ALR Student’s Corner: Modern Scientific Evidence and Its Role in Law


modernscientificevidence


Introduction

The first time the United States Supreme Court integrated a “sophisticated understanding of science into legal decision-making” was in the landmark decision of Daubert v. Merrel Dow Pharmaceuticals, Inc.[1]. “The Daubert Court held that under the Federal Rules of Evidence trial court judges must act as ‘gatekeepers,’ and evaluate the validity of the basis for proffered scientific expertise before permitting the expert to testify.”[2] The Court in Daubert did not require lawyers and judges to be trained as scientists; the Court did, however, “demand a fair degree of scientific sophistication.”[3] It was this demand from the United States Supreme Court that paved the way for the treatise, Modern Scientific Evidence: The Law and Science of Expert Testimony.

Location in CSL Library

First, you must locate the treatise’s specific call number, KF8961.M63v.1. This can be found through the CSL library catalog. Next, you must navigate to the “Treatises” section in the northwest corner of the school library. Proceed to the “Evidence” and “Criminal Law” shelf and, four rows up from the bottom, you will find the five volumes of Modern Scientific Evidence.

Contents of Modern Scientific Evidence

The treatise is contained in five volumes that were initially printed in 1997. The most recent addition is from 2012-2013. These volumes contain a Summary of Contents, a Table of Contents, a Glossary of Terms, a Table of Laws and Rules, a Table of Cases, and an Index. The text challenges the use of “generally accepted” scientific ideas when ruling on admissibility or managing expert witnesses in state and federal courts, and prepares trial attorneys to explain scientific concepts during admissibility arguments and to confidently elicit or challenge expert testimony during trial.[4] The 2012-2013 Edition updates thirty-five chapters with new developments, commentary, authorities and insights from all six of the treatise’s authors, as well as numerous other expert scientists.[5] In particular, Chapters 31 (DNA Typing) and 33 (Fingerprint Identification), prepared under the direction of Erin Murphy and Jennifer Mnookin, respectively, have been extensively revised to reflect current developments and views on their subjects. Other chapters with significant updates include: 1 (Admissibility of Scientific Evidence), 9 (Insanity and Diminished Capacity), 11 (Sexual Aggressors), 23 (Epidemiology), 39 (Fires, Arsons, and Explosions), 41 (Alcohol Testing), 42 (Drug Testing), 43 (Structural Engineering), and 45 (Economic Damages).[6]

Research Exercise

To practice using Modern Scientific Evidence as a secondary source, imagine you have been asked by your boss (a general practice attorney) to assist her with determining causation in a toxic-tort case. She tells you the opposing counsel is utilizing “junk science” and she wants you to draft a “Daubert motion” to exclude certain statistical studies. To start your research, you would most likely turn to the index of Modern Scientific Evidence. There you will look up Toxic Tort Cases and the treatise will direct you to look under Epidemiology. While the sub-headings under Epidemiology will give you a good basis for understanding toxic torts, you will notice a specific sub-heading for Daubert factors under section 23:17. Switching over to Volume 3 of Modern Scientific Evidence, the Daubert factors will provide information on scientific admissibility under the Federal Rules of Evidence Rule 702. However, these four factors will not provide enough background to draft a Daubert motion.

Looking now to the table of contents, you will notice Chapter Six is titled “Statistical Proof” and discusses the legal issues of the admissibility and weight of statistical studies. Here you will find ample Supreme Court references and requirements that form the basis of statistical studies and the evolution of their admissibility in court. Through a combination of the analysis of the text and some further research involving the cases mentioned in the text, now you have the tools necessary to draft a Daubert motion. Congratulations, your boss will be pleased with your research skills and the money you saved her by utilizing a free print treatise available to you in the CSL Law Library.

Conclusion

Modern Scientific Evidence is a great secondary resource, not only because it is free to library users but also because the future is fast approaching and scientific evidence will play larger and larger roles in all aspects of the law as technology continues to improve. Updated analysis can be found throughout the copy of the 2012-2013 Edition. Updates for 2013 can also be found on both Westlaw (Database Identifier: MODSCIEVID) and WestlawNext.

~Jeff Poulsen, Class of 2013~

Class Advisor – Cory M. Lenz, Esq.


[1] 509 U.S. 579 (1993).

[2] Modern Scientific Evidence: Statistics and Research Methods; Faigman, David. Volume 1, pp. vii (2013).

[3] 509 U.S. 579 (1993).

[5] Id.

[6] Id.

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