FORENSIC EVIDENCE: SCIENCE AND THE CRIMINAL LAW ppt

Terrence F. Kiely
FORENSIC
EVIDENCE:
SCIENCE AND THE
CRIMINAL LAW
Boca Raton London New York Washington, D.C.
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©2001 CRC Press LLC
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Kiely, Terrence F.
Forensic evidence : science and the criminal law / Terrence F. Kiely

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©2001 CRC Press LLC
If any Man be delighted in History, let him read the Books of Law, which are nothing
else but Annals and Chronicles of Things done and acted upon from year to year, in
which each Case presents you with a petit history; and if Variety of Matter doth most
delight the reader, doubtless, the reading of those Cases, (which differ like Men’s
Faces), tho like the Stars in Number, is the most pleasant reading in the World.
—Giles Duncombe
Trials per Pais, or the Law of England Concerning Juries by Nisi Prius (1725)
. . .
For without Victory at the Trial, to what Purpose is the Science of the Law? The
Judge can give no Sentence, no decision without it, and must give Judgement for
that Side the Trial goes; therefore I may well say, tis the chief Part of the Practice
of the Law. And if so, to whom shall I offer this Treatise, but to you the Practisers?
—Giles Duncombe
Trials per Pais, or the Law of England Concerning Juries by Nisi Prius (1725)
©2001 CRC Press LLC
Preface
Forensic Evidence: Science and the Criminal Law is intended to serve as an intro-
duction and guide to the appreciation and understanding of the significant historical,
contemporary, and future relationship between the world of the forensic sciences
and the criminal justice system. This book is not intended to be a close study of
forensic science, nor was it ever conceived as becoming one. It is devoted to a study
of the judicial response to uses of forensic science in the investigation, prosecution,
and defense of a crime. The audience to which this study is directed are those

intimately or potentially involved in that relationship: police, forensic scientists,
prosecutors, defense lawyers, and professors and students of the criminal law. It is
meant to stand on its own but also to complement the growing number of excellent
treatises and studies in the forensic sciences proper, many of which are published
in the CRC Press series in the area of forensic sciences.
The book focuses on those cases questioning the legal acceptability under a
Frye or Daubert standard of the methodological basis of the forensic science at
issue. However, equally, if not more importantly, the focus is on the discussions of
the numerous cases where the courts, assuming the acceptability of the underlying
methodology, have scrutinized and accepted or rejected a wide variety of investiga-
tive uses of the science under discussion, offered as proof of one or more material
facts in a criminal prosecution. This latter area of study is of equal, if not more
central, importance in understanding the place of forensic science in the criminal
justice system of the 21st century. It is time for another close look at both the body
of claims and the actual expert opinions supplied to the criminal justice system as
we enter the new century. The totally justified attention given rapid DNA develop-
ments should not overshadow the ongoing judicial acceptance and use of the more
traditional body of forensic sciences, such as hair, fiber, ballistics, and fingerprints,
some of which have never been fully challenged. The contributions of forensic
science to the criminal justice system have been, and remain, significant.
This book is divided into 12 chapters, most of which, with the exceptions of
Chapters 1, Science, Forensic Science, and Evidence, Chapter 2, Science and the
Criminal Law, and Chapter 12, Epilogue, address the legal profile of a specific
forensic science.
Chapter 1, Science, Forensic Science, and Evidence, briefly analyzes the histor-
ical and contemporary context in which legal arguments directed to the adequacy
of the findings of forensic science are conducted. This is a necessary precursor to
the more criminally focused discussion that constitutes the bulk of this book. The
framework of the Frye and Daubert standards for the introduction of scientific
opinion are discussed here, as well as the significant differences that exist when the

legal challenge comes in a civil law forum as opposed to a criminal one.
©2001 CRC Press LLC
Chapter 2, Science and the Criminal Law, provides an overview of the entire
subject of the uses of forensic sciences in the investigation, prosecution, and defense
of criminal cases in U.S. courts. Central topics addressed are the historical and
contemporary relationship between forensic science and proof of crime, the funda-
mentals of the application of forensic science disciplines to the investigation and
prosecution of a criminal case, the function of probabilistic analysis to that process,
and an extended discussion of the legal aspects of the modern crime scene.
Each of the next nine chapters discusses a specific forensic science discipline:
Chapter 3, Hair Analysis, discusses the court’s response to both class and individual
expert opinions in respect to attempts to connect one or more hairs found at a crime
scene to an individual suspect. This controversial subject sets the analytical frame-
work for the discussions that follow on a wide range of forensic science applications.
Chapter 4, Fiber Analysis, discusses the identification and use of a wide variety of
fiber materials from crime scenes and the processes used to link such materials to
a suspect. Chapter 5, Ballistics and Tool Marks, addresses the subjects of firearms
and projectile identification, the matching of bullets to a weapon, gunshot residue,
tool mark identification, and attempts to match crime scene striations to a tool
associated with a suspect. Chapter 6, Soil, Glass, and Paint, discusses the nature of
soil and glass-shard particle identification and the attempt to connect such materials
with an individual suspect. Chapter 7, Footprints and Tire Impressions, addresses
the identification, photographing, and/or casting of footwear and tire impressions
found at a crime scene, and their association with a suspect. The chapter ends with
a listing of bite mark cases. Chapter 8, Fingerprints, discusses the subject of finger-
print identification procedures and the recent Automated Fingerprint Identification
System (AFIS). Chapter 9, Blood Spatter Analysis, analyzes cases involving the
subject of presumptive testing for blood products as well as the subject of bloodstain
pattern analysis and its importance in many key aspects of crime scene reconstruction
efforts. Chapter 10, DNA Analysis, analyzes the court’s scientific conditions for the

