Academic journal article Fordham Urban Law Journal

Whose Fault? - Daubert, the NAS Report, and the Notion of Error in Forensic Science

Academic journal article Fordham Urban Law Journal

Whose Fault? - Daubert, the NAS Report, and the Notion of Error in Forensic Science

Article excerpt

"Handwriting is even more precise than DNA evidence for identification purposes."(1)

The notion of "error" and "error rates" is central both to the Daubert opinion (2) and to the recent NAS Report on the strengths and weaknesses of forensic science in the United States. (3) As might be expected, the NAS Report does a better job of explaining the kinds of error it is concerned with than did the opinion in Daubert. However, both to a greater or lesser degree fall short of a full consideration of the concept of error, and so doing, they invite confusion about how inaccurate results in criminal adjudication may occur, and who if anyone is to blame.

When I set out to write on this state of affairs, I was not particularly surprised by it. Courts at all levels are at times notoriously imprecise about important concepts, and the NAS Committee that generated the report was operating in a setting and in a tradition where the notion of error seemed to them, perhaps wrongly, to be intuitively obvious. What I was surprised about when I looked into the matter was that this unexamined approach to the concept of error prevailed in the very discipline where one would expect it to have been carefully taxonomized and theorized to a fare-thee-well in at least a dozen different ways, that is, philosophy in general and epistemology in particular. Nor is this condition any great secret within the philosophical literature. (4) It has been repeatedly noted as a glaring lacuna for well over a century. (5) However, very little appears to have been done about it. (6)

Needless to say, I will not be attempting a full-scale examination of the concept of error in this paper. However, I believe there are some observations that can be made that may be helpful in domesticating in helpful ways the notion of error as it might apply to forensic science expertise. Error in relation to forensic science presents fewer difficulties than a fully generalized treatment, because there are certain problems necessarily taken on by a full scale philosophic treatment that can be safely put aside. The issues of radical skepticism and the very possibilities of knowledge and error can be properly assumed away, for instance, because the givens of the law as a practical enterprise resolve those for the purposes of the law. (7) And the difficult issue of normative error can also be sidestepped, (8) because forensic science explicitly deals only with conclusions about empirical facts.

However, limiting ourselves to the notion of factual error still leaves plenty to do. To begin at the beginning, such error can only exist as a function of the human mind. There can be no error except in regard to a belief or action that is judged at a later time by some human agent to have been wrong in some respect, by some invoked criterion. A mouse's stillbirth is not an error, merely an event (although it may be referred to in anthropomorphic metaphor, and somewhat misleadingly, as an "error of nature"). Independent of sentient belief, purpose or action, there is no error in the natural world. Whatever happens simply is. For our purposes, only humans can make errors, or be in error. (9)

There are in fact two different fundamental approaches to the concept of error which are important to consider, and which are significantly in tension with each other. (10) We may label them the normative idea of error and, for want of a better term, the objective idea of error. Failing to separate the two can lead to various confusions and troubles.

Although in the end it is not really important which is taken as primary, I regard the normative notion as foundational both in normal usage and in underlying psychology. In this most fundamental sense, an assertion of error entails a claim or charge of both mistake and fault, that is, a proposition that asserts that a belief, claim, or action is or was wrong in some respect, coupled with an argument invoking a ground to assert its wrongness which is made in such a way as also to assert that the person whose belief, claim, or action is under consideration was at fault in taking the action, or was at fault at the time in holding the belief or asserting the claim, or at least would now be at fault in continuing to do so. …

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