Admissibility of scientific evidence in courts

Medicine and Law

Volumn 24, Issue 2, 2005, Pages 243-257

  Davies, J ^a  

^a NONE

Author keywords

Daubert case; DNA tests; Israeli Law; Scientific evidence

Indexed keywords

ARTICLE; COURT; CRIMINAL LAW; DNA DETERMINATION; EVIDENCE BASED MEDICINE; EXPERT WITNESS; FORENSIC MEDICINE; HUMAN; ISRAEL; LAW SUIT; LAWYER; LEGAL LIABILITY; MEDICAL EXPERT; MEDICOLEGAL ASPECT; NEGLIGENCE; PROBABILITY; RELIABILITY; SCIENTIFIC LITERATURE; THEORY;

EID: 22544459952     PISSN: 07231393     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (14)

1. In Criminal Appeal (CRA) 8755/99, State of Israel v. Saiyef Abu Kishak, Supreme Court Precedents 2000(1) 649, the DNA evidence was the sole evidence. In this case, a jewelry store was robbed, and the glass display cabinets were smashed. Blood had dripped onto the glass fragments scattered around the store. The blood was found to match the genetic profile of Abu-Kishak, and of another person in the population who had the same genetic profile. The District Court stated that DNA theory is presently well established and accepted by the scientific community, and that it had been accepted by the court on a number of occasions, and the same is the case with respect to the test method. However, in this specific instance, the District Court found that the results of the DNA test in the case of the accused were not sufficiently certain. The court stipulated this based on the doubts in the test results which did not include the Bedouin population of which the accused was a member. Therefore, due to the doubt expressed by the expert, the District Court acquitted the accused. See, recently, CRA 9742/02, Morad Abu-Hamaad v. State of Israel.
2. In English law, a medical opinion depends upon obtaining the court's permission: The Civil Procedure Rules, 1998-32.4 Court's power to restrict expert evidence (1) No party may call an expert witness or put in evidence an expert's report without the court's permission. (2) The court may give permission on or without an application. (3) The court may direct .... American law requires that a scientific theory be proven by means of an expert opinion on the matter at hand: "If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
3. The law in this matter in Britain was expressed by Lord Justice Stuart-Smith in Loveday v. Renton and Another Q.B. D 31 March 1988, No. 1982 L 1812. The mere expression of opinion or belief by a witness, however eminent, that the vaccine can or cannot cause brain damage, does not suffice. The Court has to evaluate the witness and the soundness of his opinion. Most importantly this involves an examination of the reasons given for his opinions and the extent to which they are supported by the evidence. The Judge also has to decide what weight to attach to a witness's opinion by examining the internal consistency and logic of his evidence; the care with which he has considered the subject and presented his evidence; his precision and accuracy of thought as demonstrated by his answers; how he responds to searching and informed cross-examination and in particular the extent to which a witness faces up to and accepts the logic of a proposition put in cross-examination or is prepared to concede points that are seen to be correct; the extent to which a witness has conceived an opinion and is reluctant to re-examine it in the light of later evidence, or demonstrates a flexibility of mind which may involve changing or modifying opinions previously held; whether or not a witness is biased or lacks independence" Renton and Another Q.B. D 31 March 1988, No. 1982 L 1812. The mere expression of opinion or belief by a witness, however eminent, that the vaccine can or cannot cause brain damage, does not suffice. The Court has to evaluate the witness and the soundness of his opinion. Most importantly this involves an examination of the reasons given for his opinions and the extent to which they are supported by the evidence. The Judge also has to decide what weight to attach to a witness's opinion by examining the internal consistency and logic of his evidence; the care with which he has considered the subject and presented his evidence; his precision and accuracy of thought as demonstrated by his answers; how he responds to searching and informed cross-examination and in particular the extent to which a witness faces up to and accepts the logic of a proposition put in cross-examination or is prepared to concede points that are seen to be correct; the extent to which a witness has conceived an opinion and is reluctant to re-examine it in the light of later evidence, or demonstrates a flexibility of mind which may involve changing or modifying opinions previously held; whether or not a witness is biased or lacks independence".
4. Daubert v. Merrell Dow Pharmaceuticals Inc. 509 U.S. (1993).
5. Frye v. United States 293 F. 1013 (1923).
6. Daubert v. Merrell Dow Pharm. Inc., 951 F 2d 1128 (9th Cir. 1991)
7. The definition of the terms, as set forth by Justice Blackmun, who wrote the judgment: "The adjective 'scientific' implies a grounding in the methods and procedures of science. Similarly, the word 'knowledge'... applies to any body of facts or to anybody of ideas inferred from such facts or accepted as truths on good grounds...in order to qualify as 'scientific knowledge', an inference or assertion must be derived by the scientific method...' Daubert v. Merrell Dow Pharmaceuticals. Inc. 509 U.S. at 590 (1993).
8. General Electric Co. v. Joiner, 522 U.S. 136 (1977).
9. Kumho Tire Co. v. Charmichael, 526 U.S. 137 (1999).
10. Rule 702 (Evidence by Expert) of the Federal Rules of Evidence.
11. CRA 9724/02, Murad Abu Hamaad v. State of Israel (verdict handed down on April 12, 2004).
12. Civil Appeal 1639/01, Kibutz Ma'ayan Zvi and others v. Krishnov (unpublished), judgment dated June 2, 2004.
13. Supra, note 12
14. Although Daubert dealt with a novel method of research, however the court was aware of the possibility that questions might arise concerning the general scientific or professional material presented to the court and, looking to that future, it said: "Although the Frye decision itself focused exclusively on 'novel' scientific techniques, we do not read the requirements of Rule 702 to apply specially or exclusively to unconventional evidence. Of course, well-established propositions are less likely to be challenged than those that are novel, and they are more handily defended. Indeed, theories that are so firmly established as to have attained the status of scientific law, such as the laws of thermodynamics, properly are subject to judicial notice under Federal Rule of Evidence 201." Daubert v. Merrell Dow Pharmaceuticals. Inc. 509 U.S. at 593.