acceptance of identification testimony arising from RFLP, PCR, mitochondrial DNA,
and STR DNA analyses, in addition to the small but growing number of cases and
articles addressing nonhuman DNA testing, in particular, dog, cat, and plant DNA
testimony. Chapter 11, Forensic Anthropology and Entomology, briefly examines
those decisions that utilize the methodologies and findings of these fields as aides
to the investigation and identification of human remains and providing time-of-death
estimates. And, finally, Chapter 12, Epilogue, provides a brief summary note on the
subjects not covered in this book and the major points sought to be made in the
entire work. The book ends with an appendix containing an extensive primer on
how to conduct forensic science and forensic evidence research.
©2001 CRC Press LLC
Acknowledgment
I wish to thank Dean Terri Foster of the DePaul University College of Law, for her
gracious and ongoing support during the research and writing of this book. I also
owe a great debt to friend and colleague James J. Ayres, Adjunct Professor of
Computer Law and my cocreator and codirector of the Center for Law and Science
at DePaul University College of Law. I also wish to express my gratitude to DePaul
students Richard Battle, David Becker, and most recently, Maria Vathes and Laura
Pieper, for their research skills, friendship, and untold hours at the final stages of
this book. Many thanks to Harvey Kane and Becky McEldowney of CRC Press.
Harvey had the faith in the project and Becky has gotten me through it with consistent
friendliness, patience, and good humor. Special thanks must go to my editor, Michele
Berman, for her great help in smoothing out the rough edges of this book.
My greatest debt is to my students in Forensic Evidence over these past 5 years,
for their interest and patience as I developed the content and structure of this book.
It goes without saying that my true reason for accomplishing anything is, as
always, my wife Sidni. Thanks again for everything, not the least of which was
keeping our Newfoundland Beau and our pitbull Buster from trashing my office and
consuming the final draft of this work.
©2001 CRC Press LLC

Dedication
This book is dedicated to the loving memory of my mother
Elizabeth Wolfe and my step-father John Wolfe
©2001 CRC Press LLC
Table of Contents
Chapter 1Science, Forensic Science, and Evidence
I.Science and the Legal Process
II.Litigation as History
III.Law and Science
IV.Science and the Supreme Court
A.Supreme Court Cases
1.Frye v. United States
2.Daubert v. Merrell Dow Pharmaceuticals
3.General Electric v. Joiner
4.Kumho Tire v. Carmichael
B.Science AdvisoryBoards
V.Conclusion
Research Note
Endnotes
Chapter 2Science and the Criminal Law
I.Introduction
II.Science and the Criminal Law: Overview
III.Forensic Science and Legal History
IV.Forensic Science and Circumstantial Evidence
A.18th and 19th Century CaseAnalyses
V.Forensic Science and Forensic Evidence
VI.Forensic Science, Probability, and the Law
VII.Forensic Science, Forensic Evidence, and the Modern Crime Scene
VIII.Forensic Science and the Criminal Law:A Case Study
A.TheFacts

B.The Prosecution’s Forensic Evidence: Hairs and Fibers
andTireTracks
C.The Court’sAnalysis: Hairs and Fibers andTireTracks
IX.Conclusion
Research Note
Endnotes
Chapter 3Hair Analysis
I.Introduction
II.Recent Case Discussions
III.Conclusion
Endnotes
©2001 CRC Press LLC
Chapter 4Fiber Analysis
1.Introduction
II.The Wayne Williams Case
III.Other FiberAnalysis Cases
Research Note
Endnotes
Chapter 5Ballistics and Tool Marks
I.Introduction
II.Weapon Identification
III.Angle of Shot
IV.Bullet Matching
V.Incompetency of Counsel
VI.WoundAnalysis and Ballistics
VII.Tool Mark Cases
Research Note
Endnotes
Chapter 6Soil, Glass, and Paint
I.Introduction

II.Glass Analysis
A.General
B.Glass AnalysisCases
III.Paint Analysis
A.General
B.Paint AnalysisCases
IV.Soil Analysis
A.General
B.Soil AnalysisCases
Research Note
Endnotes
Chapter 7Footprints and Tire Impressions
I.Introduction
II.Footprints
A.General
B.Footwear Cases
III.Tire Impressions
A.General
B.Tire Impression Cases
IV.Bite Mark Case Listing
Research Note
Endnotes
©2001 CRC Press LLC
Chapter 8Fingerprints
I.Introduction
II.Fingerprint Cases
III.Lip and Ear Print Impressions
Research Note
Endnotes
Chapter 9Blood Spatter Analysis

I.Introduction
II.Blood Spatter Cases
Endnotes
Chapter 10DNA Analysis
I.Introduction
II.Questions Lawyers Need toAsk andAnswer
III.DNA Cases
A.Postconviction DNATesting
B.SamplesVoluntarily Given Used in Other Cases
C.RFLP and the Product Rule
D.PCR and STR
E.STR DNA
F.mtDNA
G.Nonhuman DNA
Research Note
Endnotes
Chapter 11Forensic Anthropology and Entomology
I.Anthropology
II.Forensic AnthropologyCases
III.Entomology: Cases
Endnotes
Chapter 12Epilogue
AppendixA Primer on Researching Forensic Science
to Get to Forensic Evidence
I.Forensics and Crime Scene Bibliography and Research Sources
A.Overview and History
B.StandardForensic ScienceTexts
C.Recommended Periodicals
II.Forensic Information on the Internet
A.Dialog/Westlaw Searching

