Daubert Standard Research Articles

Evaluasi Metode Audit Penghitungan Kerugian Keuangan Negara pada Badan Pengawasan Keuangan dan Pembangunan

This research aims to evaluate the audit method for Calculating State Financial Losses (PKKN) by the Financial and Development Supervisory Agency (BPKP). This research method is qualitative, with an evaluation approach using case studies at BPKP. The primary data used in this research are the results of interviews with BPKP auditors who have carried out PKKN audits and are experts in court. The trial decision document will be mapped based on case description themes, PKKN methods, and PKKN values. The secondary data used is a copy of the court decision on a criminal corruption case that was finalized and downloaded from the official website of the Supreme Court (MA). The implementation of the PKKN audit by BPKP is evaluated using a fraud theory approach, the REAL Tree concept, and applicable laws and regulations. The provision of expert testimony in court will be considered using the Daubert test. The results of this research are that the PKKN audit by BPKP does not follow the fraud theory approach because it does not create and test hypotheses. There is a PKKN method that differs from the REAL Tree concept because BPKP auditors apply the criteria for real and definite state financial losses (actual loss) without considering compelling interest as a time value of money concept. Providing expert information by BPKP auditors is different from the Daubert test because BPKP does not require monitoring and evaluating court decisions and does not carry out peer reviews of PKKN methods.

Models on trial: antitrust experts face Daubert challenges

ABSTRACT Economists are often called upon as expert witnesses by the parties involved in antitrust litigation. One challenge they may face in US federal courts is compliance with the Daubert standard of admissibility of expert testimony. The interplay between model applicability and the Daubert standard is analyzed, suggesting the importance of distinguishing between weak applicability claims, those that state that a model’s critical assumptions are shared by the target, and strong applicability claims, those that connect empirical models and quantitative market features. Recent antitrust cases in which expert testimonies based on economic models have been assessed following the Daubert standard are examined using this framework. Some normative implications are drawn concerning how to improve judges’ assessment of model-based arguments.

Sensitivity Study on Loss of Productivity Quantification Methods

It is a difficult and challenging task to quantify lost labor productivity in construction claims, especially in the context of the Daubert standard (or Daubert challenge). The Daubert standard has influenced the presentation of expert opinions and testimony in construction cases, including disputes over loss of productivity. One of the factors be considered by triers of fact bounded by the Daubert standard in order to determine whether proffered evidence is reliable is the known or potential rate of error. Sensitivity analysis is the study of how uncertainty in the output of a method or model can be traced to sources of uncertainty in the input; sensitivity analysis can help test the robustness of results calculated using a model in the presence of uncertainty or errors. In this study, sensitivity analyses for common methods of quantifying loss of productivity are presented, and the robustness of the results produced by those methods is assessed. The impact of uncertainties in various sources of data on loss of productivity quantification is also examined. The study’s primary contribution to the overall body of knowledge is to provide insights into the robustness of various loss of productivity quantification methods, especially in the context of the Daubert challenge.

The Case for Validating ADDIE Model as a Digital Forensic Model for Peer-to-Peer Network Investigation

AbstractRapid technological advancement can substantially impact the processes of digital forensic investigation and present a myriad of challenges to the investigator. With these challenges, it is necessary to have a standard digital forensic framework as the foundation of any digital investigation. State-of-the-art digital forensic models assume that it is safe to move from one investigation stage to the next. It guides the investigators with the required steps and procedures. This brings a great stride to validate a non-specific framework to be used in most digital investigation procedures. This paper considers a new technique for detecting active peers that participate in a peer-to-peer (P2P) network. As part of our study, we crawled the µTorrent P2P client over ten days in different instances while logging all participating peers. We then employed digital forensic techniques to analyse the popular users and generate evidence within them with high accuracy. We evaluated our approach against the standard Analysis, Design, Development, Implementation, and Evaluation (ADDIE) model for the digital investigation to achieve the credible digital evidence presented in this paper. Finally, we presented a validation case for the ADDIE model using the United States Daubert Test and the United Kingdom’s Forensic Science Regulator Guidance – 218 (FSR-G-218) and Forensic Science Regulator Guidance – 201 (FSR-G-201) to formulate it as a standard digital forensic model.

Daubert Considerations in Forensic Evaluations by Telepsychiatry.

