The Daubert/Kumho Implications of Observer Effects in Forensic Science: Hidden Problems of Expectation and Suggestion

In 'Kumho Tire Co. v. Carmichael' the United States Supreme Court put forward two important principles for the control of expert evidence. The first is that the judge's gatekeeping responsibility to insure minimum reliability of expert testimony pursuant to Federal Rule of Evidence 702. applies to all proffered expert testimony, not just the explicit products of "science." The second, less explicit but no less important, is that this judgment must be made concerning the "task at hand," instead of globally in regard to the average dependability of a broadly defined area of expertise. In other words, reliability cannot be judged "as drafted," but must be judged only specifically "as applied." The Court repeatedly made this clear in 'Kumho Tire', perhaps best when it said.