thus negating the confidentiality necessary for the attorney-client privilege to attach.
Under 104(a), the judge–not the jury-- makes the final decision on that question; and if the judge
decides that the conversation was confidential, the judge sustains the objection and excludes any
testimony about the conversation. The rationale for allocating the decision to the judge is that
even if at a conscious level the jury found the testimony technically inadmissible, realistically it
would be difficult for the jurors to put the testimony out of mind. Even if the judge instructed
them to disregard the testimony, there is an intolerable risk that at a subconscious level the jurors
would be influenced by the fact that the accused made a damning admission.
Contrast Rule 104(b) – the so-called conditional relevance procedure. 33 Under 104(b), the
judge plays a limited, screening role; and the jury is the real decisionmaker. The judge listens to
only the proponent’s testimony, accepts it at face value, and decides only whether the proponent’s
foundational testimony has sufficient probative value to support a rational finding. If the
testimony has at least that much probative worth, the judge admits the testimony. Later, during
the final jury charge, the judge instructs the jurors that: The proponent has the burden of proving
the fact by a preponderance of the evidence, if they find that the proponent has sustained the
burden they may consider the evidence during deliberations, but if proponent fails to meet that
burden they must disregard the evidence. The two paradigmatic examples are a lay witness’s
personal knowledge under Rule 602 and the genuineness of exhibits under Rule 901. Suppose
that the jurors decide that the witness lacked firsthand knowledge or that an exhibit is a forgery. If
the jurors conclude that the witness “doesn’t know what he is talking about” or that the exhibit
“isn’t worth the paper it’s written on,” common sense will naturally lead them to disregard the
evidence. The fact of personal knowledge or authenticity conditions the logical relevance of the
evidence in a fundamental way that will be obvious even to lay jurors without any legal training.
Does the fact of the validity of a scientific technique or theory fall under Rule 104(a) or
104(b)? At first blush, there is an argument that 104(b) controls. Rule 901(a) indicates that
104(b) governs determinations under 901(a), and 901(b)(9) relates to “[e]vidence describing a
process or system and showing that it produces an accurate result.” 34 That language seems

31
See generally Edward J. Imwinkelried, Determining Preliminary Facts Under
Federal Rule 104 § 37, in 45 Am.Jur. Trials (1992).
32
When a fact falls under Rule 104(a), the opponent has a right to both object and
request voir dire–a mini cross-examination–in support of the objection. Id. at § 29.
33
Id. at § 14.
34
Fed.R.Evid. 901(b)(9), 28 U.S.C.A..

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expansive enough to extend to scientific processes or techniques. However, in Daubert, Justice
Blackmun specifically stated that 104(a) controls the judge’s ruling. 35
On reflection, Justice Blackmun’s decision is correct. In this context, there is a significant
danger that even if the jurors decide that scientific testimony is technically inadmissible, their
exposure to it would improperly influence their deliberations. Several factors point to that
conclusion:
-----To begin with, foundational testimony about the validity of scientific techniques and theories
tends to be lengthy. Especially when the parties are litigating the admissibility of testimony based
on novel theories and techniques, the testimony often consumes hundreds or thousands of pages of
transcript. In sharp contrast, under Rule 602 the foundational testimony about a lay witness’s
firsthand knowledge may require only a minute or two of trial time. The more extensive the
foundational testimony, the more difficult it will be for the jurors to put the testimony entirely out
of mind even when they decide that it is inadmissible.

35
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592 (1993).

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-----Moreover, given the very nature of technical testimony about scientific techniques and
theories, the jurors have to work harder to understand the testimony. The harder a person works
to process or understand information, the more difficult it can be for the person to disregard the
information later. 36 Again, in contrast it is a relatively simple matter for a juror to decide whether
a lay witness in fact saw the traffic accident that she is prepared to testify about.
------Finally, the jurors’ choices under 602 and 901 are usually straightforward, binary decisions.
Either a witness saw the accident, or she did not. Either the person signed the writing, or he did
not. In contrast, when the decisionmaker is assessing the admissibility of scientific testimony, the
decision is frequently probabilistic in nature: The research indicates that the technique works a
certain percentage of the time. When the technique works only 49% of the time but the witness
happens to be a charismatic speaker with impressive credentials, again the jury may find it hard to
put the testimony entirely out of mind.
For all the above reasons, the judge ought to decide the admissibility of scientific testimony; and in
making that decision, the judge should follow the procedures prescribed by Rule 104(a).