©2001 CRC Press LLC
B.Forensic Science and RelatedWeb Sites
1.Forensic Sciences
2.Law-Related Sites
3.Medicine-Related Sites
4.Science Sites
Table of Cases
©2001 CRC Press LLC
1
Science, Forensic
Science, and Evidence
A discarded theory remains a theory. There are good theories and bad theories-
theories currently regarded as true by everyone and theories that no one any longer
believes to be true. However, when we reject a matter of fact, we take away its
entitlement to the description: it never was a matter of fact at all.
— Steven Shaplin and Simon Schaffer
Leviathan and the Air Pump (1985)
I. SCIENCE AND THE LEGAL PROCESS
The desire to develop a model for the validation of scientific discoveries and meth-
odology has been a constant struggle since the very early period of modern scientific
thinking, in 17th-century England. Sir Francis Bacon, Lord Chancellor and one of
the fathers of modern scientific thinking, composed a work called the New Atlantis,
wherein he created a mythical institution called Saloman’s House or the College of
the Six Days Work. There, inhabitants were devoted to a serious and widespread
search for the identification of scientific discoveries and to developing rigorous
standards for testing their credibility. A complex system of experts was described
by Bacon whose duties were focused on strict examination of practical results to
serve as the basis for more generally applicable scientific principles.
1
Robert Hooke, the early-17th-century inventor of the microscope and an asso-

ciate of the great experimentalist Sir Robert Boyle, along with Francis Bacon also
recognized the difficulty of finding adequate standards for the testing of scientific
validity, especially in cases of attempts to fashion one uniform set of constructs for
any such task:
[F]or the limits to which our thoughts are confined, are small in respect of the vast
extent of Nature itself; some parts of it are too large to be comprehended, and some too
little to be perceived, and from thence it must follow that not having a full sensation of
the object, we must be very lame and imperfect in our conceptions about it, and in all
the propositions which we build upon it; hence we often take the shadow of things for
the substance, small appearances for good similitudes, similitudes for definitions; and
even many of those, which we think to be the most solid definitions are rather expressions
of our misguided apprehension then of the true nature of the things themselves.
2
This concern was at the forefront of efforts by early proponents of observational
science and has remained the core issue in modern science-based civil and criminal
litigation. As noted by authors Steven Shaplin and Simon Schaffer in their excellent
study of the origins of modern scientific thinking, Leviathan and the Air Pump:
©2001 CRC Press LLC
Hobbes, Boyle, and the Experimental Life,
3
English experimentalists of the mid-17th
century and afterward rapidly took the position that all that could be expected of
physical knowledge was “probability,” thereby removing the radical distinction
between “knowledge” and “opinion.” Physical hypotheses were provisional and
revisable; assent to them was not obligatory, as it was to mathematical demonstra-
tions; and physical science was, to varying degrees, removed from the realm of the
demonstrative:
The probabilistic conception of physical knowledge was not regarded by its proponents
as a regrettable retreat from more ambitious goals; it was celebrated as a wise rejection
of a failed project. By the adoption of a probabilistic view of knowledge, one could

attain to an approximate certainty and aim to secure legitimate assent to knowledge-
claims. The quest for necessary and universal assent to physical propositions was seen
as inappropriate and illegitimate. It belonged to a “dogmatic” enterprise, and dogmatism
was seen not only as a failure but as dangerous to genuine knowledge.
4
Historically then, a central concern in such cases is how the courts fashion a set
of observational and linguistic guidelines to gauge the adequacy of a scientific
opinion that is offered to establish a material fact in a trial.
This old debate has come full circle in the search by modern courts for a one-
size-fits-all definition of legally sound scientific methodology that will serve justice
in the increasing and predictably complex product liability and criminal cases of the
next century.
The basic inference-based argument used in modern trials, whether aimed toward
a proffered scientific result or a more routine establishment of an important fact,
has served the law as the primary historical method since the earliest days of legal
systems. The method of persuasion used by the great Roman lawyer and scholar
Cicero remains the primary method of convincing a jury to reach one version of
history rather than another. An argument by Cicero in a murder-patricide case in the
year 80
B.C. could be made today, centered in differing opinions of what the facts
were and how they are to be interpreted:
Sextus Roscius, you say, killed his father. Well, what sort of a person is he then?
Obviously he must be some degenerate youth, who has been corrupted by men of evil
character. On the contrary: he is over forty years old. Well, then, he must be a veteran
cut-throat, a ferocious individual throughly accustomed to committing murders. But
the prosecutor has never even begun to suggest anything of the kind. So I suppose he
must have been driven to his criminal act by extravagant habits, or huge debts, or
ungovernable passions. As regards extravagant living, Erucius himself has already
cleared him of that when he indicated that Sextus hardly ever even attended a party.
Debts? He never had any. Passions? Not much scope for these in a man who, as the

prosecutor himself critically remarked, has always lived in the country, devoting his
time to the cultivation of his lands.
5
This will become important here as we discuss the current theory setting forth the
propriety of an expert witnesses opinion and its foundation and the utilization of a
wide variety of forensic sciences in the criminal justice system.
©2001 CRC Press LLC
As noted by the famous historian, Carl Becker:
Let us admit that there are two histories: the actual series of events that once occurred;
and the ideal series that we affirm and hold in memory. The first is absolute and
unchanged—it was what it was whatever we do or say about it; the second is relative,
always changing in response to the increase or refinement of knowledge. The two series
correspond more or less; it is our aim to make the correspondence as exact as possible;
but the actual series of events exists for us only in terms of the ideal series we affirm
and hold in memory. This is why I am forced to identify history with knowledge of
history. For all practical purposes history is, for us and for the time being, what we
know it to be.
6
Becker’s observation could equally apply to any factual search in litigation, not the
least of which are efforts to establish scientific facts that will be determinative of
the central issues in contemporary environmental, product liability, medical mal-
practice, and criminal prosecutions. The subject of inference-, probabilistics-, sta-
tistics-, and extrapolation-based testimony will be discussed in depth later in this
book. Suffice to say here, that in the extensive area of causation theory and forensic
science and forensic evidence, the history question continues to be a major compo-
nent in any analysis of proof of scientific fact.
The ultimate goal of the legal process is not to find absolute truth. Any system
that allows a jury to reach a verdict of guilty or not guilty in such important matters
would appear to have something else in mind. The goal of the U.S. litigation system
is to provide the best context, the fairest context, the optimal context, for a jury to

