Judge Domitrovitch began her discussion by noting that the courts have always viewed science as an ally in the search for the truth. The worlds of law and science have been linked since Archimedes used the first law of hydrostatics to prove that the royal goldsmith was adulterating the gold content of the crown.
Modern judges measure the credibility of the testimony of proposed expert witnesses against the standards established in cases such as FRYE and DAUBERT.

The decision in FRYE v. US allows testimony from an expert witness provided that: (1) the testimony is sufficiently based upon reliable facts or data; (2) the testimony is the product of reliable principles and methods; and (3) the witness has applied the principles and methods reliably to the facts of the case.
The decision in DAUBERT v. MERRELL DOW outlined five criteria to be used to establish the scientific basis of a discipline before an expert can testify as to their findings: (1) can the theory be tested; (2) is it subject to peer review and publication; (3) what is the known or potential rate of error; (4) what standards control the operation of the technique; and (5) does it have widespread acceptance in the relevant scientific community.

Judge Stephanie (as she prefers to be called) outlined the kinds of questions that she would like to hear answered when presiding over a Daubert/Frye hearing.

Under FRYE:

(1) Is the underlying reasoning or methodology scientifically valid?;
(2) Can it properly be applied to the facts?


Under DAUBERT:

(1) Testing: Can the theory be tested? Was it tested? How? Who conducted the test? What methods were used? How was the data collected? Was the sample size large enough to be statistically significant?

(2) Peer Review: Who reviewed the tests and data? Were there true “peer review” journals? Did the Board of Editors scrutinize and test the theory before publishing? Was it an “informational exchange” journal? Was the article published without the contents being tested? Are there journal articles critical of the process or methodology?

(3) Error Rate: What is the rate of error? Was it statistically significant? What is the rate of ‘acceptability’?

(4) Standards: What standards control the operation of the technique?

(5) General Acceptance: (also known as a ‘Frye test’) Are the principle and methodology generally accepted by the relevant scientific or technical community?

Judge Stephanie believes that judges, lawyers and expert witnesses need to be educated in each other’s line of reasoning and mode of communication. Judges should be familiar with the issues and concepts raised in FRYE and DAUBERT and take a more active role in deciding if expert testimony should be admitted. If necessary, the judge should question the expert witness themselves or seek the advice of an independent expert to ensure that the witness is qualified and the testimony offered by that witness is reliable.
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The Paradigm Shift in Forensic Science
Presented by Jan Seaman Kelly, Forensic Document Examiner, Las Vegas Metropolitan Police Forensic Laboratory

Jan described a paradigm shift in Daubert/Frye hearings as they relate to testimony regarding questioned documents and forged handwriting. She noted that many of her comments can be applied to expert witnesses in other fields, such as firearms, tool marks, and latent prints.

Jan began by outlining the duties of the various players in the courtroom. The Judge oversees the proceedings and ensures that the trial follows set procedures. It is the Judge who decides if certain evidence, including expert testimony, will be admitted. Presiding judges want assurance that the proffered expert and the discipline are both reliable, and that the testimony of the expert is based on tested scientific methodology.

The prosecutor presents the case to the judge (and jury, if there is one) by way of direct testimony and cross-examination of witnesses. It is the duty of the prosecutor to ensure that the testimony given by the expert witness establishes the fact that the methodology used and the conclusions reached by the witness are based on principles of science.

The Defense counsel represents the interests of the accused, and may challenge the qualifications of the expert, the methodology used to reach their conclusions, and/or the scientific foundations of their findings.
The expert witness should be a neutral spokesperson for the evidence. It is the duty of the expert witness to ensure that their testimony establishes that the methodology used and the conclusions that they reached are based on principles of science.

The credentials of the expert include their education, experience, training, performance in Certification and Proficiency tests; memberships in related organisations, and the results of any case peer reviews that they have undergone.

The methodology referred to follows the Daubert model. The expert should be able to show how the process has been tested, reviewed, accepted in the scientific community, what standards control the process and what the known or potential error rate is.

Reliability is demonstrated through testing, but how much testing is required, and what format should the tests take? Surveys of judges have shown that ‘proficiency testing’ is the most popular gauge of the reliability of a witness, followed closely by ‘case peer review’.

Groups such as The Forensic Science Foundation and the Proficiency Advisory Committee of the C.T.S. (Collaborative Testing Services) recommend that a nationwide program of continuous proficiency testing of crime labs be established and administered by a peer group; that future test programs should contain a provision to render technical assistance; and that a series of workshops be set up to address education and training needs.
 
Jan noted that the proficiency testing programs are not without controversy. Some laboratory directors questioned whether the research findings would have an adverse effect on their laboratories, while others felt that the design of the research project did not concentrate on assuring the precision or accuracy of data collection*.

Jan believes that proficiency tests should be used as a guide to pinpoint weak or problem areas so that organizations can direct their training accordingly. Different avenues of testing should be explored, and partnerships with academic researchers should be maintained and nurtured to ensure cooperation between the worlds of forensic scientists, academia, and the court system.

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