Revisiting Daubert: Judicial Gatekeeping and Expert Ethics in Court

This article calls for pragmatic modifications to legal practices for the admissibility of scientific evidence, including forensic psychological science. We submit thatDaubert v. Merrell Dow Pharmaceuticals, Inc. (1993) and the other two cases in the U.S. Supreme Court trilogy on expert evidence have largely failed to accomplish their gatekeeping goals to assure the reliability of scientific evidence admitted in court. Reliability refers to validity in psychological terms. Part of the problem withDaubert ’s application in court is the gatekeeping function that it ascribes to judges. MostDaubert admissibility challenges are rejected by judges, who might lack the requisite scientific expertise to make informed decisions; educating judges on science might not be an adequate solution. Like others who have put forth the idea, pursuant to Federal Rule of Evidence (FRE) 706, we suggest that court-appointed impartial experts can help judges to adjudicate competing claims on admissibility. We further recommend that an expert witness ethics code sworn to in legal proceedings should be mandatory in all jurisdictions. The journalPsychological Injury and Law calls for comments and further recommendations on modifyingDaubert admissibility challenges and procedures in civil and criminal cases to develop best practices to mitigate adversarial allegiance and other unconscious biases in expert decision-making.
Source: Psychological Injury and Law - Category: Medical Law Source Type: research