find the truth. This goal of providing the best opportunity for a jury to find its version
of the truth is especially important to understand before entering into extended
discussion of the current preoccupation of the nation’s courts with the science
question.
What is generally acceptable or reliable methodology in various fields that would
justify any opinion, such as the cancer-causing potential of a certain commercial
product? Who determines the answers to this question? What is the scientific
standard to utilize in this inquiry? At what point in the history of a product or a
disputed event and its alleged victim are we to focus? Are civil and criminal cases
sufficiently different in terms of their goals and processes to require different
analyses? Is every opinion that is grounded in some aspect of science subject to
pretrial scrutiny to test the adequacy of the methodology used and the opinion based
upon such use?
Litigation involving questions of science or the nature of the validity of modes
of scientific inquiry has been part and parcel of our legal life since the start of our
national life, beginning in and primarily residing in cases brought up in the nation’s
patent system. In examining the U.S. background to the current preoccupation of
legal scholars and courts in respect to the meaning and application of the term
science in civil and criminal cases, one is struck by the absence of argument on that
point over most of our national life. It is also important to note that the patent laws
were among the earliest laws promulgated by the new U.S. Congress. Thomas
Jefferson was not only a fervent amateur scientist, as was Benjamin Franklin and a
©2001 CRC Press LLC
host of the founding fathers, but he was also a vocal and strong supporter of patent
legislation. In fact, Jefferson served as the first official patent examiner.
7
“Science” and technology drove the economic development of the U.S. in rapid
and explosive ways, not the least of which was the filing of thousands of patent
applications and early litigation alleging infringement. Case law from the first 50
years of our national life is replete with discussions of the uniqueness of cotton and

wool cards, cutting and heading nails, pumping machinery, banknote plates, carpet
weaving machinery, stock-quoting machines, glass knobs, and a host of other prod-
ucts produced by the rapid commercial expansion of the 19th-century commercial
world. The first edition of the Scientific American, published in 1845, listed the
patents issued in that year, which included a large number of patentees for improve-
ments in the areas of beehives, churns, corn shellers, cultivators, fruit-gatherers,
harrows, hulling machines, mowers, plows, and a wide variety of advances in
agricultural implements. Favorable grants were also made for fabrics made with
India rubber (Goodyear), ship anchors, cooking stoves, pianofortes, truss pads,
furnaces, turtle-shell bugles, typecasters, door locks, and washing machines.
8
The term science is noted and discussed primarily in patent cases in the sense
of arts and sciences, a keystone idea in the first and subsequent patent legislation.
The term science was also used routinely as referring to some general expertise or
extraordinary knowledge of some matter or subject. Courts in the late-18th and entire
19th century often praise the “science” of legislation, international law, modern
contracts, navigation, morality, writing, military affairs, engineering, political econ-
omy, and the like. Questions addressed to the appropriate standards for determining
the admissibility of expert opinion based on a relevant scientific methodology were
simply not asked.
Before we can understand the tremendous impact of contemporary judicial
answers to the question of what is good science, we must discuss the defining
influence that both the legal method and the structure of modern litigation will
exercise in the effort to have a successful and efficacious resolution to this central
issue in our legal future. This, in turn, will necessitate an overview of the various
rules of civil and criminal procedure, trial evidence rules, and, most precisely, the
strictures surrounding the proffer of expert testimony.
II. LITIGATION AS HISTORY
Any trial, in any area of law, from the simplest to the most complex, is in essence
an exercise in establishing a version of history. If a case has proceeded to an actual

trial, then some material facts are in question and thus must be determined by the
trier of fact. Once the jury has determined the basic facts, then the court can instruct
it regarding the law on any facts as found by it to have occurred. The history of
Anglo-American common law trials is testimony to the great and ongoing difficulty
in determining the basic factual basis of a case. The O. J. Simpson murder prosecution
may serve as a recent example of this inherent difficulty in the functioning of the
U.S. justice system. Both sides to the case have their respective versions of “what
happened that day.” The rules of evidence that channel the information flow in a
trial, as we know and use them, are primarily exclusionary rules, which determine
©2001 CRC Press LLC
what historical facts—or, on occasion, opinions—the jury will get to hear. In its
simplest terms, evidence is legally approved information for jury consumption.
The search for past fact by a court or jury is a form of historical research, but
with significant differences. Initially, the facts are presented by interested parties in
an adversary encounter, unaccompanied by the objective search allegedly utilized
by academic historians. Second, the rules of evidence do not open the inquiry to
any facts that may appear logically relevant to the search, but, rather, hedge the
presentation of facts in a context ruled by numerous areas of policy unknown to
historians.
Historians do not have as strong a prejudice against hearsay as does the law,
nor do they require the rigorous foundations for admission as are needed in common
law trials. Historians have few time constraints as to when their task is completed,
whereas civil and, especially, criminal litigants are under a number of time con-
straints, such as statutes of limitations, 120 days within which to try an arrested
person, discovery deadlines, and the disfavor that long trials receive from today’s
judiciary. Finally, although historians have set high standards to determine the
validity of historical conclusions,
9
they are not formally operating under a “beyond
a reasonable doubt” or “preponderance of the evidence” mandate as lawyers are in

