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29 Harv. J.L. & Pub. Pol'y 1085 (2005-2006)
Flexible Standards, Deferential Review: Daubert's Legacy of Confusion

handle is hein.journals/hjlpp29 and id is 1093 raw text is: FLEXIBLE STANDARDS, DEFERENTIAL REVIEW: DAUBERT'S LEGACY OF CONFUSION I. INTRODUCTION Expert evidence -particularly expert scientific evidence- has long been thought to require special treatment in the court- room.' Concern about junk science and fear that jurors will be easily impressed by such evidence are two oft-cited reasons for giving special attention to expert testimony.2 Addressing these concerns, the Supreme Court set the standard for the ad- missibility of expert testimony in the 1993 case of Daubert v. Merrell Dow Pharmaceuticals.3 The holding of Daubert and two other cases, referred to as the Daubert trilogy,4 were later codified in Rule 702 of the Federal Rules of Evidence:5 If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to de- termine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may tes- tify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the tes- timony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.6 1. See, e.g., James E. Starrs, The New Courtroom: There's Something About Novel Scientific Evidence, 28 Sw. U. L. REV. 417, 418-19 (1999). 2. See id. 3. 509 U.S. 579 (1993). 4. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), together with General Electric Co. v. Joiner, 522 U.S. 136 (1997), and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), are considered the Daubert trilogy. See Robert J. Goodwin, Fifty Years of Frye in Alabama: The Continuing Debate over Adopting the Test Established in Daubert v. Merrell Dow Pharmaceuticals, Inc., 35 CuMB. L. REV. 231, 268 (2004- 2005). 5. Susan H. Bitensky, Cat in the Hat Moves to Michigan; Expert Witnesses and Their Proponents Curse Dr. Seuss, 2002 MICH. ST. L. REV. 835, 842. 6. FED. R. EvID. 702. Rule 702 was amended in 2000. Bitensky, supra note 5, at 842. At the time of the Daubert decision, Rule 702 read, If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge,

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