St. Mary's Law Journal


The controversy over the proper standard for the admissibility of scientific evidence is an argument over the value of a jury trial compared with a bench trial or decisions by scientists. The argument has both a constitutional dimension in the provisions relating to a jury trial, compulsory process and due process, and a nonconstitutional dimension in the ordinary law of evidence. In the recent case of Daubert v. Merrell Dow Pharmaceuticals, Inc., the United States Supreme Court took a different approach, basing its decision almost entirely on an interpretation of the particular words used in Rule 702 of the Federal Rules of Evidence. Daubert holds that under the Federal Rules of Evidence, “scientific” evidence is not admissible unless it is “scientifically valid” and “reliable.” The Court also suggested scientific evidence might be kept out under Federal Rule of Evidence 403, which states certain evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. The decision in Daubert was directed to the question of admissibility, not sufficiency. Rule 702 and the claim that the rule creates a special requirement for a particular class of relevant evidence, leaves several questions unanswered: what is the nature of the class to which the requirement applies, what is the nature of the requirement that is imposed, and what is the justification for imposing it? If the concern is with jury incapacity to deal with a certain kind of evidence, the Court has not made the case that such an incapacity exists. In applying Daubert, if the lower courts find it difficult to discern the category of “science,” they may drift to the broader category of “expert” and impose a reliability requirement on that entire category of evidence.


St. Mary's University School of Law