B. “A preponderance of the evidence”

When Rule 104(a) applies, the judge ordinarily applies the preponderance of the evidence
standard to make his or her final decision. 37 However, Rule 104(a) does not explicitly prescribe
the preponderance standard; and on occasion commentators have contended that the judge ought to
apply an enhanced standard, perhaps even proof beyond a reasonable doubt in criminal cases. 38
In part, that contention reflects the higher stakes involved in criminal cases and the fear that lay
jurors are inclined to overvalue expert testimony. 39
However, especially when the immediate concern is the prevention of wrongful verdicts, it
is preferable to follow the conventional preponderance standard. Consider a murder prosecution
and a parallel civil wrongful death action. In the murder trial, the prosecution must establish the
accused’s guilt beyond a reasonable doubt. In Judge Weinstein’s famous informal survey of his
federal colleagues’ views of the meaning of proof beyond a reasonable, many judges indicated that
they believed that jurors equated the standard with proof exceeding a 90% probability. 40 Assume
that at a criminal trial, the prosecution introduces an item of evidence. Objectively the item
should create a 40% probability that the defendant committed the murder, but suppose that the lay
jurors erroneously treat it as generating a 60% probability. Even then we may avoid the
substantive evil of a wrongful conviction, since there is a safety margin between 60% and 90%.

36
Https://en.wikipedia.org/wiki/Levels-of-processing_effect (last visited Aug. 27,
2017).
37
Bourjaily v. United States, 483 U.S. 171, 175 (1987).
38
Paul C. Giannelli, The Admissibility of Novel Scientific Evidence: Frye v. United
States, a Half Century Later, 80 Colum.L.Rev. 1197, 1245-50 (1980).
39
Id.
40
United States v. Fatico, 458 F.Supp. 388 (E.D.N.Y.)(Weinstein, J.), aff’d, 603 F.2d
1053 (2d Cir. 1979), cert.denied, 444 U.S. 1073 (1980).

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 However, consider what happens if a civil plaintiff offers the same item of evidence in a
wrongful death action involving identical factual issues. The general understanding is that a
preponderance permits a verdict whenever the probability exceeds 50%. 41 However, our
supposition is that although the item of evidence supports only a 40% probability, the lay jurors
will misvalue the item and treat it as creating a 60% probability. Even if the jurors do not commit
any other inferential errors, that mistake can cause a wrongful verdict, since 60% far exceeds the
50% threshold. The initial error is the misvaluation of the probative value of the item of evidence,
but the ultimate substantive evil is a wrongful verdict caused by the misvaluation. In short,
scientific evidence poses a greater risk of wrongful verdicts in civil cases. If the preponderance
standard is acceptable in civil actions, it should likewise be acceptable in prosecutions. 42

C. “Empirical data and reasoning”

As the Georgia Supreme Court remarked, under the traditional general acceptance test the
trial judge simply counted noses to determine whether the technique or theory was generally
accepted. 43 However, under Daubert, the judge must assess the extent and quality of the
empirical validation of the technique or theory. In particular, there are four aspects of the
empirical research that the trial judge should weigh.
First, the judge should consider the quantity of empirical data. Does the data set
include only an anecdote or two, or is the data set substantial? The smaller the data set is, the
greater is the risk that the sample is unrepresentative and that any statistic based on the sample
does not accurately reflect the parameter of the universe. 44
Second, the judge ought to consider the quality of the data. Even a substantial data set can
yield inaccurate opinions if the sampled data do not represent the universe. The sheer size of the
sample can somewhat reduce the risk of drawing an unrepresentative sample. However, the use
of random selection procedures increases the probabilty of drawing a representative sample that
will support reliable inferences about parameters of the universe. 45 Did the researchers select a
convenience sample without going to the length of using random selection procedures?

41
2 McCormick, Evidence § 339 (7th ed. 2013).
42
2000 Adv.Comm.Note, Fed.R.Evid. 702, 28 U.S.C.A. (citing Bourjaily v. United
Sdtates, 483 U.S. 171 (1987) and stating that the preponderance standard governs under Rule 702).
43
Harper v. State, 249 Ga. 519, 525, 292 S.E.2d 389, 395 (1982).
44
Giannelli, supra note 7, at § 15.04[b], at 858-60.
45
Id. at § 15.04[b], at 860.

