Daubert-type questions may be raised by the parties pretrial,30 or during the course of trial,31 or sua sponte by the trial judge.32 Sometimes a trial judge will conduct a formal “Daubert hearing” before ruling on a party’s objection to expert testimony; sometimes, however, the judge will simply entertain a party’s objection, hear arguments, and then rule.33 Judges sometimes rule on the briefs alone, without the benefit of formal arguments. There are any number of questions that might arise concerning the testimony of a forensic science expert or about the forensic evidence itself. These questions might include, inter alia, issues relating to one of the five Daubert factors or other factors appropriate to the forensic evidence, the relevance of the evidence, the qualifications of the expert, the adequacy of the evidentiary sample about which the expert will be testifying, and the procedures followed in the handling and processing of the evidence. After considering the matter at issue, a trial judge may exclude the evidence in whole or in part, prevent or limit the testimony of the expert witness, or deny the challenge. The Supreme Court has made it clear that trial judges have great discretion in deciding on the admissibility of evidence under Rule 702, and that appeals from Daubert rulings are subject to a very narrow abuse-of-discretion standard of review.34 Most importantly, in Kumho Tire Co., Ltd. v. Carmichael, the Court made it clear that “whether Daubert’s specific factors are, or are not, reasonable measures of reliability in a particular case is a matter that the law grants the trial judge broad latitude to determine.”35

THE 2000 AMENDMENT OF RULE 702

In 2000, Rule 702 was amended “in response to Daubert.”36 The revised rule provides:

30

See, e.g., Alfred v. Caterpillar, Inc., 262 F.3d 1083, 1087 (10th Cir. 2001). (“[B]ecause Daubert generally contemplates a ‘gatekeeping’ function, not a ‘gotcha’ junction, [the case law] permits a district court to reject as untimely Daubert motions raised late in the trial process.”)

31

See, e.g., United States v. Alatorre, 222 F.3d 1098, 1100 (9th Cir. 2000) (holding trial courts are not compelled to conduct pretrial hearings in order to discharge the gatekeeping function under Daubert as to expert testimony).

32

See, e.g., Hoult v. Hoult, 57 F.3d 1, 4 (1st Cir. 1995) (“We think Daubert does instruct district courts to conduct a preliminary assessment of the reliability of expert testimony, even in the absence of an objection.”).

33

1 Faigman et al., op. cit., supra note 1, § 1.8, p. 23 (stating “[i]n general, most courts considering the matter hold that a separate hearing to determine the validity of the basis for scientific evidence is not required” and discussing cases).

34

See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 142-43 (1997).

35

Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 153 (1999).

36

FED. R. EVID. 702 advisory committee’s note (2000 Amendments).



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