Changes in the Reference Manual on Scientific Evidence (Third Edition)

By Rogers, James F.; Shelson, James et al. | Defense Counsel Journal, July 2013 | Go to article overview
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Changes in the Reference Manual on Scientific Evidence (Third Edition)

Rogers, James F., Shelson, James, Zeigler, Jessalyn H., Defense Counsel Journal

THE FIRST EDITION of the REFERENCE MANUAL ON SCIENTIFIC EVIDENCE was published in 1994 shortly after the United States Supreme Court decided Daubert v. Merrell Dow Pharmaceuticals, Inc. (1) The REFERENCE MANUAL ON SCIENTIFIC EWDENCE (Second Edition) ("RMSE Second") was published in 2000. The REFERENCE MANUAL ON SCIENTIFIC EVIDENCE (Third Edition) ("RMSE Third") was published in September 2011.

This article does three things. First, it discusses four new chapters--forensic science, exposure science, neuroscience, and mental health--that were added to RMSE Third. Second, it identifies the cases that cited RMSE Third as of May 20, 2013. Third, it discusses some of the changes to RMSE Third that favor a weakening of the Daubert standard for the admissibility of expert testimony.

I. New Chapters in RMSE Third

RMSE Third adds four new chapters from its predecessor edition: forensic science, exposure science, neuroscience, and mental health.

A. Forensic Science

The chapter on forensic identification expertise analyzes fingerprint, handwriting, firearms identification, bite mark, DNA (2) and microscopic hair evidence, as well as recurrent issues that arise with these types of evidence. It discusses the admissibility of each of these types of evidence and the ways in which expert testimony can be presented in court. The chapter also discusses limitations on testimony, restrictions in final argument, and procedural issues regarding these areas.

B. Exposure Science

Exposure science, a subject often at issue in toxic tort and product liability cases, is explored in the Third Edition. The Manual addresses four major situations in which exposure science can be applied: consumer products, contaminants in the environment, chemicals in the workplace, and disease causation. The chapter reviews the goals of exposure assessment and includes determining who has been, or could become, exposed to a specific chemical from one or more specific source, by what routes people are exposed, and the magnitude and duration of exposure to a chemical without danger. The chapter discusses potential areas of testimony from experts in cases where exposure science may be helpful, such as the source of the exposure, the time it occurred, and the duration and dose of the exposure.

C. Neuroscience

The new edition also introduces the Reference Guide to neuroscience. The chapter gives a brief overview of the structure and function of the brain, describes tools used by neuroscientists to understand it, and discusses issues to consider when interpreting these findings. The Guide explains ways that neuroimaging can be presented as evidence. In addition, the chapter discusses how EEG and MEG measure electrical activity in the brain and can show response to certain stimuli. The chapter reviews issues regarding interpretation of study results, including an inability to replicate results, problems in the experimental design, the lack of number and diversity of subjects, problems applying group averages to individuals, and technical accuracy of imaging results. The chapter discusses how Federal Rules 401 and 402 (relevance), Rule 403 (prejudice v. probative value), Rule 702 (expert testimony), and rules about character evidence may impact the admissibility of neuroscience evidence, along with Constitutional issues under the Fourth and Fifth Amendments.

D. Mental Health Evidence

The final addition to the Third Edition is the chapter on mental health evidence. This chapter discusses the legal situations in which mental health issues can arise (both criminal and civil), reviews the different types of mental health experts and their potential roles as expert witnesses, and explores major mental disorders from the Diagnostic and Statistical Manual (DSM) that may impact legal cases. The chapter discusses predictive assessments, such as those of violence risk or future functional impairment, and the treatment of mental disorders, including the short and long term effects of medication, psychological treatment, brain stimulation, and psychosurgery.

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