"Never be a spectator of unfairness or stupidity."

Check out my new law review article, hot of the press: The New Absurdity Doctrine, 125 Penn State L. Rev. 353 (2021).  You can read the abstract after the jump.

The Daubert Double Standard, 2021 Mich. St. L. Rev. __ (forthcoming, 2021)

Check out my new article, The Daubert Double Standard, just accepted for publication in the Michigan State Law Review.  You can find the pre-publication draft of the article here, or look for it on the articles page of my website.  Here's the abstract: 

In theory, the Daubert reliability standard for the admissibility of expert testimony requires the judge to act as gatekeeper and prevent pseudo-expertise from reaching the jury. And in criminal cases, Daubert is supposed to benefit the defense, as prosecutors employ the vast majority of such witnesses—many of whom are merely pro-state advocates masquerading as experts. However, many defense lawyers believe that, in practice, Daubert does nothing to protect defendants from these pseudo-experts and instead makes it more difficult for defendants to call their own, legitimate experts. 

To test this informal hypothesis, I conducted an intra-state analysis of all Daubert appellate cases since Wisconsin adopted this federal standard nearly a decade ago. In the 68 cases consisting of 134 judicial decisions across all levels of the court system— trial courts, appellate courts, and the state supreme court—prosecutors have amassed an undefeated 134-0 record. Shockingly, regardless of the type of case, the type of expert, and the party calling the expert, the defense has never won a single Daubert decision at any level of the court system. 

How can a standard that is supposed to benefit the defense produce a record where the prosecutor never loses? This Article goes inside the numbers and identifies eight pro-state judicial tactics on which the government’s towering 134-0 record is built. After exposing and explaining these blatant abuses, this Article makes easy-to-implement reform recommendations to restore defendants to equal footing with the state.