THE CASE AGAINST DAUBERT - THE NEW SCIENTIFIC EVIDENCE STANDARD AND THE STANDARDS OF THE SEVERAL STATES

In June of 1993, the U.S. Supreme Court, in Daubert v. Merrell Dow Pha rmaceuticals, Inc., rejected the Frye ''general acceptance'' rule unde r which evidence proffered as scientific had long been evaluated for a dmissibility by Federal Courts and most state courts. In the body of t he following paper, we argue that Daubert was a disastrous decision an d one reflecting a general lack of understanding of the scientific/tec hnical enterprise. We argue that, far fi om achieving the goal of excl uding bogus expert testimony, Daubert invites it. We also argue that t he bad result that is Daubert arose from addressing a non-question: wh ether the Federal Rules of Evidence superseded Frye. In the section on The Scientific Evidence Standards in the States in the Wake of Dauber t to the paper we provide an annotated listing of the scientific evide nce standards governing the courts of the 50 states one year after Dau bert issued, by which time many state high courts had had an opportuni ty to enunciate their respective states' approach to scientific eviden ce with the guidance of Daubert. That summary indicates as of that tim e which state courts were governed by Frye and which ones by Daubert. It also shows that many state high courts show a confusion that is tra ceable to the phrasing of Daubert. More happily, this summary also sho ws that a number of state high courts have a very good grasp of scient ific evidence and have enunciated readily-applied rules by which their trial courts are to evaluate ii. It is to be fervently desired that t hese state decisions or the thought processes producing them lead to w idespread judicial rules for evaluating would-be scientific evidence, rules which will readily exclude ''junk science'' from the courtroom w hile not raising unreasonable barriers to valid expert testimony.