Daubert v. Kelly

[Charles Parker]

I would like some thoughts out there on the following:

Texas became a Daubert state in 1995.

Several months ago I was at a pre-trial hearing and the ADA stated that they would be asking me Kelly questions, and would I be prepared for them. I responded that I was aware of Daubert questions and are the Kelly questions more or less like Daubert.

The ADA then handed me a sheet of paper with the following information on it.

Kelly v. State Court Questions

Three Criteria Must Be Met:

1. The underlying scientific theory must be valid.
2. The technique applying the theory must be valid.
3. The technique must be properly applied.

Non-exclusive facts that is useful in answering the three (3) criteria.

1. The extent to which the underlying scientific theory and technique are
acceptable as valid by the relevant scientific community?
2. The expert's qualifications?
3. Existence of literature supporting the underlying scientific theory?
4. The potential error rate of the scientific theory?
5. Availability of other experts?
6. Can the theory & technique be explained with clarity?
7. Experience and skill of the person doing the application?

Now I am aware of the questions involved in Daubert.
1. Whether the theory or technique has been tested?
2. Whether the theory or technique has been subject to peer review and
publication?
3. Known or potential error rate?
4. Existence and maintenance of standards controlling its operation?
5. Does it have widespread acceptance in the relevant scientific
community?

Now admittedly some of the Kelly questions can be answered like the Daubert questions. However for me some are different and required some thought the night before trial.

I am curious if these are standard Kelly questions from some of the readers that currently work in a Kelly state instead of a Daubert state?

This has happened twice now, where the ADA wanted to ask Kelly style questions in a Daubert state.

Your thoughts and views.

[Les Bush]

Hello Charles

It appears Ive missed the significance of the Kelly case and its importance to Fingerprint science. Could you please give me a very quick summary of what science was involved in Kelly and a reference to the case. Thanks and regards. Les

[Charles Parker]

Les, I would be glad to.

Gary from Phoenix sent this to me, and it is an article that talks about the two cases: Kelly and Daubert.

I hope this is what you are looking for.

http://fdcc.digitalbay.net/documents/hagan.htm

[Les Bush]

Hello Charles.

Thanks for the link, Ive caught up on the differences between the two 'tests'. We have heard of Frye in Australia and of Daubert but Kelly is something new even though it happened back in 1976. It seems like there are jurisdictional struggles going on in USA legal circles as to who can best 'test' forensic evidence. In Australia we have a similar democracy with both state and federal jurisdictions. In time it would be reasonable for national standards to be agreed upon as to what constitutes 'novel' science and 'established' science and then have 'tests' for each. Since our 'expertise' is highly portable between jurisdictions and internationally it would help enormously if we knew the agreed position of our science as 'novel' or 'established'. I believe that fingerprint science and in particular identification has been well established. Others like Cole would probably disagree but thats a democracy at work. Regards. Les

[Cindy Rennie]

There are two Supreme Court of Canada decisions on the admisibility of expert opinion evidence that pre-date DAUBERT. (In both cases, the expert was a psychiatrist testifying in a sexual assault trial. Neither matter involved fingerprint evidence, but the decision covers ALL expert testimony).

The judge in R. v. MOHAN (1994) set out the criteria governing the admissibility of expert evidence:
(1) relevance;
(2) necessity in assisting the trier of fact;
(3) absence of any exclusionary rule;
(4) properly qualified expert.

The judge in R. v. J-L.J. (2000) listed the same criteria as mentioned in DAUBERT: (1) tested, (2) reviewed; (3)potential error rate; (4) generally accepted; (5) what standards control the process.

Part of my job entails offering "expert" testimony in court, and the defense has brought up all of these cases (and more) during the 'qualification' process.

As a person with a terrible memory, I have developed some tricks to help me remember these steps when I testify. I remember the DAUBERT criteria as "T.R.A.P.S." (tested, reviewed, accepted, potential error rate, standards). The MOHAN criteria are "r.a.r.e." - (relevant, assist, rule, expert).