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    Scientific Evidence

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    1. Locate information on a case in which scientific evidence was used and provide a detailed analysis of that case and of that evidence. Provide why that specific type of evidence was used in that case. Specifically, explain why this evidence passed the Daubert test.

    2. Create a list of tips you can provide rookie officers on what to look for, what to do and what not to do when they are investigating a crime scene.

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    1. Locate information on a case in which scientific evidence was used and provide a detailed analysis of that case and of that evidence. Provide why that specific type of evidence was used in that case. Specifically, explain why this evidence passed the Daubert test.

    We take the original case:
    In 1993, the U.S. Supreme Court handed down the decision of Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed. 2d 469, (U.S. Jun 28, 1993) (NO. 92-102). The case involved the admissibility of novel scientific evidence. But to begin to understand the significance of Daubert, one needs to view the case in its wider context, going back 70 years to Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

    Scientific evidence is evidence culled from a scientific procedure that helps the trier of fact understand evidence or determine facts at issue in a judicial proceeding. Under rule 702 of the federal rules of evidence and similar state court rules of evidence, "a witness qualified as an expert by knowledge, skill, experience, training, or education" may testify and offer opinions...

    In Daubert v. Merrell Dow Pharmaceuticals, the United States Supreme Court held that the Federal Rule of Evidence 702, rather than the "general acceptance" standard established by Frye v. United States, controls the admissibility of expert scientific evidence in federal court. That rule allows the admission of expert testimony whenever scientific, technical, or other specialized knowledge will assist the evaluation of fact in understanding the evidence or determining a fact in issue.
    On June 22, 1998, the Supreme Court granted certiorari in an Eleventh Circuit case which held that Daubert applies only to scientific expert testimony, i. e., testimony based on application of scientific principles or theories, and not to "non-scientific testimony" based on an expert's personal experience and skills. An earlier court reversed a district court decision and allowed the testimony of an expert who opined that a defective tire design resulted in an accident involving a minivan.. The Supreme Court was now faced with the challenge of determining whether Daubert applies to all expert testimony or whether it instead is limited to scientific fields.
    Daubert requires that trial judges consider factors other than whether the purported expert's testimony is based on methodology subject to "general acceptance" in the scientific community, there by allowing the admission of some testimony even if the methodology is not "generally accepted". However, Daubert also requires that all scientific testimony must not only be relevant, but reliable, as a general standard.
    To qualify as scientific evidence, an inference, assertion, or opinion must be derived by scientific method. Under Daubert, the trial judge is required to apply a two-step analysis. First the trial judge must determine whether the expert is proposing to testify to actual scientific knowledge. Second, the trial judge must determine whether such knowledge will assist the trier of fact in understanding or determining a fact in issue.
    This preliminary Daubert assessment should include consideration of the expert's reasoning or methodology underlying the testimony. The court should consider both the validity of the reasoning or methodology and whether that reasoning or methodology properly can be applied to the facts at issue. The trial judge should then render an opinion of its findings on these issues. It may consider, as the United States Supreme court did in Daubert, the following factors in determining the admissibility of expert testimony:
    1. The "testability" of the expert's theory or technique,
    2. Whether the theory or technique has been subjected to peer review and publication,
    3. The known or potential rate of error, and
    4. Whether the methodology is generally accepted in the scientific community.
    The proponent of the evidence must demonstrate that the proposition offered is based on sound scientific procedures and the acceptability of the methodology validating the proposition in question. This standard for evidence requires the proponent of the expert testimony to lay a more extensive foundation than was previously required under the Frye rule. The proponent can no longer simply elicit the expert's conclusionary testimony, but must elaborate to some extent about the scientific methodology employed to verify the hypothesis - i.e. the test conducted, the standards employed, and the error rate found.
    Before admitting scientific expert testimony, the trial judge must assess both the reliability of the general scientific theory and methodology and/or reliability of the application of the theory and methodology to the facts of the case. Essentially, the test is whether the evidence is "scientific knowledge", whether it will assist the trier of fact, and whether its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, or misleading the jury.
    Basically, under Daubert the court acts as a gatekeeper with regard to admitting expert testimony and the following are important considerations:
    1. The evidence must be scientific (i.e. Grounded in the methods and procedures of science).
    2. The evidence must be knowledge (i.e. Is the testimony subject of belief or unsupported speculation?).
    3. The evidence must assist the trier of fact by having a valid scientific connection to the pertinent inquiry.
    4. If the expert opinion is based on otherwise inadmissible evidence, the opinion is to be admitted only if the facts or data are of a type reasonably relied upon by experts in the particular field in forming opinions or inferences on the subject.
    In short, with the advent of Daubert, the judge now has to determine: "Is this good science?" The court must exercise independent judgement regarding the reliability of the science. The proponent of the expert evidence has to demonstrate that it is good evidence, perhaps in spite of what other experts think about it.
    The Daubert dichotomy is that it is, in a sense simultaneously more and less restrictive. It allows for more science to come in, (science does not have to be generally accepted) while at the same time it allows less science to come in (the judge must keep out "junk science").
    This is what a website http://www.lectlaw.com/files/lit03.htm says:

    "How are we supposed to know?" Chief Justice William H. Rehnquist exclaimed at one point to the lawyer for a pharmaceutical company that was disputing any link between Bendectin, a drug it once made, and birth defects in the offspring of women who took the drug while pregnant.
    "You're a lawyer, you're not a doctor," the Chief Justice continued, addressing Charles Fried, a Harvard law professor and former Solicitor General, representing Merrell Dow Pharmaceuticals Inc., now Marion Merrell Dow of Kansas City, Mo. "Here you are telling me that certain things are so in the scientific field. You may know, but I don't."
    The case requires the Court to formulate a rule at a time when science is at the forefront on questions like the validity of DNA fingerprinting and medical malpractice.
    Opposing Approaches
    Courts have taken a variety of approaches over the years, all of which appeared to be on the table today in Daubert v. Merrell Dow, No. 92-102. The basic dichotomy is between approaches that make a judge the gatekeeper of the validity of evidence a jury is permitted to hear, and those that rely on the jury's ability to sift through the evidence and reach its own judgment.
    In this case, the United States Court of Appeals for the Ninth Circuit, in San Francisco, placed itself at the gatekeeper end of the spectrum in dismissing a case against Merrell Dow brought on behalf of two children who were born with shortened or missing limbs to women who took Bendectin to ward off nausea during pregnancy.
    The appellate court ruled that the trial court properly excluded scientific testimony the plaintiffs had sought to present that attempted to link Bendectin to the birth defects through chemical studies and animal ...