In my Iowa Law Review article, discussed in my previous post, I point out that Daubert/amended Rule 702 haven't done much as yet to improve the state of forensic science, and are unlikely to do so in the future.

One reason that forensic science (itself a misnomer, as there is little science involved, for the most part) has emerged mostly unscathed from the upheaval in expert evidence law, I suspect, is that the "Daubert Trilogy" of expert evidence cases--Daubert v. Merrell Dow Pharmaceuticals, General Electric Co. v. Joiner, and Kumho Tire v. Carmichael--on which Rule 702 is an elaboration, were all civil cases. Moreover, despite the obvious relevance to criminal cases, the criminal law bar was virtually silent when these cases were being decided. For example, when Daubert was before the Supreme Court, out of over thirty amicus briefs, not a single one was filed by an organization concerned with criminal justice issues. Almost all the energy opposing "junk science" has come from corporate America and its attorneys, with the opposition coming from the plaintiffs' bar.

Political liberals, especially elected officials (who, not coincidentally, get much funding from the plaintiffs' bar, and very little from public defenders and their clients) have generally opposed attempts to crack down on bad science (and other forms of expertise) because of the latter dynamic, and have mostly ignored the ongoing abuses of expert testimony in the criminal justice system. Prosecutors, for their part, have fought tooth and nail against attempts to restrain their use of dubious evidence, especially at the state level--I've heard from sources in several states that the main barrier to adopting a rule requiring reliable expert testimony in their states has been the strong opposition of prosecutors who fear that such a rule will make it hard for them to get convictions. Of course, their job, properly, is not to "get convictions," but to convict the guilty; and even though Daubert has actually had very little effect on prosecutors' ability to get convictions, the mere idea that their experts may be held to some reasonable standard of reliability is enough to raise prosecutors' hackles.

For reasons discussed in my Iowa article, mere tinkering with the rules of evidence is unlikely to change the current dynamic in which quackspertise is almost routinely admitted in criminal cases. But I wonder if more progress would have been made by now if quackspertise in the forensic contest had received a fraction of the attention of junk science in civil litigation, from the Supreme Court and otherwise.

For essential reading on the subject, see Paul C. Giannelli, Wrongful Convictions and Forensic Science: The Need to Regulate Crime Labs, 86 N.C. L. Rev. 163 (2007) (detailing many of the problems with forensic science) and Roger Koppl, How to Improve Forensic Science, 20 Eur. J.L. & Econ. 255 (2005) (providing the best ideas I've seen to improve forensic science, using economic reasoning). Todd recently linked to a popular version of Koppl's ideas, published in Forbes.