Articles of Note: Three Forthcoming Articles on Expert Testimony

Do Jurors Give Appropriate Weight to Forensic Identification Evidence?

William C. Thompson (UC-Irvine), Suzanne O. Kaasa  (Northrop Grumman), Tiamoyo Peterson (UC-Irvine)

Journal of Empirical Legal Studies, Forthcoming 

Is Expert Evidence Really Different?

Frederick Schauer (University of Virginia School of Law), Barbara A. Spellman (University of Virginia School of Law),

The Daubert Counterrevolution 

David Bernstein (George Mason University School of Law)

Notre Dame Law Review, Forthcoming 

Abstracts below the fold . . .

Do Jurors Give Appropriate Weight to Forensic Identification Evidence?

William C. Thompson (UC-Irvine), Suzanne O. Kaasa  (Northrop Grumman), Tiamoyo Peterson (UC-Irvine)

Journal of Empirical Legal Studies, Forthcoming 

Abstract: 
Do jurors give appropriate weight to forensic identification evidence? When judging the value of forensic evidence, are they sensitive to the probability of a false match? To answer these questions, we conducted two jury simulation experiments — the first with undergraduate participants, the second with members of a county jury pool. The experiments examined the weight that participants gave to forensic DNA evidence relative to Bayesian norms when evaluating a hypothetical criminal case. We found that aggregate judgments were generally consistent with Bayesian expectations, although people over-valued the DNA evidence when the probability of a false report of a match was high relative to the random match probability. Judgments of the chances the defendant was guilty varied appropriately in response to the variation in the probability of a false report of a match, as did verdicts. Our findings refute claims that jurors are always conservative Bayesians when evaluating forensic evidence and suggest, instead, that they use a variety of judgmental strategies and sometimes engage in fallacious statistical reasoning. In light of these findings, we identify circumstances in which forensic evidence may be over-utilized, discuss implications for legal policy, and suggest additional lines of research.

Is Expert Evidence Really Different?

Frederick Schauer (University of Virginia School of Law), Barbara A. Spellman (University of Virginia School of Law),  

Abstract:      
Daubert v. Merrell Dow Pharmaceuticals, which along with its successor cases has imposed demanding standards of reliability on the admission of scientific and other expert evidence, has transformed much of American evidence law. The Daubert revolution has been subject to strong endorsement and equally strong criticism, but few critics, and none since Daubert, have asked why expert evidence is treated differently in the first place. The common assumption, going back over a century, is that expert evidence is treated differently because of the risk that juries (and judges), not themselves possessed of the relevant expertise, will systematically overvalue such evidence. The overvaluation may be based on ignorance, or on novices being overly impressed by expert credentials and trappings, but the belief in overvaluation as the primary foundation for the distinct treatment of expert evidence persists, generating not only Daubert but also a long history of treating expert evidence specially. It turns out, however, that the longstanding assumption of overvaluation is unsupported by the research. Several decades of research, mostly by psychologists, shows the common assumptions of jury overvaluation of expert evidence to be large unfounded. Indeed, modern research shows that it is eyewitness and other so-called direct evidence that is overvalued. By relying on the erroneous assumption of jury overvaluation of expert testimony and the equally erroneous assumption of non-overvaluation of direct testimony, the law of evidence has drawn a distinction that rests on a false empirical basis. Moreover, insofar as the distinction between expert and other evidence also rests on a distinction between the facts that lay witnesses offer and the inferences (opinions) that come from experts, this distinction is undercut not only by the modern treatment of lay opinion, but by a great deal of philosophical work on the expert-dependence of the judgments that ordinary people make in all aspects of their lives.

The Daubert Counterrevolution 

David Bernstein (George Mason University School of Law)

Notre Dame Law Review, Forthcoming 

(from the) Abstract:      

This Article reviews the history of the evolution of the rules for the admissibility of expert testimony since the 1980s, the revolutionary nature of what ultimately emerged, and the consistent efforts by counter-revolutionary judges to stop or roll back the changes, even when the changes were codified into Federal Rule of Evidence 702. 
. . .
This Article concludes by discussing some of the factors that have led some federal judges to defy Rule 702. The author contends that the Supreme Court should take an appropriate opportunity to crack down on such judicial rebellion, for two reasons. First, Rule 702 is the law of the land, and federal judges are obligated to enforce it regardless of their personal views on what expert testimony should be admissible. Second, Rule 702 represents a constructive effort to confront the problem of adversarial bias while retaining the basic contours of broader adversarial process.

 

- JB