Skip to content

The Myth of the Reliability Test

Journal: Fordham Law Review
Published: 2018
Primary Author: Brandon Garrett
Secondary Authors: C.M. Fabricant

The U.S. Supreme Court’s ruling in Daubert v. Merrell Dow Pharmaceuticals, Inc., and subsequent revisions to Federal Rule of Evidence 702, was supposed to usher a reliability revolution. This modern test for admissibility of expert evidence is sometimes described as a reliability test. Critics, however, have pointed out that judges continue to routinely admit unreliable evidence, particularly in criminal cases, including flawed forensic techniques that have contributed to convictions of innocent people later exonerated by DNA testing. This Article examines whether Rule 702 is in fact functioning as a reliability test, focusing on forensic evidence used in criminal cases and detailing the use of that test in states that have adopted the language of the 2000 revisions to Rule 702. Surveying hundreds of state court cases, we find that courts have largely neglected the critical language concerning reliability in the Rule. Rule 702 states that an expert may testify if that testimony is “the product of reliable principles and methods,” which are “reliably applied” to the facts of a case. Or as the Advisory Committee puts it simply, judges are charged to “exclude unreliable expert testimony.” Judges have not done so in state or federal courts, and in this study, we detail how that has occurred, focusing on criminal cases, where the vast majority of criminal cases are brought in state and not federal court. We assembled a collection of 229 state criminal cases that quote and in some minimal fashion discuss the reliability requirement. This archive will hopefully be of use to litigators and evidence scholars. We find, however, that in the unusual cases in which state courts discuss reliability under Rule 702 they invariably admit the evidence, largely by citing to precedent and qualifications of the expert or by acknowledging but not acting upon the reliability concern. In short, the supposed reliability test adopted in Rule 702 is rarely applied to assess reliability. We call on judges do far more to ensurereliability of expert evidence and recommend sharper Rule 702 requirements. We emphasize, though, that it is judicial inaction and not the language of Rule 702 that has made the reliability test a myth.

Related Resources

What’s in a Name? Consistency in Latent Print Examiners’ Naming Conventions and Perceptions of Minutiae Frequency

What’s in a Name? Consistency in Latent Print Examiners’ Naming Conventions and Perceptions of Minutiae Frequency

Fingerprint minutia types influence LPEs’ decision-making processes during analysis and evaluation, with features perceived to be rarer generally given more weight. However, no large-scale studies comparing examiner perceptions of minutiae…
Shifting decision thresholds can undermine the probative value and legal utility of forensic pattern-matching evidence

Shifting decision thresholds can undermine the probative value and legal utility of forensic pattern-matching evidence

Forensic pattern analysis requires examiners to compare the patterns of items such as fingerprints or tool marks to assess whether they have a common source. This article uses signal detection…
The Contribution of Forensic and Expert Evidence to DNA Exoneration Cases: An Interim Report

The Contribution of Forensic and Expert Evidence to DNA Exoneration Cases: An Interim Report

This report is from Simon A. Cole, Vanessa Meterko, Sarah Chu, Glinda Cooper, Jessica Weinstock Paredes, Maurice Possley, and Ken Otterbourg (2022), The Contribution of Forensic and Expert Evidence to…
CSAFE Project Update & ASCLD FRC Collaboration

CSAFE Project Update & ASCLD FRC Collaboration

This presentation highlighted CSAFE’s collaboration with the ASCLD FRC Collaboration Hub.