The Daubert Double Standard -- Now In Print!

Check out my newest article, The Daubert Double Standard, now in print at the Michigan State Law Review.  Daubert has been an absolute disaster for the defense.  The now decade-plus old law was supposed to make it tougher to use so-called expert testimony at trial.  But the actual outcome was easy to predict: with regard to the state's evidence, nothing has changed.  The courts simply rubberstamp any pseudo-expert the state tries to use.  Worse yet, the courts impose the high Daubert hurdle on the defense, thus turning Daubert into a pro-state double standard.  In my study of all appellate and SCOW cases in roughly the first decade of Daubert, the state is 134-0 against the defense.  

You can find the article here.  You can find all of my articles here.  You can read the abstract for the article after the jump.  And for more on Daubert, see my U. Illinois L. Rev. Online article, Daubert Strategies for the Criminal Defense Bar.

Abstract

In theory, the Daubert reliability standard for the admissibility of expert testimony requires the judge to act as the 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 in 2011. 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 of judicial discretion, this Article makes easy-to-implement reform recommendations to restore defendants to equal footing with the state.