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 Third, the judge must inquire whether the conditions that obtained during the laboratory
experiments or field observations approximate the conditions involved in the instant case. In
Daubert, Justice Blackmun stressed that the expert evidence must “fit” the facts of the case. 46
Even more specifically, the Joiner Court stated that the trial judge must decide whether, as a matter
of logic, the expert may extrapolate from the empirical studies to an inference about the case. 47
Suppose, for example, that the expert proposes basing the identification of an unknown
drug as LSD on a gas chromatographic (GC) analysis. As support for her opinion, the expert
relies on an LSD study involving a particular type of GC column, carrier gas, and stationary phase.
However, in the instant case, the expert used a different kind of column, gas, and stationary phase.
Those conditions determine when a sample elutes from the column and, hence, its retention time. 48
In GC analysis, the retention time is the most important clue to the identity of the unknown drug. 49
A trial judge should rule that the expert has no right to rely on the prior LSD study as support for
his opinion based on a test conducted under radically different conditions.
Finally, the judge ought to demand that the expert specify the findings in the studies the
expert proposes relying on. What were the percentages of false negatives and positives? Just as
the judge should not accept an expert’s ipse dixit claim that the technique or theory is valid, the
judge should reject the expert’s conclusory claim that the empirical studies “demonstrate,”
“establish,”“indicate,” “prove,” or “show” the validity of the technique. The specific numbers
and percentages are essential to enabling the judge to intelligently determine whether the
proponent has established the validity of the technique or theory by a preponderance of the
evidence.

D. “The particular theory or technique the expert proposes relying on”

The question is not the global validity of the expert’s field or discipline. 50 At any given
time in the history of a scientific field, a range of theories is in circulation. Some theories may
have just been proposed, others might have minimal empirical support, there may be extensive
empirical validation of others, and still others will already have been discredited. In terms of
scientific methodology, it makes no sense to focus on the validity of a discipline in a broad brush
fashion. The general validity of the discipline is too broad a proposition to serve as a testable
hypothesis. Instead, the focus must be on testable hypotheses about particular techniques and
theories.

46
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 591 (1993).

47
Joiner v. General Electric, 522 U.S. 136, 146 (1997).
48
Giannelli, supra note 7, at § 23.02[d].
49
Id.
50
D. Michael Risinger, Defining the “Task at Hand”: Non-Science Forensic Science
After Kumho Tire Co. v. Carmichael, 57 Wash. & Lee L.Rev. 767 (2000).

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 Doing so not only makes more sense scientifically. It is also the mandate of the
governing statutes and the Daubert line of authority. Rule 702 does not require the proponent to
validate the expert’s field or discipline. Rather, 702(c) demands a foundational showing that “the
testimony is the product of reliable principles and methods.” 51 In Daubert, Justice Blackmun
asserted that the expert must demonstrate his or her ability to perform the “task at hand” 52–not
other tasks that specialists in the fields sometimes perform. In Joiner, the Court stated that the
question before it was the admissibility of the specific opinions the plaintiff had proffered to prove
causation. 53 Kumho is cast in the same mold. There the Court acknowledged that in general it is
useful for tire experts to inspect a tire cadaver visually and tactilely in determining whether an
accident was caused by a defect in the tire’s design. 54 However, the Court added that the decisive
question was the validity of the more specific methodology that the plaintiff’s expert, Carlson, had
used in forming his opinion–his theory that in the absence of two of four signs of abuse, a tire
separation is probably due to a design defect. 55 In all these cases, the Court’s analysis was
particularized to the expert’s specific methodology; and the tenor of the opinions makes it clear
that the Court would not have accepted some generalized, diffuse showing about the expert’s field.

E. “Accurately”

The cases and commentaries use a variety of adjectives to describe the required

51
Fed.R.Evid. 702, 28 U.S.C.A..
52
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993).
53
General Electric v. Joiner, 522 U.S. 136, 146 (1997). The plaintiff’s experts relied
in part on animal studies. On appeal, the plaintiff argues that the issue was whether an expert
could ever rely on animal studies to infer causation in human beings. The Court rejected the
argument and ruled that the dispositive question was whether the particular animal studies cited
supported the specific opinions proffered by the plaintiff’s experts. The Court found that for
several reasons the trial judge had properly exercised discretion in concluding that the studies did
not support those opinions:
----Although the rats in the studies were infants, the human beings in the instant case were adults;
----Although the rats had received massive doses of the drugs, the human beings had only modest
exposure;
----Although the rats received direct injections of the drugs, the human beings had dermal
exposure; and
----The rats had developed different types of cancer than the human beings. Id. at 144-45.
54
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 153-54 (1999).
55
Id.

