I have mentioned this article before, Michael D. Risinger, Navigating Expert Reliability: Are Criminal Standards of Certainty Being Left in the Dock?, 64 ALBANY L. REV. 99 (2000). The basic theme:
This article shows that, as to proffers of asserted expert testimony, civil defendants win their Daubert reliability challenges to plaintiffs’ proffers most of the time, and that criminal defendants virtually always lose their reliability challenges to government proffers. And, when civil defendants’ proffers are challenged by plaintiffs, those defendants usually win, but when criminal defendants’ proffers are challenged by the prosecution, the criminal defendants usually lose. The article then goes on to examine, in detail, various categories of expert proffers in criminal cases, including "syndrome evidence," polygraph, bite mark, handwriting, modus operandi, and eyewitness weakness, to shed light on whether the system bias revealed in the statistical breakdown is illusory or real. Finally, an afterword analyzes the last year’s cases, and makes observations on apparent trends.
I revisited the above because of reading today’s post on on the Concurring Opinions blog, about “Convicting the Innocent.” There is a comment to the post by Prof. Garrett asking, “if there is a double standard in forensics concerning exculpatory versus inculpatory evidence?”
Well, I came across this, Wes R. Porter, Repeating, Yet Evading Review: Admitting Reliable Expert Testimony in Criminal Cases Still Depends on Who is Asking, 36 RUTGERS L. REC. 48 (2009) (emphasis added).
One of the unfortunate truths in criminal litigation is that trial courts frequently admit testimony from the government’s experts and exclude the defendant’s proposed expert testimony.
Prof. Garrett has written
In my book, I examined what went wrong in the first 250 DNA exonerations in the U.S. Jones was exonerated by a post-conviction DNA test. Now we know that his confession, like 40 other DNA exoneree confessions, was not just false, but likely contaminated during a botched interrogation. Now we know that 190 people had eyewitnesses misidentify them, typically due to unsound lineup procedures. Now we know that flawed forensics, in about half of the cases, contributed to a wrongful conviction. Now we know that informants, in over 50 of the cases, lied at trial.
Convicting the Innocent: Where Criminal Prosecutions Go Wrong (2012).
Prof. Garrett has written about wrongful convictions. But the ongoing point and usefulness for us practitioners going forward are the resources he offers both in his book and on the web. Here is a link to the “Data and Materials” on line at the UVA website.