I've generally interpreted Daubert to ask whether the underlying theory or method has been peer-reviewed (i.e. does it have adequate supporting research), not whether the application of that method in a specific case was peer reviewed.Charles Parker wrote:Correct me if I am mistaken but Daubert states has the methodology been peer reviewed. It does not say anything about studies of the methodology been peer reviewed. I think the word study has been added to that part of the gatekeepers role.
For legal purposes, this is ultimately in the eyes of the appellate courts -- as the appellate cases come out affirming admissibility, the trial level challenges will dwindle because the issue has been resolved in that state. BUT, that will happen only to the extent that a solid challenge has been made in the appellate court based on a good trial record -- in the places where the appellate court has just said 100 years is good enough without apparently considering the substance of the challenge, folks will keep trying to bring cases to get them to deal with the substance.Correct me if I am wrong but what is adequate? Is that not a subjective criteria? If 4 articles are published in a peer reviewed journal I would consider that adequate but a defense attorney probably would not. Who is going to define adquate? The defense, the prosecutor, academia. I think it should stay with the gatekeeper.
It isn't just the studies, tho. We've got Mayfield, which seems to be at least in part a confirmation bias problem. And we've got Cowans, which may be a confirmation bias problem, at least as to the defense experts who apparently missed the mis-ID. (I'm still hoping BPD will someday release more of the original court exhibits.)Would not that statement be more correct to state "the possible problem with confirmation bias". I do not think two studies, one with students and the other with LPE of which not one made a Type 1 error is adequate converging evidence to state that it is a problem. It might be a problem but certainly needs more studies before it moves from might be to absolute.
I'm comfortable arguing that confirmation bais is a potential issue whenever the examiner (in any field) has biasing information when making the exam or when reviewing another's results. Whether it is an actual problem in any specific case depends on the information, the quality of the data being examined, and the methods used by that examiner.
Remember that the proponent of the evidence has to show it is reliable. It the defense attorney's job to ask the question and the prosecutor's job to say it isn't a problem.There are not sufficient adquate studies to comply with the principle of converging evidence to say it does not.
That's not a question with a simple answer. Let's go back to Mayfield and assume the ID was an exhibit in a trial and the Spanish police had not come forward -- should that match been admitted into evidence, leaving the defense free to bring out on cross the quality of the exhibit, the non-blind review and realtionships between the examiners, and the potential for confirmation bias on the court-appointed expert's part? And if it was admitted in that manner -- anyone want to give odds the jury would not have found the ID reliable?The evidence should be judged by the gatekeeper on its weight and not its admissibility! Or should that principle be discarded as well.