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Forensic Identification Science Evidence Since Daubert: Part II—Judicial Reasoning in Decisions to Exclude Forensic Identification Evidence on Grounds of Reliability


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Mark Page, B.D.Sc., Grad.Dip.Clin.Dent., G.C.Ed.
Oral Health
University of Newcastle
PO Box 127
Ourimbah, NSW 2258


Abstract:  Many studies regarding the legal status of forensic science have relied on the U.S. Supreme Court’s mandate in Daubert v. Merrell Dow Pharmaceuticals Inc., and its progeny in order to make subsequent recommendations or rebuttals. This paper focuses on a more pragmatic approach to analyzing forensic science’s immediate deficiencies by considering a qualitative analysis of actual judicial reasoning where forensic identification evidence has been excluded on reliability grounds since the Daubert precedent. Reliance on general acceptance is becoming insufficient as proof of the admissibility of forensic evidence. The citation of unfounded statistics, error rates and certainties, a failure to document the analytical process or follow standardized procedures, and the existence of observe bias represent some of the concerns that have lead to the exclusion or limitation of forensic identification evidence. Analysis of these reasons may serve to refocus forensic practitioners’ testimony, resources, and research toward rectifying shortfalls in these areas.