Hastings Law Journal


In Daubert v. Merrell Dow Pharmaceuticals, the United States Supreme Court replaced the general acceptance standard of Frye v. United States, used in assessing the admissibility of expert testimony, with the validity standard of Daubert. The Daubert Court directed judges to actively evaluate scientific evidence and placed the initial burden of demonstrating validity of scientific evidence on the proponent of the evidence and the initial responsibility for evaluating that validity on the judge. This directive to judges, who are now expected to become sophisticated consumers of science, raises a number of questions and potential difficulties about the scope of this new responsibility and how this responsibility is to be implemented as a practical matter.

In his Essay, Professor Faigman explores these questions and offers a framework through which judges might resolve the complicated and difficult issues the questions pose. The author considers "the scope of a judge's responsibility under Daubert and examines Daubert in light of the general principles of the Rules of Evidence. The author then considers the level of sophistication needed for judges to become consumers of science and the composition of the evidentiary framework into which science must be integrated.

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