The COVID-19 pandemic has increased demand for telepsychiatric services. Forensic psychiatrists can expect to receive more requests for assessments conducted via videoconferencing technology in the years to come. Under current rules of evidence in the United States, the testimony of expert witnesses is introduced as a form of scientific evidence and may be challenged by opposing counsel through Daubert hearings. In a Daubert challenge, courts may evaluate proposed expert testimony through four criteria relating to scientific reliability and validity: whether the testimony is based on methods that emerge from a testable hypothesis, whether the method has been subjected to peer review, the known or potential rate of error associated with the method, and whether the method has achieved general acceptance in the relevant scientific community. To date, courts have not addressed whether testimony based on a telepsychiatric assessment would meet standards of reliability and validity for admission into evidence, as applied in a typical Daubert hearing. This article explores the Daubert standards and other potential objections to telepsychiatry as they may apply to forensic psychiatric examinations conducted via videoconferencing technology. The discussion also provides suggestions to evaluators to increase the likelihood of such testimony surviving a Daubert challenge.

Expert Signs and Legal Burdens

Expert signs and expert evidence generate a justification problem in legal factfinding: factfinders cannot form a justified belief about the relevant matter, nor justify the acceptance of an expert testimony, insofar as they do not understand it. The different profiles of factfinders in different legal systems (with jury trial or not) do not make a substantial difference for the point addressed, namely the epistemic or doxastic impasse generated by the inability to understand expert signs, for this occurs everywhere. However, legal systems have a way out of the impasse: burdens of proof. Burden rules govern the outcome of a case. If a burden is not discharged, decision must be against the burdened party. After discussing various aspects of the “Daubert trilogy” and performing a semiotic analysis of one case in particular (Kumho), the paper explores the impact that legal burdens have on expert evidence issues.

On the Criteria for Evaluating an Expert's Opinion and Forensic Methods by Participants in the Legal Proceedings

The issues of assessing the reliability of experts’ opinions are common for Russian and Anglo-Saxon legal proceedings. In the Russian legislation there are no legal norms or regulated rules defining this procedure. At the same time, in the USA there is Rule 702 “Expert Witness Testimony” of the Federal Code of Evidence which establishes four criteria that courts should consider when assessing the admissibility of the testimony of a forensic expert. Besides, based on court decisions, Fry and Daubert standards have been adopted. They determine criteria for methods used in conducting forensic examination in the United States. The article analyzes and evaluates the compliance of expert methods applied in Russia with the Fry and Daubert standards. The analysis shows that not all methods meet the criteria of Daubert standard. In particular, the structures of the so-called subjective methods do not provide calculations of a known or potential error rate as well as a mechanism for monitoring the conduct of various stages of a study. The article also discusses other foreign projects aimed at minimizing erroneous conclusions and reforming the system of forensic examination: the Innocence project, reports prepared by the US National Academy of Sciences (NAS report) and the US Presidential Council for Science and Technology (PCAST report). The authors believe that it is essential for the Russian legislation to develop criteria for evaluating experts’ opinions, research methods and scientific validity of the obtained results as well as the to formulate the appropriate norms.

From Quantitative Fact to Discursive Practice: Techniques for Asserting the Reliability of Anthropological Knowledge in Expert Testimony

AbstractUnlike other expert witnesses, cultural anthropologists must not only provide expert evidence on the case but also convince judges of its validity for meeting the Daubert standard. In this article, I juxtapose two expert testimony reports I have written in criminal and asylum cases. For the first, I conducted cultural consensus analysis, a formal quantitative technique, to gather data on beliefs about co‐sleeping behavior among Mexican migrants. For the second, I relied on discursive practice to signal the facts as meeting the standard of evidence. I argue that despite anthropology not being an “exact science,” our locus at the intersection of the sciences, social sciences, and humanities provides us with a range of tools to assert the reliability and validity of our testimony.

A Saga of Intellectual Property Licensing: Investigating the Credibility of 25 Percent Rule

A healthy IP system creates opportunities and benefits for the industries, consumers, small businesses, governments, and the economy, including greater innovation, choice, competition, and jobs. Incentives to innovate, job creations, opportunities and revenue generation for governments make the environment interoperable and beneficial for all stakeholders. The IP created by industries and individuals can be licensed to others as a way of generating revenue. It is within this, already complex environment, where negotiating a fair royalty rate can become one of the most challenging tasks. It is here where the application of the 25 percent rule emerged as a rule of thumb, to determine royalty rates in most licensing transactions, specifically in patent licensing. In light of the above, this research study has looked into different issues relating to the credibility of the 25 percent rule after the Uniloc case. Moreover, this study tried to trace out and examine multiple issues, such as the validity of the grounds for rejecting the Rule, the criticism leveled against it, the applicability of the Daubert standards, limitations and exceptions to the Rule and other related issues that will answer the credibility of the 25 percent rule.