criminal and civil cases. The historian’s standard is necessarily more fluid.
10
The history-seeking function of common law trials suffers from the same infir-
mity that efforts by historians to reproduce a past event suffer. Arguments for either
side of a version of history have always been at the center of legal disputes.
III. LAW AND SCIENCE
The key modern decisions addressing the science question have shifted focus as a
result of the growth of biological, chemical, and engineering-based issues arising in
modern product liability and criminal prosecutions. Science-based disputes also
abound in contract actions and regulatory proceedings—those of the Food and Drug
Administration (FDA), the Occupational Safety and Health Administration (OSHA),
the Consumer Product Safety Administration (CPSA), and a bevy of other science-
based government organizations. Modern case law increasingly references a wide
variety of science-based matters, which are becoming challenged in pretrial hearings
in ever-greater numbers. Modern civil procedure codes require that each party, within
a certain number of days after the filing of a complaint, file the names of its expert
witnesses plus a summary of any such opinion and the bases upon which it was
reached, as well as a list of authoritative books or articles that went into the process.
These provisions play a key role in the now-routine pretrial challenge of expert
witness testimony.
State and federal courts in both civil and criminal cases are increasingly occupied
with cases centered on the need for an encompassing and practice-oriented definition
of science and scientific method as an essential precursor to the admissibility of
opinions of experts based upon that science. Indeed, in the past decade, the whole
subject of the propriety and extent of expert testimony in civil and criminal cases
has been attacked from both sides in an ongoing battle over what is a legally
acceptable scientific foundation for the proffering of expert opinion in a wide variety
©2001 CRC Press LLC
of environmental, product liability, and criminal cases. This introductory chapter
will briefly examine the issues involved and the considerable differences that exist

between civil and criminal cases as regards the ongoing use of science-based expert
opinion in modern U.S. litigation.
The question “what is science?” has been one of the most vigorously contested
legal questions in the closing years of the 20th century. It will continue to dominate
discussions in the area of product liability, toxic tort, and a wide variety of criminal
prosecutions in the approaching new millennium. This book will be devoted to the
identification and analysis of how the factual findings of the forensic sciences are
accepted and interpreted in modern criminal trials. Prior to that analysis, however,
it is necessary to set forth the historical and contemporary context within which the
offerings of the forensic sciences are and will be viewed in the 21st century.
For the greater part of the functioning of our state and federal judicial systems,
the question of what was or was not proper scientific method was not viewed as a
prerequisite to the discussion or resolution of a science-related fact question. The
focus for most of the 19th and 20th centuries has been on the qualifications of the
proffered expert witness which, if deemed adequate, usually resulted in an accep-
tance of the propriety of the scientific materials and processes that served as a basis
for the expert’s opinion. Until very recent times in our legal history, most courts
routinely expressed appreciation for the contribution of expert witnesses for assisting
them in the difficult science-based fact-finding process.
10
From the founding of the U.S. nation, up until the year 1923, the question of
the adequacy of scientific methodology and/or opinion simply was not asked. Any
general inquiry into what was adequate scientific methodology as a precursor to the
utilization of expert testimony in the case is a relatively recent phenomenon in U.S.
law. The impression one receives after a close examination of judicial materials from
1798 until the late 1800s is that the question of what was or was not “science” or
a creditable development in the world of science was of concern only to those who
were actually engaged in scientific projects of a wide variety of subjects. There was
no felt necessity on the part of the legal system, with respect to litigation, to utilize
or forge an overarching theory of what was or was not acceptable science.

It is important to note that the term science in the discussions to follow has little
or no connection to the utilization and understanding of that term as it is uniformly
thought of by the international scientific community. John Horgan, the former Sci-
entific American editor, in his excellent book The End of Science: Facing the Limits
of Knowledge in the Twilight of the Scientific Age,
11
sought out the world’s leading
philosophers of science, theoretical physicists, evolutionary biologists, mathemati-
cians, astronomers, and chaos theorists to get their perspective on whether “science”
was at a close, with nothing significant left to be discovered. That book is a superb
survey of modern scientific thinking across varied fields. The present legal question,
regarding the adequacy of a scientific methodology to support expert opinion, is
light years away from the type of scientific inquiry posited by the scholars inter-
viewed by Horgan. Horgan notes the criticism of Nobel prize–winning chemist
Professor Stanley Miller of scientific papers culled from other published papers
where there has been no hard-won finding resulting from extensive laboratory work.
Professor Miller referred to such works as “paper chemistry.” In the hard-fought
©2001 CRC Press LLC
science-based civil cases such as the breast implant actions or polychlorinated
biphenyls (PCBs) and cancer litigation, we may borrow the idea and refer to the use
of previously published articles by way of extrapolation in such cases to claim or
deny causation, as “paper science” such a charge may not be made in toto about
forensic science-based testimony in criminal cases.
12
The attempts to formulate an overarching answer to the question of “what is
science?” in the civil and criminal arenas are entirely distinct in terms of overall
goals, methodology, and practical applications. The issue of whether long-term
exposure to PCBs can cause cancer in a product liability lawsuit is quite different
from the forensic issue of whether hair or fiber expert testimony may be used to
link a defendant to a crime scene in a homicide prosecution. It is also of central

importance to understand the differences between civil and criminal cases in respect
to the performance of actual laboratory work performed to answer key factual issues
in the cases. Forensic scientists “in white lab coats” are routinely involved in forensic
evidence–centered criminal prosecutions. Their work is utilized to shed light on the
physical dynamics that created the crime scene and, it is hoped, to add significant
linking information to the identity of the perpetrator. They are rarely involved in
answering the essential “scientific” causation issues at the center of modern product
liability litigation, such as the breast implant controversy, issues which are the focus
of recent and ongoing U.S. Supreme Court decisions seeking to finalize a “one size
fits all” definition of science.
Examining a set of rhetorical questions revolving around our core inquiry “what
is science?” can help to set the parameters of the discussions to follow. In the legal
contexts of tort or criminal law, the questions may be more precisely stated as: is
this proffered expert opinion based upon a generally accepted and/or reliable sci-
entific methodology? What is the context in which the question is asked? What types
of information are routinely used by court and counsel in the process of answering
such cases? Is any concrete scientific work actually engaged in to answer the question
posed in the case at hand? Who wants to know? Is the questioner a peer-reviewed
journal making a publication decision? Is it a company-employed biochemist strug-
gling with government product approval processes? Is it a forensic pathologist
fighting to support a finding of homicide in a hotly contested murder trial centered
on an initial sudden infant death syndrome (SIDS) determination? Is it a prosecutor
attempting to save his expert witness’s opinion on hair, fiber, or glass particles that
arguably link a defendant to the scene of a violent crime? Is it a patent lawyer trying
to protect her client’s valuable property? Is it a product liability plaintiff or defense
lawyer trying to determine the time frame in a product’s development history wherein
an alleged “defect” issue is focused?
There are two quite distinct areas of legal practice involved here. On the civil
side, “science”-related issues are involved primarily in the area of product liability
and its subset of chemical-based injuries often referred to as “toxic torts.” There are,

