Kumho, Daubert, and the Nature of Scientific Inquiry: Implications for Forensic Anthropology*

Abstract

In the last 15 years, the US Supreme Court has implemented major changes concerning the admittance of expert testimony. In 1993, Daubert v. Merrell Dow Pharmaceuticals superseded the Frye ruling in federal courts and established judges, not the scientific community, as the gatekeepers regarding the credibility of scientific evidence. In 1999, a lesser-known but equally important decision, Kumho Tire v. Carmichael, ruled that technical expert testimony needed to employ the same rigor as outlined in Daubert, but experts can develop theories based on observations and apply such theories to the case before the court. Anthropology has never been defined as a hard science. Yet, many recent publications have modified existing techniques to meet the Daubert criteria, while none have discussed the significance of Kumho to anthropological testimony. This paper examines the impact of Daubert and Kumho on forensic anthropology and illustrates areas of anthropological testimony best admitted under Kumho's guidance.

An assessment of the repeatability of pubic and ischial measurements

“…The Daubert guidelines place emphasis on the methods used for analysis (as well as the testability, repeatability and validity), rather than the experience of the person providing the testimony. This has led to a shift in defining the goals of forensic anthropological research, the collection of evidence and the overall analysis of skeletal remains [2,3]. In essence, the connection between the data and the methods used is extremely important, and the expertise, alone, of any specialist is no longer adequate to ensure acceptance in a court of law.…”

“…In order to fulfill these duties, they must evaluate the methodology of the research according to the Daubert standards, which were named after the well-known court case of Daubert vs. Merrel Dow Pharmaceuticals [1,2,3]. The Daubert guidelines place emphasis on the methods used for analysis (as well as the testability, repeatability and validity), rather than the experience of the person providing the testimony.…”

An analysis of cranial radiography in post-mortem recognition

“…Also, CT scans are often used before conventional autopsy [22,23] on decomposed bodies [24] or even sometimes on human remains allowing identification and trace back to the cause of death [25]. What is also accepted by the authors is that computed tomography post-mortem contributes reliably to human identification by its precision and objectivity [26]. This imaging technique makes it possible to collect a large amount of data from the multi-detector CT and reconstitution it in multi-plan for a numerical analysis.…”

mournful ape: Conflating expression and meaning in the mortuary behaviour of Homo naledi

“…20 In practice, Daubert is used by a trial judge to make an assessment of whether an expert's scientific evidence or testimony is based on scientifically valid reasoning or methodology and can properly be applied to the facts of the case. [21][22][23] Under Daubert, the factors considered in determining whether the science is valid are whether the hypothesis or technique in question (1) can be, and has been, tested; (2) has been subjected to peer review and publication; (3) has known or verifiable error rates; (4) has standards (professional or otherwise) controlling its operation; and (5) has attracted widespread acceptance within a relevant scientific community. 24 So, does the science behind both the taxonomic and the context papers meet these definitions of admissibility?…”