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characteristic of techniques and theories that may serve as a basis for courtroom testimony. Two
of the most popular adjectives are “valid” and “reliable.” In a technical sense, reliability refers to
the consistency of a methodology while validity denotes a technique’s ability to do what its
proponent claims that it can do. 56 A technique that consistently yields the same erroneous result
is “reliable” in the technical sense, but the admissibility of testimony based on such a “reliable”
technique hardly reduces the risk of a wrongful conviction. If anything, Daubert muddies the
water. The Court demands that the proponent of scientific evidence establish that the evidence is
“reliable” as well as relevant. 57 However, the Court adds that to be “reliable,” a scientific
technique or theory must be supported by adequate validation. 58
It is submitted that the proponent should have to establish that the technique or theory is
valid in the technical sense that it enables an expert using the technique or theory to accurately
perform the task at hand. Perhaps the language in Rule 901(b)(9), previously quoted, best
captures the notion: If the proponent offers testimony based on “a [scientific] process or system,”
the proponent must “show[] that it produces an accurate result.” 59 The essential question is
whether the technique or theory accurately does what its proponent claims that it does. If the
proponent claims that the technique enables a forensic chemist to determine whether an unknown
sample is cocaine, the proponent should have to present empirical data that the technique permits
the analyst to accurately make that determination. If the proponent claims that the technique
enables a physicist to determine the speed of an automobile involved in a headon collision, the
proponent ought to be required to marshal empirical data demonstrating that the technique will
allow the physicist to accurately determine the speed. Simply stated, the bottom line should be
accuracy.

F. “The specific type of inference the expert contemplates testifying to”

This element of the proposed test brings two distinctions into play.
The type of inference versus the specific inference. Initially, at this stage in the analysis
there is a fundamental distinction between deciding whether the technique ordinarily enables the
expert to draw a type of inference and deciding whether the expert’s inference in the instant case is
correct. That distinction is vital in logic and law. In most cases, the expert engages in syllogistic
reasoning:
Major premise: If a patient displays symptoms A and B, he or she is probably
suffering from illness C.
Minor premise: This patient’s case history includes evidence of symptoms A and B.
Conclusion: Therefore, this patient probably suffers from illness C. 60
56
Paul C. Giannelli, The Admissibility of Novel Scientific Evidence: Frye v. United
States, A Half-Century Later, 80 Colum.L.Rev. 1197, 1201 n. 20 (1980).
57
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589-90 (1993).
58
Id.
59
Fed.R.Evid. 901(b)(9), 28 U.S.C.A..
60
Edward J. Imwinkelried, The “Bases” of Expert Testimony: The Syllogistic
Structure of Scientific Testimony, 67 N.C.L.Rev. 1 (1988).

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The judge is now evaluating the sufficiency of the proponent’s showing of the validity of the
expert’s major premise. Even if the expert’s major premise is valid, the expert’s ultimate
conclusion may be erroneous. For example, in applying the major premise to the facts of the case,
the expert might rely on untrustworthy information about the case-specific facts, the minor
premise. Here the judge is ruling on the question of whether the expert’s enables the expert to
accurately draw a type of inference. The question of the soundness of the expert’s ultimate
conclusion arises later and is analytically distinct.
Federal evidence law recognizes the existence of the distinction. Federal Rule of
Evidence 702 distinguishes the question of whether “the testimony is the product of reliable
principles and methods” (F.R.E. 702(c)) from the issue of whether “the expert has reliably applied
the principles and methods to the facts of the case” (702(d)). 61 The Advisory Committee Note
accompanying the 2000 amendment to Rule 702 explicitly states that the trial judge is not to apply
“‘the merits standard of [the] correctness” of the opinion. 62 If the judge were to employ that
standard, he or she would usurp the authority of the trier of fact to make that decision.
The different types of inferences. A second distinction comes into play here. There are
several types of inferences that an expert can attempt to draw. By way of example, in Daubert,
Justice Blackmun pointed out that an expert might attempt to draw two very different inferences
from data gathered by the technique of studying the phase of the moon. 63 He noted that from that
data, an expert could reliably draw an inference about how dark it was at a particular place at a
certain time of night. However, he added that it would be quite another matter for the expert to
infer from that data that a person was insane at that place and time. The available empirical data
supports the first type of inference but not the second.
The two most common types of inferences are those that amount to substantive evidence
of disputed facts and those that shed light on the credibility of witnesses. Consider the possible
uses of testimony about rape trauma syndrome (RTS). In both uses, the expert starts with the
same basic theory; the theory is that there is a characteristic profile of women who report being
raped, including certain phobias and often such conduct as either delaying the initial rape report or
later recanting the report. 64 As the Minnesota courts have recognized, the prosecution can
attempt to put such testimony to two very different uses, an inference about events in the case or as
credibility evidence. 65

61
Fed.R.Evid. 702(c)-(d), 28 U.S.C.A..
62
Id. at 2000 Adv.Comm.Note, Fed.R.Evid. 702.
63
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 591-92 (1993).
64
1 Giannelli, supra note 7, at § 9.04.
65
State v. McGee, 324 N.W.2d 232, 233 (Minn. 1982); State v. Saldana, 324
N.W.2d 227 (Minn. 1982).

