The Standard for Admitting Scientific Evidence: A Critique From the Perspective of Juror Psychology

• Author: by Professor Edaard J Imwinkelried
• Pages: 04

This article xas arzginallyprrparedand delivered by the author on 18.March 1986 at The Judge Adroeate Geizeralb School as the Twelfth Annual Kennefh J, Hodsox Lecture. The Hodson Lecture 7s delivered annuallg by drstingaished guest speakers In honor ofthe Kenneth J. Hodson Chair of Criminal Laic. The first of the honorary academic chairs established at The Judge Adtocate General'sSehool, the Hodson Chair ulas established at The Judge Adroeate General's School. the Hodson Chair zag established on 1 July 1971 to honor Major General Kenneth J. Hodson. The Judge Advocate General from 1967 to 1971 and Chief Judge of the Couri of Military Rwzr?cfrirom 1971 to 1974. The first Hodson Leetwr u'as presented by General Hodson on 12 April 197P. His lecture. entitled "Manuelfor Courts-.Martial--l984,"u,as later published in the Military Lau Recieu,.***

'The opinmn~and Conciutioniexprersed inthis amcleare thoseaf the author andda

not neceis~rlly represent the wews af The Judge Adweate Generarn Sehaal. the DeDartment airhe A m i . or an) orhernovernmental seem Anotherversianaf this

Cniversiti of San Diega program in Guadalajara M e x m summer 1981. B.A, versltyaf San Franeiaeo Caliiornla. 1967. J.D , UniveriifyafSan FranelicaSehLa-. California 1969 Profeasar Imwnkelried 18 the author of many articles and

By a wide margin, the Wayne Williams caw IS the most highly publicized prosecution in recent memory.' A number of factors account for that notoriety. Certainiy, one reason was the Incrediblk-long string of homicides that led to the case. Another factor was the unprecedented atmosphere of fear that had gripped an entire city. But there was another reason why the lV?llian,s ease was so highly publicized. That reason was best summarized by Bennett Beach, the Legal Editor of Ti me magazine. hlr. Beach stated that thecase "highlight[ed] a major development ~n the courtroom.help of , , , [scientific] advances. more and more silent [ evidence IS being turned into loudly damning testimony."*

The Williani case is certainl? by no means an isolated phenomenon. In 1980 the Kational Center far State Courts released the results of a nationuide survey of practicing attorneys and judge^.^ The finding wilas that almost half the judges and attorneys surveyed encountered scientific evidence In a third of the cases thatthey took to tr1ai.l The most recent issue of the American Bar Association Journal is furtherevideneeof this trend. Theissue contains an article by one of the leading American forensic scientists, Dr. John Thorn-tan of the University of California. Berkeley. In that article. Dr. Tharnton asserts "[Florensic science 1s already used extensiiely in contemporary legal processes. and shows every indication of being used to aneiengreaterextentinthenearfuture."iThetrend,then.isclear and unmistakable.

The trend IS of special significance for the military community. For example, the advent of the urinalysis program will certainl? make scientific evidence a lively topic again ~n the military. Futherrt Gordon. is~~idelyregardedasoneofthe beat

n the United States Lastly. \wth the exception

of the Xorthwestern and University of Richmond Law Schools, the J.A.G. School i s probably the American Law school that has placed the greatest curricular emphasis on scientific evidence. Far all these reasons, the trend toward the greater use of scientific evidence is of special interest to the people in this room.

The temptation for both civil and military practitioners is to rush to support that trend and to welcome increased relianceonscientific evidence. But before n e do that, we should pause to consider some disturbingfacts. In 1980, the Food and Drug Adminstrationcharged that ofthe 12,OOOelinicalresearchersin theUnitedStates."probably ten percent do something less than [honest research]."6 In 1981, outright fraud was discovered in one of the mast prestigious cancer research programs in the United States at Cornell University.' Early this year. a medical journal charged that fifteen percentafthe medical laboratory test findingsare erroneaus.'All these fact sought to give us a sober second thought before we join the cult of &?nee and applaud the trend toward the greater use of scientific evidence. We ought to stop today and assess that trend; we should ask ourselves whether we want to support or revem that trend.

This is certainly an opportune time for the military to undertake that reassessment. You have the new Military Rules of Evidence. 1 commend to you the Drafters' Analysis of Rule 702. In the analysis of Rule 702, you find a rather tantalizing remark that thenew Military Rules of Evidence may-not will-but may change the standard for admitting scientific evidence in military courts-martial. The Drafters were, in effect. inviting the military courts at this juncture to look at this trend and ask whether it is a trend the military should join in. To answer that question, I would like to consider three topics today: the causes of the trend, secondly, the criticisms of the trend, and, thirdly, an objective, dispassionate analysis of the meritsofthat trend.

The Causes of the Trend

Let us begin by talking about the causes. One cause is clear: the pace of technological change. In the wards of the Utah Supreme Court, "[This is] an age when one scientific advancement tumbles in rapid succession upon another."e This scientific productivity 1s understandable. It has been estimated that 90 percent of the scient- SBraad & Wade Betrayers oltha Truth. TWA Ambassador Dee 1981 at42.Id. at 48.45'Beehtel. .?4id,caf Tesis. Don! Bel Your Life on T h m Prevention. Jan 1983 af 55 The author emrnsred that the 15 percent error rate scmunt8 for appmrim~tely four million errmoou~ rest results dah Id.

BPhillips c Jaeksan 615 P.2d 1228, 1234 (Utah 1980)

ists who have ever bred, who have ever walked on the face of the earth. are alive right now.1' Fire thousand of those scientists and scientific technicians are full-time employees of American crime laboratories. That technological reality is the most obvious reason for the increased use of scientific evidence But there are two other reasons that are very important, one IS eridentiary.

In 1961, when Dean MIcCormick wrote the first edition of the renowned McCormiek an Evidence. he rncluded thisstatement."The manifest destiny of evidence law IS a progressive laaering of the barriers to truth."'- I do not think that there is any inexorable Helgelian dialectic at work in American evidence law that is mevitably pushing us towards a lawering of those barriers. But at ieast in

the area of scientific evidence, the Dean's prediction seems to be coming to pass.'Z

Until very recently, the barrier to the admission of scientific eridence was the F r ~ e test.i3 Fiyr t' Criited States is B 1923 dectwx of the District of Columbia Court of Appeais.I4 It was the first Ameri-can appellate decision to reject one of the precursors of the poly-graph. the systol~c blood pressure test. In that case the announced reason for exciusing the evidence wsa that the technique had not gained general acceptance x ithin the reiewntscientific circle.'jItis important to understand the nature of that ruling The court is not saying that the iack of general acceptance cuts to the weight of the evidence. Rather, the court is saying that it IS not enough for the

road d- Wade mpra nore 6 BL 42

id lernphasii added) 102

expert to declare on the record that in his or her opinion, this is a valid technique and a reliable instrument; another condition precedent to the admissibility of the evidence is the expert's voucher that its validity and reliability and generally accepted within his or her specialty. Absent that voucher on the record, as a matter of law. the scientific evidence must be excluded.

Until very recently, this was not only the majority view in the United States, this was thealmostuniversalview,'61" the mid-l970s, it was well settled in at least 45 states that Frue was the controlling law and that, absent a voucher of general acceptance," scientific evidence was automatically inadmissible.

That was not only a well settled barrier, it was also a formidable one. Take, for example, only one year's case law. 1977 In addition ta accounting for the exclusion of such controversial techniques as polygraphy and sound spectrography, some of the promising fore-nsic techniques excluded solely on the basis of Frye were...