Daubert revisited

The Hastings Law Journal has this Essay:

Finding the Error in Daubert, by Mark Haug and Emily Baird

The Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc. laid down the standard for admissibility of expert testimony. We believe the best standard is simpler than the one chosen by the Court: The Daubert standard really is about discerning the trustworthiness of expert, and trustworthiness is best determined through an expert’s accounting of the error within his testimony. Lower courts have struggled with the Daubert standard. We offer evidence of the problem and propose a new standard that would capture the essence of Daubert but significantly simplify its application.

I’m not convinced Daubert (read United States v. Houser, , for court-martial purposes) is just about the trustworthiness of the expert; it’s also about the reliability of the “science.”   So the article is worth reading because they do explain more than just the experts personal reliability.

Here is their proposed “rule.”

If an expert can account for the measurement error, the random error, and the systematic error in his evidence, then he ought to be permitted to testify. On the other hand, if he should fail to account for any one or more of these three types of error, then his testimony ought not be admitted.

For the math/science challenged among us they give definitions of the three errors on page 752.

Posted in:
Updated:

Leave a Reply

Your email address will not be published. Required fields are marked *