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 Suppose, for example, that the prosecution proffered a psychologist’s testimony that a rape
complainant’s behavior matched the RTS profile and that therefore the complainant was probably
subjected to a rape. In this variation, the prosecution is endeavoring to use the testimony as
substantive evidence that an event occurred; the prosecution expert proposes employing the RTS
profile as a fact-finding tool on the historical merits. In this event, the prosecution would need a
certain type of empirical foundation. In particular, the prosecution would have to show that the
RTS profile was derived from a database including rape reports that had been corroborated.
Rather than accepting the alleged victims’ self-reports at face value, the researchers would have to
demonstrate that they had contacted: hospital emergency rooms to learn whether the victims
displayed the physical symptoms of violent sexual assaults, police departments to ascertain
whether suspects later confessed to rapes in these cases, and district attorney offices to learn
whether they had unearthed independent evidence of the rapes. The expert cannot use the
database as a factfinding tool unless there is some assurance that the incidents in the database are
indeed rapes. As a general proposition, the courts have refused to admit syndrome testimony as
substantive evidence 66 in large part because this sort of empirical data is lacking.
However, assume that the prosecution is content to put the testimony to a limited,
credibility use. The defense has attacked the complainant’s credibility on the ground that she
delayed reporting the alleged offense. In order to rehabilitate her credibility, the prosecution
wants to elicit a psychologist’s testimony that for a variety of reasons many rape victims delay
contacting law enforcement authorities. The prosecutor tells the judge that he agrees to have the
judge give the jury a Rule 105 limiting instruction that they may use the testimony only as
credibility evidence. 67 Simply stated, the expert contemplates testifying to a very different type
of inference. Since the prosecutor is no longer attempting to utilize the RTS testimony as a
fact-finding tool, a different type of foundation will suffice. Suppose that the psychologist
testifies that: He has reviewed a database including several thousand rape reports, in the vast
majority of the cases the alleged victims were treated for post-traumatic stress disorder (PTSD),
and in the longterm in almost all the cases the therapists found that the alleged victims’ mental
health and affect significantly improved. It is true that there is a possibility of feigning in these
cases. However, given a sufficiently large number of successful clinical interventions, there is a
common sense inference that the alleged victims at least subjectively believed that they had been
raped. In short, the nature of the required empirical validation turns on the nature of the inference
the expert proposes testifying to.

III. APPLICATIONS OF THE PROPOSED STANDARD THAT ILLUSTRATE ITS

UTILITY AND LIMITATIONS

Part II proposed a standard for determining the admissibility of expert testimony. That
part argued that the proposed standard reflects sound scientific methodology and represents a
synthesis of the governing statutes and case law. The following subparts are intended to refine
the test by illustrating its utility and limitations.

66
1 Giannelli, supra note 7, at §§ 9.03-.07.
67
Fed.R.Evid. 105, 28 U.S.C.A..

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 A. The proposed standard, including the preponderance test, does not always require
that the proponent establish greater than a 50% probability that by using the
technique, the expert can accurately draw a specific type of inference.

In applying the proposed test, it is essential to pay close attention to the nature of the
inference the expert contemplates testifying to. For instance, consider a prosecution in which the
government alleges that the defendant doctor was guilty of mail fraud. The indictment alleges
that: The defendant operated a cancer clinic; his advertisements for the clinic asserted that the
clinic employed all the available diagnostic tests for detecting cancer; the clinic did use several
inferior tests; but the clinic never utilized the best available diagnostic test. The accused admits
that his clinic did not use that test but denies that it is the best diagnostic test. At trial, the
prosecution calls a cancer specialist from the Centers for Disease Control to testify about a
comprehensive national study of all the available diagnostic tests for cancer. The study involved
10,000 patients suffering from the illness, its composition was representative, and the test
conditions were realistic. The study yielded the following findings:
-----There are currently four diagnostic tests available for this illness.
-----The first test–the test the doctor’s clinic omits–has a false negative rate of 60%.
-----However, the other three tests have even higher false negative rates, 70%, 80%, and 90%.
The study indicates that the omitted test does not even enable a physician to determine whether the
patient has the illness in 50% of the cases – rather, the test yields false negative outcomes in over
half the cases. Yet, the prosecution’s showing passes muster. Based on the study, under Rule
702 the specialist should be permitted to opine that the omitted test is the best diagnostic test
available. The prosecution expert claims that the omitted test is the most specific test, and the
empirical data proves up that claim.