of course, a whole range of business-related legal issues that may involve scientific
matters, from contract, patent-infringement, antitrust cases, and the like. On the
criminal law side, the science-based issues cover considerable ground, ranging from
proof offerings in the areas of hair and fiber analyses, soil, glass, and paint identi-
fication, and a host of facts related to forensic pathology, toxicology, blood products,
©2001 CRC Press LLC
and the whole area of ballistics and tool marks. In these criminal cases, some degree
of science is actually and routinely conducted in forensic laboratories for purposes
of generating material facts in the case at hand, such as DNA identifications or bullet
or shell casing matching. This is quite different from civil, product liability-type
cases centered in issues of causation, where not only is no science done for the
immediate case, but published scientific articles, usually not precisely descriptive of
the science at issue, are often utilized inferentially by way of extrapolation analyses.
13
Other than demonstrative tests prepared by one or both litigants in a product liability
case, there is no science done to resolve the causation issue. This is definitely so in
pharmaceutical failure-to-warn cases where each side stacks up the published liter-
ature and seeks to tip it to its side of the warnings issue.
True “science“ questions are rarely central issues even in the most complex of
tort product liability cases. In fact, outside of a clear cause-in-fact or causal relation
problem, rarely the central issue in these cases, the questions revolve much more,
if not exclusively, around the issue of “science as business.” The bulk of product
liability cases do not deal with “science,” understood in the sense discussed in the
world of international science, at least in any sense of that term understood by
research scientists. More often, they focus on one of the ways a manufacturing
corporation has utilized complex but practical science to develop and market prod-
ucts or publishes communications regarding the risks involved in utilizing such
products by their customers.
Failure to warn of risks associated with the intended use of the product, or the
providing of inadequate instructions, is the basis for a very large number of product

liability cases. The true-cause case, such as the breast implant controversy, is a rarity.
It is this limited tort, civil law, context that has provided the source of the contem-
porary legal stimulus to fashion a one-size-fits-all definition of science and scientific
methodology. A representative list of individuals or entities involved in resolving
what is or is not adequate scientific method, as that question relates to tort litigation
or criminal prosecutions, will rarely include scientists in universities or laboratories
engaged in what is traditionally considered pure science. There is a major distinction
to be made between and among pure scientists, and corporate research scientists,
advertising executives, research physicians and practicing physicians. By the time
lawyers arrive on the scene, the injured party has come into contact on a short-term
or long-term basis with a product that has a trade name, packaging, advertising, and
a whole series of other marketing devices employed to encourage the consumer
toward eventual purchase. In this context it is readily seen that the involvement of
the science involved in the creation of the product is long past its involvement in
respect to the injury suffered by the party. So, among science-based product liability
or environmental cases, there is typically no science involved per se, but, rather,
questions of ethical business practice regarding packaging, warnings, and instruction
issues.
14
In its simplest and most practical terms, the question of what is or is not “science,”
typically revolves around the issue of whether an expert witness chosen by one of
the sides in civil or criminal litigation may testify at all, or render a particular opinion,
assuming he or she is qualified to give any opinion. In cases involving a wide variety
of commercially produced chemical compounds, pharmaceuticals, medical devices,
©2001 CRC Press LLC
and engineered goods, court resources in both the state and federal system are being
increasingly taxed in pre-trial hearings seeking to determine the scientific validity
of the methodologies or opinions of an amazingly disparate number of expert wit-
nesses. The recent decision by the U.S. Supreme Court in Kumho Tire v. Car-
michael,

15
holding that the Daubert criterion is available to challenge all expert
witness testimony, will significantly heighten this pressure in the upcoming century.
This introductory chapter will briefly address the key components in the devel-
oping legal doctrine that attempt to provide answers to such questions, the precise
issues involved,and the considerable differences that exist between civil and criminal
cases regarding the extensive use of science, particularly forensic science, in modern
U.S. trials.
IV. SCIENCE AND THE SUPREME COURT
The real-life context out of which the science-based questions addressed in this book
arise is based in the proffer of expert testimony in civil or criminal cases, where one
side, at a pretrial hearing, seeks to challenge the propriety of the other side’s experts
testifying at all, or, as is more frequently the case, to challenge the reliability or
general acceptability of the methodology used by the expert in forming an opinion.
For example, a lawyer in a civil product liability case wants his expert to testify that
long-term exposure to PCBs caused cancer in his client, or that migrating silicone
from defective breast implants or silicone-coated cerebral shunts caused a range of
autoimmune disorders. The company lawyers have their own experts, who will deny
the carcinogenic potential of PCBs or the risk to the autoimmune system from
silicone. In a criminal prosecution for sexual assault and murder, the state may wish
to present complex DNA, hair, and fiber testimony to place the defendant at the
crime scene.
According to tried-and-true evidence law theory, any such witness may be
challenged on several grounds. Initially, the case may simply not call for expertise
at all and the jury may decide the disputed fact without the need for lengthy (and
typically highly prejudicial ) testimony. Second, a particular expert witness may be
challenged on her basic qualifications to give any opinion in the field at issue since
she has insufficient background in education or experience to have anything of value
to offer on the fact at hand. Third, either the methodology utilized by the expert to
support her opinion is not in fact scientifically sound, thereby not capable of sup-

