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Knightly can't believe the numbers
(Photo by Amy Kushner) |
Knightly
and I haven’t been posting much as we’ve been hard at work on a new article,
The
Daubert Double Standard. I’ll be
submitting it in late January to the law reviews for publication, but here’s a
sneak peek.About a decade ago in 2010, Wisconsin lawyers learned that our
state would soon be switching to the Daubert reliability standard for the admissibility
of expert testimony at trial. In
criminal cases, the prosecutor (not the defense lawyer) uses the vast majority
of expert witnesses, so this change from mere relevance to the more
stringent reliability was supposed to benefit the defense. It was supposed to end the
prosecutor’s use of pro-state advocates masquerading as experts to put the gloss of faux expertise on the state’s cases.
Despite
what was supposed to happen, many of us in the criminal defense bar knew
better. In 2010, I complained aloud to
anyone that would listen that this new, more stringent Daubert reliability standard
would not limit the prosecutor’s use of “experts” in any way; it would only make
it more difficult for defendants to use their own, legitimate experts at trial.
Now
that nearly a full decade has passed, what happened?