B. Even if the expert’s technique or theory satisfies the proposed test, the expert’s
ultimate opinion may be inadmissible.

As previously stated, in many cases the expert’s direct examination is syllogistic in

structure. 68 If so, satisfying Rule 702(c) will not guarantee the admissibility of the expert’s

68
However, in numerous cases the testimony of an expert will not follow that model.
The literature often refers to the “use” of expert witnesses in the singular, as if there was only one
way to employ a witness who happens to be an expert. In truth, there are four different ways of
utilizing such a witness.
-----First, sometimes the witness will serve purely as a fact witness. Suppose that when an
eminent toxicologist is driving to work, she witnesses a traffic accident. In particular, she sees the
defendant’s car run through a red light and strike a bus. The witness possesses firsthand
knowledge of those facts; and under Rule 602, like a lay witness the toxicologist could testify to
those facts.
-----Second, sometimes the witness can provide a lay opinion. Now assume that after the
accident, the toxicologist approaches the defendant’s car. When the defendant exits his car, she
notices that his speech is garbled, his eyes are red, and there is a strong odor of alcohol. Based on
those facts, a witness may testify to a lay opinion about the driver’s intoxication. 1 McCormick,
Evidence § 11 (7th ed. 2013). The witness’s background in toxicology does not disqualify from
testifying to a lay opinion that is otherwise admissible under Rule 701.

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ultimate opinion. In addition to satisfying 702(c), the proponent will have to show under 702(d)
that the expert properly applied the technique to the facts of the case. 69 For that matter, Rule 703
will require a showing that the expert acquired trustworthy information about the case-specific
facts. 70
Moreover, even if the proponent dots every i and crosses every t in Article VII, the
expert’s ultimate opinion may still prove to be inadmissible. As the Daubert Court noted, 71 the
proponent must also surmount the hurdle of Rule 403. That rule grants the trial judge discretion
to exclude otherwise admissible evidence when the attendant probative dangers substantially
outweigh the probative value of the evidence. 72 The text of the rule expressly mentions the
probative dangers of “confusing the issues, wasting time, or needlessly presenting cumulative
evidence.” 73

-----Third, an expert sometimes in effect gives the trier of fact only a lecture about a technique or
theory without attempting to apply the technique or theory to any case-specific facts. The original
Advisory Committee Note to Rule 702 states that under the Rule, experts “may give a dissertation
or exposition of scientific or other principles relevant to the case, leaving the trier of fact to apply
them to the facts.” Adv.Comm.Note, Fed.R.Evid. 702, 28 U.S.C.A.. The Note explains that the
drafters worded Rule 702 to refer to “an opinion or otherwise” to permit such testimony.
-----Finally, though, after the expert establishes the validity of the technique or theory, the
proponent may invite the expert to generate an opinion about the significance of certain facts in the
case by applying the technique or theory to those case-specific facts. In this event, the expert’s
testimony will have an explicit or implicit syllogistic structure.
69
Id. at Fed.R.Evid. 702.
70
Id. at Fed.R.Evid. 703.
71
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 595 (1993).
72
Fed.R.Evid. 403, 28 U.S.C.A.
73
Id.

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 Consider a hypothetical drug prosecution. The prosecution must establish that the drugs
seized from the accused were cocaine. The judge has already ruled that the prosecution may
introduce a gas chromatograph/mass spectrometry (GC/MS) analysis. That technique is
generally regarded as the “gold standard” in drug identification testing because it is very specific. 74
However, in order to make a conviction doubly certain, the prosecution also proffers testimony
about an ultraviolet spectrophotometry (UV) test. 75 At a pretrial hearing on the proffer, the trial
judge concludes that: The UV test will support only a 51% probability that the seized drug was
cocaine; the prosecution expert’s testimony about the UV test will include a large number of
highly technical terms that the lay jurors may have difficulty understanding; and the presentation
of the testimony and the defense rebuttal concerning the UV test will likely consume four hours of
trial time. On one side of the balance, especially since the judge will allow the prosecution to
introduce the GC/MS testimony, the UV testimony has minimal “probative value.” After all, the
record of trial indicates that the accuracy of the UV evidence barely exceeds the random chance
level of 50%. On the other side of the balance, the expert’s use of scientific jargon may result in
“confusing the issues,” the availability of the GC/MS evidence renders the UV testimony
“needlessly . . . cumulative,” and the consumption of four hours at trial arguably amounts to
“wasting time.” Given that state of the record, the trial judge could justifiably exclude the
testimony under Rule 403.

