1. Who’s Daubert?

2. Frye Standard
"Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone, the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs." 54 App. D.C., at 47, 293 F., at 1014

3. Federal Rule of Evidence 702
"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, [509 U.S. 579, 8] or education, may testify thereto in the form of an opinion or otherwise."

4. What is a Daubert Hearing?
A term from a civil case entitled: Daubert v. Merrell Dow Pharmaceuticals, 113 S. Ct (1993)
The opinion governs the admissibility of scientific evidence in Federal court and many state and local jurisdictions which have adopted it.

5. Daubert Opinion States that:
• the Federal Rules of Evidence superseded “general acceptance” tests for admissibility of novel scientific evidence;
• the rigid “general acceptance” test, which arose from Frye v United States, 293 F2d (D.C. Cir. 1923), is at odds with the liberal thrust of the Federal Rules of Evidence.
the trial judge must still screen scientific evidence to ensure it is relevant and reliable;
“the focus, of course, must be solely on principles and methodology, not on the conclusions they generate;”
and, factors the court should consider include:
testing and validation
peer review
rate of error
“general acceptance”

6. Relevant
"Relevant evidence" is defined as that which has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Rule 401.

7. Reliable
The primary locus of this obligation is Rule 702, which clearly contemplates some degree of regulation of the subjects and theories about which an expert may testify. "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue," an expert "may testify thereto." (Emphasis added.) The subject of an expert's testimony must be "scientific knowledge.“
Proposed testimony must be supported by [appropriate validation] - i.e., "good grounds," based on what is known. In short, the requirement that an expert's testimony pertain to "scientific knowledge" establishes a standard of evidentiary reliability

8. Has the theory/technique been tested?
Ordinarily, a key question to be answered in determining whether a theory or technique is scientific knowledge that will assist the trier of fact will be whether it can be (and has been) tested.

9. Has it been subjected to peer review and publication?
Another pertinent consideration is whether the theory or technique has been subjected to peer review and publication.
But submission to the scrutiny of the scientific community is a component of "good science," in part because it increases the likelihood that substantive flaws in methodology will be detected.
The Court does not make publication an absolute test of whether a theory/technique is reliable

10. What is the error rate?
Additionally, in the case of a particular scientific technique, the court ordinarily should consider the known or potential rate of error and the existence and maintenance of standards controlling the technique's operation,
This raises the question of whether it refers to the error rate of the methodology or the individual examiner

11. Is it “generally accepted” within the scientific community?
Finally, "general acceptance" can yet have a bearing on the inquiry. A "reliability assessment does not require, although [509 U.S. 579, 14] it does permit, explicit identification of a relevant scientific community and an express determination of a particular degree of acceptance within that community."
Widespread acceptance can be an important factor in ruling particular evidence admissible, and "a known technique which has been able to attract only minimal support within the community," Downing, 753 F.2d, at 1238, may properly be viewed with skepticism.

12. To summarize: "General acceptance" is not a necessary precondition to the admissibility of scientific evidence under the Federal Rules of Evidence, but the Rules of Evidence - especially Rule do assign to the trial judge the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand. Pertinent evidence based on scientifically valid principles will satisfy those demands.

13. Why is this important? …and so it begins: Motion to Exclude
Motion to Suppress
Evidentiary Admissibility Hearing
Daubert Challenge
Frye Hearing
(Your State Law) Evidentiary Challenge

14. First Steps Prosecutor must understand the relevance of the situation
Request a continuation
Obtain a copy of the Defense Motion
Defense Expert?
File motion to counter the Defense motion

15. Key Get all your info on the record Present Science
Daubert Prongs
Present YOU and your work
Rule 702

16. Preparations Compose Power Point presentation
Gather exhibits for State to enter into evidence
Compile notes for witness stand
Budget time for reading

17. Admissibility Hearings
Government has burden of proof
Rules of Evidence do not apply
Hearsay admissible
Judge’s decision based on preponderance of evidence
Don’t have to satisfy all prongs.
YOU don’t necessarily have to testify

18. Preparation Assistance
Ask for help
Breaking down Defense Expert
Reach out
Others who have experience
Others who have gone against “expert”
Scientific community
SWGs
Admissibility Resource Kits

19. Physical evidence cannot be wrong; it cannot be perjured;
it cannot be wholly absent.
Only in its interpretation
can there be error.
-- Paul L. Kirk, Crime Investigation 2
(2d. John I. Thornton ed. 1974)

20. Admissibility Generally accepted Scientifically tested
Peer reviewed and published
Standards and controls
Known or potential error rate

21. General Acceptance
Forensic Comparative Science and Pattern Identification is well-grounded in the scientific method and has been generally accepted by the forensic science community for decades.
Fingerprints, Firearms, Toolmarks, Footwear/Tire Impressions, Physical Match
Literature
Academic programs
Grant programs
Widespread practice in other laboratories

22. Testing of the Scientific Principle
Experiments designed and implemented using the scientific method
Observation / Question
Hypothesis development (& counter-hypothesis)
Experimentation
Results & Evaluation
Confirmation
Report with Peer Review
Continuous testing and re-testing

23. Standards and Controls
Training to competency
Examine evidence following laboratory’s procedures
Criteria for ____________ Examination
Standardized Conclusion Scale and verbiage
Technical review via blind reexamination by second qualified examiner
Casework auditing
Proficiency testing
Testimony review

24. Known or Potential Error Rate
Error Rate of the Methodology
Error Rates of Laboratories/Examiners
Validation Studies
Proficiency Tests
History of reported False-Positives
In literature
Laboratory Quality Assurance records
Published audit/ assessment reports
Defense Experts re-examination reports
Court Rulings
Periodicals and Newspapers
Critics

25. Questions ???