The Daubert Standard provides for opposing motions, as well as judicial discretion, in certain cases involving the presentation of ostensibly scientific testimony presented at trial. The standard grew out of a series of cases in the 1990s in which so-called ‘expert scientific testimony’ was crucially questioned by counsel. In common with many other important rulings, this one has both intuitive and unintuitive elements. On the one hand, scientific evidence’and more specifically, adjudication concerning whether a piece of evidential testimony is truly scientific, and therefore worthy of the relevant level of credence’is increasingly important in criminal law, especially at the Federal level. Someone must make decisions, setting aside the appeals process, concerning whether to allow or exclude relevant cases of testimony; and it is not clear that any neutral party, other than the judge, is better suited to the task. On the other hand, for all their learning and expertise, even the best judges are not truly qualified to render a verdict concerning whether a piece of testimony counts as genuinely scientific.

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The Daubert Standard includes a number of elements, such as the fact that the judge shall serve as ‘gatekeeper’ concerning whether a particular piece of testimony is borne of truly scientific evidence; whether expert testimony is reliable and relevant; and whether putative testimony fits with accepted standards concerning scientific methodology. The canons for the latter consist of an elementary understanding of scientific verification and testing (Walsh 1998).

One of the most prominent cases in which the Daubert Standard has been applied is Barefoot v. Estelle. It was in the sentencing phase of this trial that the relevant questions arose. Therefore, there was no explicit and relevant questioning of the evidence upon which the defendant was accused. Thomas Barefoot had been convicted of murdering a police officer. Texas is fond of the death penalty, but even in that state certain standards must be met. The key question concerning Barefoot was the likelihood that, if ever released, he would pose a danger to society. (Apparently no one considered the possibility of incarceration without the possibility of parole.) Two psychiatrists testified during the sentencing phase of the trial. It is important that neither of them chose to examine, or even to question, Barefoot. Despite this, each very confidently testified that Barefoot was a ‘sociopath’, and beyond treatment or rehabilitation. One of them claimed that there was no treatment for his condition, and that it was highly likely that he would pose a future risk to the community, whenever he might be released. The other asserted that, on a scale of one to ten, Barefoot rated ‘above ten’ in his sociopathic tendencies, and his correlative future risk to the community. Barefoot was sentenced to death.

Barefoot’s attorneys understandably appealed the sentence, arguing that neither of the witnesses was competent to determine his future likelihood of harm to society; certainly not with the exhibited level of conviction and assurance. The Daubert Standard is relevant to this case in a number of respects. But perhaps the most important of these is that, had either the judge or the jury been at all acquainted with the sciences of psychology and psychiatry, they would have realized that seldom if ever are adepts in these disciplines able to predict future outcomes with anything approximating the certainty that the two relevant witnesses in Barefoot’s trial exhibited.

The most generous assessments of the reliability of respected practitioners is these fields, with respect to judgments of risk such as this one, place them at around 66% reliable. In the Barefoot trial, not only were the ‘expert’ witnesses not established to be expert, or even respected, members of their profession, but both witnesses purported to have effective certainty concerning their pronouncements. Partly because of this, Thomas Barefoot was executed on October 30, 1984. In his final statement he expressed the wish that the wife of the officer he had slain would someday forgive him (Harvard Law 1983). The Daubert Standard was perhaps not shown to be incorrect by this trial. But the trial, and its ultimate outcome, surely did not count in the Standard’s favor.

  • Harvard Law. (1983). Barefoot v. Estelle. U.S. 880 Accessed 11 January 2017.
  • Walsh, J. (1998). The Evolving Standards of Admissibility of Scientific Evidence. Accessed 11 January 2017.