C. Even if the expert’s technique or theory satisfies the proposed test, without more
testimony based on the technique or theory might be legally insufficient to support
a conviction.

As subpart B noted, the Daubert Court stated that even if proffered expert testimony
satisfies Article VII of the Federal Rules, the trial judge could conceivably exclude the testimony
under Rule 403. The Court also observed that standing alone, even admissible testimony might
be legally insufficient to uphold a judgment. 76

74
2 Giannelli, supra note 7, at § 23.03[c].
75
Id. at § 23.02[f].
76
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 596 (1993).

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 Suppose, for example, that the government is prosecuting the accused for murder. The
forensic investigators find two blood stains at the crime scene. The laboratory conducts a red
blood cell (RBC) group test. The laboratory finds that one stain is AB, matching the victim’s
type. Only 3% of the world’s population has that type. 77 The other stain is type O, matching the
accused’s type. However, in the United States approximately 45% of the Caucasian population,
51% of the African-American population, 57% of the Hispanic population, and 40% of the Asian
popultion share that blood type. 78 Assume that after the RBC test, there is a laboratory accident
contaminating the sample and precluding DNA testing. It is well-settled that RBC testing is
admissible. 79 There is a huge amount of data indicating that the state-of-the-art techniques can
accuately determine a person’s RBC group. Proof that the accused’s group matches the
perpetrator’s group is logically relevant, circumstantial evidence of the accused’s identity as the
perpetrator. The evidence narrows the class of potential perpetrators and satisfies Federal Rule of
Evidence 401 by ever so slightly increasing the probability that the accused is the perpetrator. 80
However, in this hypothetical case, due to the laboratory accident the prosecution presents only
the RBC test evidence to prove the accused’s identity as the perpetrator. At the end of the
prosecution case-in-chief, on a defense motion the trial judge should peremptorily enter a
judgment of acquittal. In 1979 in Jackson v. Virginia, 81 the Supreme Court announced that to be
legally sufficient, a prosecution case must be strong enough to allow a rational juror to find guilt
beyond a reasonable doubt. In this hypothetical, the only prosecution evidence that the accused is
the perpetrator is testimony that places the accused in a class of persons that includes billions of
persons in the world. As a matter of law, the admissible RBC evidence falls short of satisfying
that standard. 82 The prosecution will win the admissibility battle but lose the sufficiency war.

D. Even if the technique or theory satisfies the proposed test at the time of the original

77
1 Giannelli, supra note 7, at § 17.09, at 1068.
78
http://www.redcrossblood.org/learn-about-blood/blood-types.html (last visited
Aug. 27, 2017).
79
1 Giannelli, supra note 7 at § 17.09.
80
Fed.R.Evid. 401, 28 U.S.C.A.; 1 McCormick, Evidence §§ 184-85 (7th ed. 2013).
81
433 U.S. 307 (1979).
82
A similar problem can arise in civil actions. In civil cases,the courts routinely
admit testimony about differential diagnosis (to prove the nature of a patient’s illness) or different
etiology (to prove the cause of the illness). 2 Giannelli, supra note 7, at § 20.06[b], at 357-62. In
both techniques, the expert uses process of elimination reasoning to identify the most likely illness
or cause. However, the analysis yields only the most probable illness or cause, not necessarily a
probable illness or cause. Edward J. Imwinkelried, The Admissibility and Legal Sufficiency of
Testimony About Differential Diagnosis (Etiology): Of Under- and Over-Estimations, 56 Baylor
L.Rev. 391 (2004). An illness or cause can be the most probable even if it does not approach
creating a 50% probability. Again, the evidence would be admissible but not legally sufficient to
sustain a judgment.

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 trial, later scientific research may invalidate the theory or technique to the extent
that postconviction relief is warranted.