porting the proffered opinion, or the methodology is sufficiently scientifically sound
to support an opinion, but this witness’s opinion based on such method is not
sufficiently derived from such scientific methodology. These third, process-based
objections are the key objections at the center of the current state and federal
controversy over the utilization of scientific opinion in U.S. courts.
Civil cases with central science-based issues are typically product liability or
toxic tort litigation, where the essential science questions often revolve around
whether the defendant’s product “caused” the death or injury allegedly suffered by
the plaintiff. In such cases the defense routinely argues that there is no causative
link between its product and the injury to the plaintiff. These defenses focus on the
single issue of whether the defendant caused the actual injury alleged, without the
©2001 CRC Press LLC
need to determine the contribution of the defendant’s business practices as a major
contributor to any injuries suffered. The evidentiary basis for such arguments is
generally grounded in the findings of published peer-reviewed studies, or proprietary
in-house, internally generated scientific studies obtained through discovery. These
studies, known as state-of-the-art literature, rarely directly address the precise sci-
entific issues that are at the center of the argument. It is from these types of data
that an expert opinion is extrapolated. This process, in turn, has and will continue
to foment science debates in current and future litigation.
In these civil injury cases the scientific questions of cause are considered in the
context of the legal doctrines of cause-in-fact or proximate cause, which concepts
are far removed from questions of causal relation addressed in nonlegal, science-
driven inquiries. In these drug-, chemistry-, and engineering-based cases, the major
issue is typically who has the most persuasive interpretation of what the literature
actually says, to the extent that it does, respecting the physical connection between
the plaintiff’s injury and the components of the defendant’s product with which the
plaintiff was in contact.
16
It is important to recall that, aside from some case-specific

comparative scientific testing, typically done in attempts to replicate the dynamics
of the death-or injury-producing event, there is no actual, long-term science engaged
in to answer the causation-related issues involved. Experts in a variety of products
cases typically give extensive narrative testimony regarding the scientific background
or context of the instant litigation or a case-specific opinion, and it all looks and
sounds “scientific.” However, the fact remains that these exercises and the growing
number of pretrial Frye or Daubert hearings primarily involve talking about the
scientific work of others as to how, utilizing the principles of extrapolation theory,
such studies may shed light on one or more of the causation-centered issues involved
in the case.
17
The areas where science per se, as opposed to product-related business practices,
is the focus of the litigation are those rare cases actually centered on the existence
or nonexistence of physical causation: does silicone released in a breast implant
patient’s body cause autoimmune damage? Does long-term exposure to certain
chemical substances cause cancer? Did the ingestion by pregnant mothers of Ben-
dectin cause birth defects? Even here, opinions based upon preexisting scientific
literature are used by hired experts to answer the question. As noted, this is typically
accomplished without any actual laboratory studies as case-specific data.
18
An examination of judicial materials from 1798 until the late 1800s teaches
that the question of what was or was not “science” or reputable developments in
science was of concern only to those who were indeed engaged in scientific endeav-
ors. There was no pressure or perceived need on the part of the legal system, with
respect to court activity, to utilize or forge an overarching theory of what was or
was not science. The key factor was the solidity of the foundation for the expertise
of the witness herself, not directly the reliability of general acceptability of any
methodology utilized. In fact, it was not until 1923 in the case of Frye v. United
States,
19

that the question was formally addressed by the courts. Even after the Frye
decision, it was not until 70 years later that the U.S. Supreme Court returned to
the issue.
©2001 CRC Press LLC
A. SUPREME COURT CASES
1. Frye v. United States
The Frye test had its origin in Frye v. United States,
20
a short and citation-free 1923
U.S. Supreme Court decision concerning the admissibility of evidence derived from
a systolic blood pressure deception test, a crude precursor to the polygraph machine.
In Frye, the defendant was convicted of the crime of murder in the second degree.
In the course of the trial, defense counsel proffered an expert to testify to the results
of a “deception test” made upon the defendant. The test was characterized as a
“systolic blood pressure deception test.” It was claimed that changes in blood
pressure would be caused by changes in the emotions of the witness, and systolic
blood pressure rises were brought about by nervous impulses sent to the autonomic
nervous system. Scientific experiments, the defense asserted, confirmed that fear,
rage, and pain routinely produced an elevation of systolic blood pressure, and that
conscious deception or falsehood, concealment of facts, or guilt of crime, accom-
panied by fear of detection when the person is under examination, “raised the systolic
blood pressure in a curve, which corresponds exactly to the struggle going on in the
subject’s mind, between fear and attempted control of that fear, as the examination
touches the vital points in respect of which he was attempting to deceive the
examiner.”
21
The proffer was objected to by the government, and the court sustained the
objection. Counsel for the defendant then offered to have the proffered witness
conduct a test in the presence of the jury, which was also denied.
The defendant’s counsel agreed that no cases directly on point had been found.

The broad ground, however, upon which they based their case was the rule that the
opinions of experts or skilled witnesses were routinely admissible in cases in which
the matter of inquiry is such that inexperienced persons were likely to be incapable
of forming a correct judgment upon the matter, due to its subject being a matter of
art or science with which they would be unfamiliar. When the question involved did
not lie within the range of common experience or knowledge, but required special
experience or knowledge, then the opinions of witnesses skilled in that particular
science, art, or trade to which the question related were admissible in evidence.
22
Here, rather than questioning the expertise of the defendant’s expert, the gov-
ernment challenged the basic foundation for the methodology of any such machine.
Thus, the court was required to construct a rule that would assist it and future courts
in determining the sufficient level of confidence that should be reposed in a scientific
methodology supporting any proffered opinion based upon it. Such analysis was to
be had as a precursor to the admissibility of an opinion based upon it.
The court, speaking through Judge Van Orsdel, noted that the issue of just when
a scientific principle or discovery crosses the line between the experimental and
demonstrable stages was difficult to define:
Somewhere in this twilight zone, the court continued, the evidential force of the principle
must be recognized, and while courts will go a long way in admitting expert testimony
deduced from a well-recognized scientific principle or discovery, the thing from which
©2001 CRC Press LLC
the deduction is made must be sufficiently established to have gained general acceptance
in the particular field in which it belongs. We think the systolic blood pressure deception
test has not yet gained such standing and scientific recognition among physiological
and psychological authorities as would justify the courts in admitting expert testimony
deduced from the discovery, development, and experiments thus far made.
23
Thus the court, realizing that legal doctrine had nothing to supplant the views
of the scientists, took the position that if the methodology at issue was generally