A Forensic Breakthrough: Proteomic Analysis of Human Hair for Individuation Evidence

Following a number of reports casting serious doubt on the validity of commonly used methods, the forensic sciences are in a state of crisis. Optical hair analysis for individuation has been shown to be particularly susceptible to erroneous findings. This error comes both in the form of incorrect identifications as well as examiners overstating the weight of optical hair analysis evidence. Absent DNA, there is currently no method available to forensic scientists to provide individuation evidence using a hair sample. Hair protein individuation (“HPI”) aims to fill in this crucial gap in the forensic sciences. HPI utilizes well-established scientific techniques including tandem mass spectrometry, which is already used heavily by forensic scientists for drug identification, to offer an objective, instrument-based analysis of the human hair proteome for individuation evidence. To date there is no legal scholarship concerning HPI, this article provides the first legal analysis of the admissibility of HPI. First, the article details the process of HPI, including literature review, and analyzes the technique for admissibility as evidence of individuation under the Federal Rules of Evidence and the Daubert standard. The article finds that HPI is built on a strong foundation of well-established scientific principles and therefore likely passes the requirement of foundational validity. Next, an examination of validity as applied finds that HPI is likely admissible under certain circumstances relating to the extent of the research conducted to date. Specifically, HPI in its current state may be admissible evidence if the examiner has cranial hair of European origin in sufficient quantity to perform the technique in duplicate. The article concludes with recommendations for future research and collaborations to expand the admissibility of HPI. HPI is a rapidly growing field of study and its admissibility is likely to expand with further research. Forensic hair analysis is undergoing a paradigm shift and HPI stands ready to replace outdated methods, judges and forensic scientists alike should stay informed of its progression.

Üç Farklı Görüntüleme Tekniğinden Alınan Tibia Ölçümlerinin Güvenilirliğinin Değerlendirilmesi

Antropolojik araştırmalarda özellikle de adli antropoloji çalışmalarında kullanılan bir yöntemin hata oranlarının verilmesi yapılan çalışmanın uygulanabilir olması için oldukça önemlidir. Günümüzde özellikle teknolojik gelişmelerle birlikte çok sayıda yeni yöntem geliştirilmekte ve literatüre eklenmektedir. Non-invaziv olması ve verilerin kalıcılığı gibi sebeplerden son yıllarda özellikle medikal görüntüleme teknikleri antropolojik araştırma süreçlerinde sıklıkla yararlanılan teknolojilerden biri olmaktadır. Bu sebeple bu tekniklerin kullanılmasıyla oluşturulan yeni yöntemlerin uygulanabilirliğini analiz etmek önemlidir. Ayrıca, Daubert standartları ile birlikte mahkemede kullanılan bilimsel çalışmalar için kabul edilirlik kriterlerinin oluşturulmasından bu yana adli antropologlar tarafından kullanılan yöntemler ciddi bir inceleme altına girmiştir. Bu sebeple, antropolojik araştırmalarda kullanılan biyolojik profillerin oluşturulmasında sıklıkla tercih edilen metrik ölçümlerin tekrarlanabilir ve güvenilir olmasını sağlamak önemlidir. Bu çalışmanın amacı; biyolojik profil veya popülasyon spesifik formüller oluşturmak için kullanılan metrik ölçümlerde aynı bilgisayar yazılımı içerisinde farklı görüntüleme tekniklerinden alınan tibia ölçümleri arasındaki gözlemci içi güvenilirliği analiz etmektir. Bu sebeple, bilgisayarlı tomografi görüntülerinden elde edilen 15 adet sanal tibia görüntüsü çalışmanın verisini oluşturmaktadır. OsiriX programı kullanılarak işlenen tibia görüntülerinden alınan beş adet metrik ölçüm SPSS 24.0 ve Excel yazılım paketleri kullanılarak analiz edilmiştir. Üç farklı görüntüleme tekniğinden alınan beş ölçüm ANOVA analizi kullanılarak karşılaştırılmıştır. Gözlemci içi güvenilirlik analizi için sınıf içi korelasyon katsayısı (ICC) kullanılmış ve gözlemci hatası TEM, rTEM ve R hesaplanarak analiz edilmiştir. Sonuç olarak tibiadan alınan metrik ölçümlerde üç farklı görüntüleme tekniği kıyaslandığında MDEB ölçümü dışında diğer dört ölçüm arasında anlamlı bir farklılık gözlenmemiştir. Bununla birlikte yalnızca hacimsel görüntülemeden alınan beş ölçümün hepsi için gözlemci içi güvenilirlik 0.998-0.948 (yüksek güvenilirlik) arasında değişmekte ve bu durum özellikle adli antropoloji çalışmaları için önerilen değer aralıklarını karşılamaktadır. Bu sebeple, üç görüntüleme tekniği arasında hacimsel görüntülemeden alınan ölçümlerin gözlemci içi güvenilirliği en yüksek olduğu için ileride yapılacak çalışmalarda hacimsel görüntüleme modunun tercih edilmesinin daha güvenilir sonuçlar vereceği düşünülmektedir.

