The Disappointing History of Science in the Courtroom: Frye, Daubert, and the Ongoing Crisis of Junk Science in Criminal Trials
![handle is hein.journals/oklrv71 and id is 778 raw text is:
THE DISAPPOINTING HISTORY OF SCIENCE
IN THE COURTROOM: FRYE, DAUBERT, AND
THE ONGOING CRISIS OF JUNK SCIENCE
IN CRIMINAL TRIALS
JIM HILBERT*
Introduction
Twenty-five years ago, the Supreme Court decided one of the most
important cases concerning the use of science in courtrooms.' In Daubert
v. Merrell Dow Pharmaceuticals,2 the Court addressed widespread
concerns that courts were admitting unreliable scientific evidence.3 In
addition, lower courts lacked clarity on the status of the previous landmark
* Jim Hilbert is an Associate Professor of Law at Mitchell Hamline School of Law
and Co-Director of the Expert Witness Training Academy, which trains climate scientists
through a grant from the National Science Foundation. He would like to thank Professor
Peter Knapp, Professor Kate Kruse, and Professor Ted Sampsell-Jones for their helpful
guidance, comments, and encouragement.
1. See David E. Bernstein, The Unfinished Daubert Revolution, ENGAGE: J. FEDERALIST
Soc'y PRAC. GROUPS, Feb. 2009, at 35, 35 (declaring Daubert as probably the most radical,
sudden, and consequential change in the modern history of the law of evidence); Barbara P.
Billauer, Admissibility of Scientific Evidence Under Daubert: The Fatal Flaws of
'Falsifiability' and 'Falsification,' 22 B.U. J. Sci. & TECH. L. 21, 23 (2016) [hereinafter
Billauer, Admissibility] (claiming the Daubert decision would profoundly change the face
of scientific evidence in American courts); David L. Faigman, The Daubert Revolution and
the Birth of Modernity: Managing Scientific Evidence in the Age of Science, 46 U.C. DAVIS
L. REV. 893, 895 (2013) (describing the changes ushered in by Daubert as revolutionary);
Erin Murphy, Neuroscience and the Civil/Criminal Daubert Divide, 85 FORDHAM L. REV.
619, 621 (2016) (When announced by the U.S. Supreme Court in 1993, Daubert was
heralded as a watershed moment in the treatment of scientific evidence.).
2. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).
3. According to a popular, yet polemical, book at the time, the courts were overrun
with pseudo-science and fake expertise in the late 1980s. See PETER W. HUBER, GALILEO'S
REVENGE: JUNK SCIENCE IN THE COURTROOM 2 (1991) (Maverick scientists shunned by their
reputable colleagues have been embraced by lawyers. Eccentric theories that no respectable
government agency would ever fund are rewarded munificently by the courts. .. . Courts
resound with elaborate, systematized, jargon-filled, serious-sounding deceptions that fully
deserve the contemptuous label used by trial lawyers themselves: junk science.). For a
more thorough discussion, and critique, of Huber's book, see infra notes 108-114 and
accompanying text.
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