Daubert, Schmaubert: Criminal Defendants and the Short End of the Science Stick

Abstract

The science behind eyewitness identification limitations is beyond reproach, and yet it is routinely excluded. And the obvious alternative explanation—that the meaningful variable is hard versus soft science, rather than pro-prosecution versus pro-defense—is belied by courts’ eagerness to admit evidence of the soft, lousy science of future dangerousness. Leaving aside discussions about the validity of that presumptive dichotomy, one counterexample may suffice to illustrate that the difference is unlikely to be one of a hard versus a soft science: Courts almost always admit evidence of future dangerousness. Fingerprint evidence has a long and respectable history in court. The far-reaching implications of juror education on the issue are precisely why, at bottom, courts have refused to admit the expert testimony: It invades the province of the jury by impeaching the other witnesses’ credibility. Testimony amounting to nothing more than whether one witness believes another witness is telling the truth truly would be supremely unhelpful.

Cite this work

No public copy is stored for this record, so only the metadata is cited.

Stored only when both papers are in the corpus — 15 citations exist upstream.

Papers that cite the same references — the relational fallback while embeddings are still backfilling.