When Public Health Is Eroded by Junk Science: Muzzling Anti-Vaxxer FEAR Speech - And the First Amendment

The 2018-2019 measles epidemic was the worst the world (and the US) had seen in almost 30 years, manifesting in increased morbidity, mortality, hospitalizations, and public health expenditures. Public Health officials and legal scholars attribute the rise to the emergence of organized and well-funded anti-vax groups. These groups disseminate false, endangering and reckless propaganda (what I call FEAR speech) with the objective of fostering vaccine resistance. Pamphleteering and conferences/symposia sponsored by these groups have been blamed for successfully persuaded a vulnerable public that vaccination is dangerous. The World Health Organization lists these groups among the top five public health threats. This is the first article to document the influence of anti-vax activities in stoking the explosiveness of four recent virulent epidemics in the developed world (three in the US and Israel) by comparing the most recent epidemics with ones occurring within the last decade in the same locality and then propose a novel legal solution to address the anti-vax threat. While five states have legislatively removed non-medical exemptions to the nationally required pre-school vaccination, that number has stalled, suggesting rising vaccine resistance, and increasing vulnerability. I therefore propose that controlling FEAR speech would be the best method to foster vaccine compliance, noting that to do so would trespass on conventional first amendment protections. The article then suggests various means of overcoming constitutional restrictions before proposing a novel methodology to address this emerging concern: content-neutral legislation that would extend the Daubert standard of evaluating scientific assertions to those made in the public domain when the objective is to influence public conduct in a manner deleterious to the national health, safety, and security.

Digital Forensic Analysis of Industrial Control Systems Using Sandboxing: A Case of WAMPAC Applications in the Power Systems

In today’s connected world, there is a tendency of connectivity even in the sectors which conventionally have been not so connected in the past, such as power systems substations. Substations have seen considerable digitalization of the grid hence, providing much more available insights than before. This has all been possible due to connectivity, digitalization and automation of the power grids. Interestingly, this also means that anybody can access such critical infrastructures from a remote location and gone are the days of physical barriers. The power of connectivity and control makes it a much more challenging task to protect critical industrial control systems. This capability comes at a price, in this case, increasing the risk of potential cyber threats to substations. With all such potential risks, it is important that they can be traced back and attributed to any potential threats to their roots. It is extremely important for a forensic investigation to get credible evidence of any cyber-attack as required by the Daubert standard. Hence, to be able to identify and capture digital artifacts as a result of different attacks, in this paper, the authors have implemented and improvised a forensic testbed by implementing a sandboxing technique in the context of real time-hardware-in-the-loop setup. Newer experiments have been added by emulating the cyber-attacks on WAMPAC applications, and collecting and analyzing captured artifacts. Further, using sandboxing for the first time in such a setup has proven helpful.

§7.7 Reliability Standard (Daubert, Frye)

This article addresses the Daubert standard of reliability for the admission of scientific evidence. It also addresses the requirements of FRE 702, which was amended after Daubert to impose a reliability standard for all expert testimony. It discusses the implications of this requirement, the scope of review, and the conflict among state authorities about the applicable standard for admitting scientific evidence or expert testimony generally.

