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Professor D. Michael Risinger

Seton Hall Law Professor Michael Risinger featured in Washington Post

Renowned evidence scholar, Seton Hall Law Professor D. Michael Risinger of The Last Resort Exoneration Project participates in a six-part online symposium for the Washington Post on the use of forensics in the criminal justice system.

Question one asks "Obviously we need some way of assessing the reliability of scientific and expert testimony. What would the ideal system look like?"  Professor Risinger answers: 

An ideal system would take seriously the mandate of Kumho Tire v. Carmichael [which applied the Supreme Court’s ruling in Daubert to nonscientific expertise] to judge reliability not globally by forensic discipline, but specifically in regard to the expert claim being made and applied in the case at hand. The logic of this seems inescapable if one wants to determine the reliability of what is actually being offered in these cases. Unfortunately, this approach also is neither quick nor easy, which is why many judges prefer to make global determinations driven by precedent. Such determinations do not require them to spend time and effort learning about each expert task or application in the cases that come before them. I believe the so-called Frye general acceptance approach [the approach taken by most courts in the country before Daubert] hangs on in many jurisdictions because it lends itself to such a global, precedent-driven approach.

The second aspect of an ideal system would involve well-prepared adversaries who could find, marshal, and explain the import of various kinds of information bearing on the reliability of conclusions in the case at hand. This would include most especially research directed toward establishing the false positive and false negative error rates of the case-specific claim of reliability under ideal conditions. It would also include other research establishing the impact of context bias or other conditions present in the case under consideration which might undermine reliable performance in the individual case. Unfortunately, most specific tasks in many areas have not been the subject of formal research, and most lawyers are not good at formulating the actual task being undertaken by the expert, much less finding and marshaling the evidence for reliability, pro and con, to the extent there is any.

Finally, I see no way of outsourcing these fact-sensitive issues of reliability from judges and lawyers to some other standing body of “experts on expertise” in individual cases, even if I trusted the system to generate a properly neutral membership for such body. So unless through proper selection and training we get much more conscientious and better informed judges (on average), and much more sophisticated defense lawyers, we are stuck. The latter variable concerning defense lawyers might be the most important. In my opinion, federal judges have been much better at determining the reliability of expert testimony in civil cases, where both sides tend to have well-financed legal representation.

Question two asks about juries and expert testimony. Read more about it from The Washington Post.