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Courts Should Admit 'Educated Guesses'

That is the recommendation of George Mason University School of Law professor David E. Bernstein in a new research paper, Expert Witnesses, Adversarial Bias, and the (Partial) Failure of the Daubert Revolution. The article is garnering attention from blogs such as TortsProf Blog, Blog 702 and

For Bernstein, the question is whether the rationales underlying Daubert and federal evidence rule 702 hold up in practice. He concludes that, while rule 702 "attempts to serve a worthy goal, ... it far from fully succeeds in efficiently achieving this goal." One significant failure:

"Rule 702 does nothing to address the huge gaps in resources between the prosecution and most defendants that severely inhibit defendants' ability to challenge unreliable prosecution expert testimony."

Applied correctly, rule 702 does succeed in barring "junk science" from the courtroom, Bernstein believes. But "it does so at the expense of excluding speculative evidence supporting causation." Bernstein's proposed solution:

"The way around this problem is to amend Rule 702 to allow courts to admit educated guesses about causation, but only when nonpartisan experts, not subject to adversarial bias, are willing to make such guesses."

My nonexpert educated guess: Implementing Bernstein's suggestion would face a hard-fought fight.

Posted by Robert J. Ambrogi on February 20, 2007 at 05:59 PM | Permalink | Comments (0)


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