accepted by the relevant scientific community, that would be acceptable to the law.
The general acceptability rule was thus born and continued to be the rule for the
next 70 years, until the decision by the U.S. Supreme Court in the famous case of
Daubert v. Merrell Dow Pharmaceuticals,
24
in 1993. It is of great interest to note
that the period of 1923 to 1993 saw the gradual development of and eventual
explosion of product liability law in the 1960s and 1970s. The major work of the
nation’s courts in the products field was the creation and refinement of the mass of
principles involved in forming the law of strict liability for products.
25
It was not
until 1993 when defendant Merrell Dow Pharmaceuticals challenged the methodol-
ogy of the plaintiff’s expert, which, according to his unique methodology, determined
that the interpretation of a body of epidemiological studies opined that the ingestion
of the drug Bendectin was the cause of fetal malformations.
2. Daubert v. Merrell Dow Pharmaceuticals
In the Daubert decision, petitioners were minor children born with serious birth
defects, alleged to have been caused by their mothers’ ingestion of Bendectin, a
prescription antinausea drug marketed by defendant Merrell Dow Pharmaceuticals.
After considerable discovery, Merrell Dow moved for summary judgment, contend-
ing that Bendectin does not cause birth defects in humans and that petitioners would
be unable to come forward with any admissible evidence that it did. In support of
its motion, Dow filed the affidavit of Dr. Steven H. Lamm, a physician and epide-
miologist, who was an experienced and solidly supported expert on the risks from
exposure to various chemical substances. Lamm said that he had reviewed all the
30 published studies on both Bendectin and human birth defects, involving over
130,000 patients and stated that none had found Bendectin to be a substance capable
of causing malformed fetuses. Doctor Lamm concluded that maternal use of Ben-
dectin during the first trimester of pregnancy had not been proven to be a risk factor

for human birth defects.
26
Plaintiffs did not contest this portrayal of the literature regarding Bendectin, but
countered with the testimony of 8 experts of their own, each of whom concluded
that Bendectin can cause birth defects. Their conclusions were based upon in vitro
(test tube) and in vivo (live) animal studies that found a link between Bendectin and
malformations; pharmacological studies of the chemical structure of Bendectin that
purported to show similarities between the structure of the drug and that of other
substances known to cause birth defects; and the “reanalysis” of previously published
epidemiological (human statistical) studies.
27
©2001 CRC Press LLC
The district court granted the respondent’s motion for summary judgment, where,
citing Frye, the court stated that scientific evidence was admissible only if the
principle upon which it is based was sufficiently established to have general accep-
tance in the field to which it belonged, concluding that petitioners’ evidence did not
meet this standard. The court held that expert opinion which was not based on
epidemiological evidence was not admissible to establish causation.
28
The animal-
cell studies, live-animal studies, and chemical-structure analyses on which petition-
ers had relied could not, alone, establish a “reasonably disputable jury issue” regard-
ing causation. Petitioners’ epidemiological analyses, based as they were on recal-
culations of data in previously published studies that had found no causal link
between the drug and birth defects, were ruled to be inadmissible because they had
not been published or subjected to peer review.
29
The U.S. Court of Appeals for the Ninth Circuit affirmed,
30
holding that expert

opinion based on a scientific technique was unacceptable unless the technique was
“generally accepted” as reliable in the relevant scientific community. The court held
that expert opinion based on a methodology that significantly deviated from the pro-
cedures accepted by recognized authorities in the field could not be established to be
“generally accepted as a reliable technique.”
31
The court stressed that other courts of
appeals that had addressed the alleged dangers of Bendectin had declined to accept
reanalyses of epidemiological studies that had not been published or subjected to peer
review.
32
Those courts had indeed adjudged unpublished reanalyses exceptionally prob-
lematic in light of the great import of the original published studies supporting Merrell
Dow, all of which studies had been subject to close review by the scientific community.
The U.S. Supreme Court, speaking through Justice Blackmun, noted that in the
70 years since its formulation in the Frye case, the “general acceptance” test has
been the dominant standard for determining the admissibility of novel scientific
evidence at trial, and, that while under increasing criticism, it nonetheless continued
to be followed by a majority of courts,
33
including the ninth circuit. Justice Blackmun
observed that the merits of the Frye test had been much debated, and that the
scholarship on its proper scope had continued to grow at an ever-increasing pace.
34
Here the court agreed with Merrell Dow that the proper focus of such discussions
should henceforth be the provisions of the Federal Rules of Evidence, not the 70-
year-old Frye decision. The court noted that they were required to interpret the
legislatively enacted Federal Rules of Evidence as they would any statute, and that
Rule 401 and 402 provided the baseline theory.
35

These two rules of relevancy were
to be utilized in these cases in conjunction with Rule 702, setting forth the basic
principle regarding the admissibility of expert testimony.
36
The court observed that
nothing in the language of Rule 702 or the rules as a whole mandate general
acceptance as an absolute prerequisite to admissibility and, indeed, any such inter-
pretation would be at odds with the liberal thrust of the Federal Rules of Evidence.
Having concluded that the Frye test was replaced by the Rules of Evidence,
however, did not mean that there were no checks on the admissibility of purportedly
scientific evidence. Nor was a trial judge disabled from screening such evidence.
Under the Federal Rules of Evidence, the trial judge was required to warrant that
©2001 CRC Press LLC