As Justice Blackmun remarked in Daubert, one of the differences between legal and
scientific inquiry is that while scientists can indefinitely suspend judgment on an issue until
additional empirical data becomes available, courts must decide cases on the basis of the then
available data. 83 At the time of trial, the state of the empirical record may permit the judge to
conclude that the proponent of expert testimony has satisfied the proposed test. The available
data may indicate that by using the particular technique or theory the expert is relying on, the
expert can accurately draw the specific type of inference he or she proposes testifying to.
However, the research into the scientific issue in question might continue. There is
always a possibility that later research will undermine confidence in the testimony admitted at the
earlier trial. As the Introduction noted, although for decades courts had sustained the
admissibility of microscopic hair analysis, later mtDNA research exposed the overstated claims
that hair analysts had sometimes made in the past. Trial judges base their rulings on evidentiary
issues on the information presented to them at the time of the ruling, sometimes supplemented by
court-appointed experts under Federal Rule of Evidence 706. 84 If the research progresses, as in
the case of hair analysis, subsequent empirical studies may prove that the judge’s ruling was
wrong. In that situation, the question is not the standard for determining the admissibility of the
evidence in the prior trial. Rather, there the question is balancing the competing the interests in
finality and the prevention of miscarriages of justice to determine when postconviction should be
available. 85

83
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 596-97 (1993).
84
Fed.R.Evid. 706, 28 U.S.C.A..
85
Edward J. Imwinkelried, Revising State Post-Conviction Relief Statutes to Cover
Convictions Resting on Subsequently Invalidated Expert Testimony, __Seton Hall L.Rev.__
(forthcoming 2018).

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 IV. CONCLUSION

We cannot naively expect that any steps we take will altogether eliminate the risk of
wrongful convictions. Human decisionmakers, including judges and juries, are forced to make
decisions under conditions of uncertainty86 and incomplete knowledge–bodies of knowledge that
can change and evolve. That is especially true in the case of the scientific knowledge used in
trials. If a scientific discipline has forensic applications, there are usually strong incentives for
further empirical investigations of hypotheses circulating in the discipline. In some cases, the
incentives are financial. Billions of dollars in potential Tort liability can turn on the outcome of
research into the question of whether exposure to a particular chemical causes cancer. In other
cases, the incentives relate to public safety. If crime laboratories can validate Low Copy Number
(LCN) DNA testing, 87 law enforcement authorities will become more effective at solving and
preventing crimes. Given the ongoing research, theories once regarding as solid science may
later be discredited; and, conversely, theories that were once dismissed as fanciful may attain the
status of reliable science that can serve as a basis for courtroom testimony. 88

86
Ted Vosk & Ashley Emery, Forensic Metrology: Scientific Measurement and
Inference for Lawyers, Judges, and Criminalists (2014). Metrology is playing an increasing role
in scientific evidence. Metrology is the science of measurement. The fundamental tenet of
metrology is that one can never be certain that any measurement accurately captures the value of
the measurand. No matter how skilled the person taking the measurement or how well calibrated
the measuring instrument, there is unavoidable uncertainty at that fundamental level in scientific
analysis.
87
2 Giannelli, supra note 7, at § 18.03[d].
88
Ronald L. Carlson, Edward J. Imwinkelried, Julie Seaman & Erica
Beecher-Monas, Evidence: Teaching Marerials for an Age of Science and Statutes 34 (7th ed.
2012)(“As the director for the Center of Modern Technologies has pointed out, ‘with monotonous
regularity, apparently competent men have laid down the law about what is technically possible
and impossible–and have been proved utterly wrong, sometimes when the ink was scarcely dry
from their pens. A. Clarke, Profiles of the Future: An Inquiry into the Limits of the Possible
(1984). In 1878, while Edison neared the perfection of his invention of the electric light bulb, a
special British Parliamentary committee announced that the concept was ‘unworthy of the
attention of . . . scientific men.’ A year before the Soviet Union launched Sputnik I, the
Astronomer Royal, Dr. Richard van der Riet Woolley, stated that proposals for space travel were
‘utter bilge’”).

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 The purpose of this article has been to propose an admissibility standard that reflects
both sound scientific methodology and a sensible synthesis of the pertinent statutes and cases.
The intent is to formulate a standard that will provide greater protection against wrongful
convictions. As Part I demonstrated, one essential step is to move beyond popularity–the ipse
dixit of either the individual expert or the sentiment in the field–to empiricism. If we want
scientifically sound expert testimony, the courts must demand empirical validation, since that is
the basis of scientific methodology. Part II added that to conduct a meaningful, rigorous review
of proffered expert testimony, the judge must engage in an intensely particularized analysis. The
judge must inquire whether the proponent has marshaled sufficient empirical data and reasoning to
establish that by using the particular technique or theory he or she is relying on, the expert can
accurately draw the particular type of inference the expert proposes testifying to. Concededly,
adopting this proposed standard does not guarantee that there will no longer be wrongful
convictions. However, moving toward particularized, empirical analysis is the best insurance
against such miscarriages of justice.

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