Midyear Meeting

Resolution Tackles Expert Evidence Issues in Criminal Cases

The ABA House of Delegates has approved a resolution designed to help jurors in criminal cases assess expert evidence.

Resolution 101C urges judges and lawyers to consider several factors in determining how expert evidence should be presented to juries and how jurors should be instructed. The resolution lists seven factors, including:

• Whether experts can identify and explain the theoretical and factual basis for any opinion given in their testimony and the reasoning upon which the opinion is based.

• Whether experts use clear and consistent terminology in presenting their opinions.

• Whether experts explain the reliability of evidence and fairly address problems with evidence including relevant evidence of laboratory error, contamination, or sample mishandling.

A 2009 report by the National Academy of Sciences noted several problems with the presentation of expert testimony. The National Academy raised concerns about the use of terms such as “match,” “consistent with” and “identical,” and said such terms should be defined and standardized. Another problem noted by the Academy is that some forensic practitioners claim their methodologies have perfect accuracy.

The Criminal Justice Section sponsored the resolution. According to a report accompanying the resolution, “In any complex case involving contested forensic science issues or case where the contested forensic science issues are difficult to comprehend, the parties and the court should be encouraged to find innovative solutions to facilitate jury understanding, such as accommodations in the trial structure to permit expert witnesses from both sides to testify sequentially or permitting jurors to actively participate in questioning the expert witnesses.”

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