Let’s take a simple look at the Daubert requirements for a moment. The Court held that such evidence must satisfy a “reliability” standard to be admissible. Now the question is what the reliability standard is. There are three components of this standard. The first is, the sufficiency of the facts or data to be presented. The second is, was a reliable principle and/or method applied in the method. The third is, was the principle or method reliability applied to the analysis process. The Court instructed that the courts must look close and directly at the evidence. It states the courts must consider the “validity” or “reliability” of the evidence in question, its degree of “fit” with the facts and issues in the case, and the risks or dangers that the evidence will confuse the issues or mislead the jury.

On the one hand, Daubert commissions courts to confront the reliability of science directly and rejects the notion that merely qualifying an expert paves the way for whatever he might want to contribute. On the other hand, Daubert also rejects the notion that scientific or technical evidence may be excluded simply because it represents a new approach that has not yet been subject to the discipline of professional scrutiny. Daubert does not invite courts to decide that the testimony is right or wrong or to displace the adversary system. That system depends on cross-examination and allowing the other side to offer its own counterproof, and these mechanisms put before the trier of fact the necessary information to make a considered judgment, to decide which side should carry the day. Daubert states that in accepting the expertise of a witness does not entail rejecting the expertise of another witness who has developed an opposing conclusion.

Through what is presented some type of testimony the judge will decide as to if of the three requirements were met. Because of judge’s being human, they will most like be different opinions rendered as to the expert’s ability to testify based on the same facts covering the three areas mentioned. I have been involved in three cases where the facts were the same as to the areas mentioned. Two courts allowed the testimony, and one did not.

The question about the scientific method being properly applied has nothing to do with the degree of certainty the expert expresses. One will always expect the expert to believe his opinion is the correct one and the other opinions are wrong. To matter what phrase is uses to say they properly applied the scientific method it is the judge that will make that decision and not the expert.
Have you ever looked at the number of satellites your GPS is using when it takes you to a location correctly. I have played with this by altering the location of my GPS antenna. What I found is that I got the same accurate directions to reach the location when I was only using four or eight satellites. The example of the GPS may not be the best one. One can say the odds of getting the correct information from the GPS is reduced, but there is not a certainty that it will not give you’re the correct information. What you may consider not the reliable or proper use of the scientific method does not mean the correct conclusion cannot be reached.

The validity of the phrase is not determined by the person using the phrase, but by the person receiving the information. In the case of the phrase in question it will be the judge. If the judge is presented with the information that the Department of Justice does not consider it to be a valid phrase and has ordered it not to be used by those working in the forensic science disciplines within the Department of Justice, I am sure this will influence his opinion as to the validity of the phrase. Then he is supplied with information from the National Institute of Standards and Technology. This is another federal agency. The judge will be told this agency tasks is to promote U.S. innovation and industrial competitiveness by advancing measurement science, standards, and technology in ways that enhance economic security and improve our quality of life. Because of the action of the Department of Justice and the National Institute of Standards and Technology, I believe the use of the phrase will become an up-hill battle. Personally, I choose not to get into battles that I do not need to.

Jim Mazerat
Forensic Investigations Group