Imprecision in the Evaluation of Workers’ Compensation Psychological Injury Claims

Abstract Psychological conditions with severe symptoms can result in considerable impairment in functioning, and psychological disability claims, also called behavioral health disability, have increased during the past two decades. A review of states’ workers’ compensation (WC) systems shows no overlap between systems; that is, all states and federal WC systems have unique terminology, rules, and laws. In order to thoroughly evaluate the individual, evaluators must use a biopsychosocial approach that combines aspects of biological, psychological, and psychosocial issues. Studies consistently demonstrate a high degree of comorbidity between physical and psychological conditions, but frequently only the former are identified and treated. Current disability systems use byzantine definitions of disability and require professional opinions and documentation that do not comport with current psychological standards of care, introducing imprecision. Many issues relating to WC terminology and laws can be addressed if the Daubert standard is incorporated into any amendment of WC state and federal laws. The Daubert standard requires that currently accepted scientific methods be used when a professional offers testimony as an expert or is submitting professional treatment records (eg, in a WC determination). Compliance with the Daubert standard requires more consistent, objective professional documentation and testimony to ensure even-handed decisions that align with standards of psychological care. One observer has suggested that the Daubert standard is a mechanism by which junk science is kept out of legal proceedings.

Adversarial bias, litigation, and the Daubert test: An economic approach

The last few decades have seen a dramatic shift in the admissibility of expert testimony in American courtrooms from a laissez-faire approach to a strict standard for admissibility, often called the Daubert test. The implicit rationale behind such a stringent standard for admissibility is the trier of fact's vulnerability to adversarial bias, which many legal scholars and practitioners assume to be rampant. Employing a standard litigation model in the literature, I demonstrate that client–expert relationships may not always exhibit adversarial bias and that a litigant may voluntarily present neutral expert testimony under certain situations. I also show that a litigant is more likely to deploy hired guns if the litigation environment is more favorable to his cause. In particular, the burden of proof assignment and the court's prior belief are shown to influence adversarial bias.

Adversarial Bias, Litigation, and the Daubert Test: An Economic Approach

The last few decades have seen a dramatic shift in the admissibility of expert testimony in American courtrooms from a laissez-faire approach to a strict standard for admissibility, often called the Daubert test. The implicit rationale behind such a stringent standard for admissibility is the trier of fact's vulnerability to adversarial bias, which many legal scholars and practitioners assume to be rampant. Employing a standard litigation model in the literature, I demonstrate that client-expert relationships may not always exhibit adversarial bias and that a litigant may voluntarily present neutral expert testimony under certain situations. I also show that a litigant is more likely to deploy hired guns if the litigation environment is more favorable to his cause. In particular, the burden of proof assignment and the court's prior belief are shown to influence adversarial bias.

Ethical Challenges for the Medical Expert Witness.

Medical expert witnesses are ethically and legally obligated to provide honest testimony that meets the standards of the Daubert test.

Meeting a Forensic Podiatry Admissibility Challenge: A Daubert Case Study

This article is an introduction to the United States Supreme Court's standard of admissibility of forensic evidence and testimony at trial, known as the Daubert standard, with emphasis on how this standard applies to the field of forensic podiatry. The author, a forensic podiatrist, provided law enforcement with evidence tying a bloody sock-clad footprint found at the scene of a homicide to the suspect. In 2014, the author testified at a pretrial hearing, known as "a Daubert hearing," to address the admissibility of this evidence in court. This was the first instance of forensic podiatry being the primary subject of a Daubert hearing. The hearing resulted in the court ordering this evidence admissible. The expert's testimony contributed to the suspect's conviction. This article serves as a reference for forensic podiatrists and experts in similar fields that involve impression evidence, providing evidentiary standards and their impact on expert evidence and testimony.

The First Use of Postmortem 3D Computed Tomography Images as Evidence in U.S. Criminal Courts: A Report of Four Cases

Computed tomography (CT) is an imaging technique that has assumed an increasingly important role in clinical medicine since its invention in 1972 and has been admissible as evidence in court for many years. A recently introduced scientific application of CT, enabled by major advances in high-resolution imaging, postmortem CT (PMCT) allows unprecedented three-dimensional (3D) visualization of the whole body after death. As a novel scientific tool, PMCT may be subject to scrutiny for admissibility in court under Federal Rule of Evidence 702 and the Daubert standard. We present four cases of criminal prosecution for vehicular manslaughter where PMCT, including images generated with 3D reconstruction techniques, was admitted as evidence to demonstrate victim injuries to the jury in 2012. The use of PMCT for demonstrative proposes in court enabled the triers of fact to better understand and visualize injuries allegedly caused by the accused. Not only is PMCT a useful forensic tool, but it may also provide powerful and easily comprehensible visual evidence before a judge or jury. These cases may be used as precedent for future testimony in U.S. courts.