The Unfinished Daubert Revolution

By David E. Bernstein
February 16, 2009

The American judiciary traditionally had a laissez-faire approach toward the admissibility of most categories of expert testimony. This approach ended in federal courts when the U.S. Supreme Court adopted a reliability test for the admissibility of expert testimony in a series of three decisions: Daubert v. Merrell Dow Pharmaceuticals, Inc., General Electric Co. v. Joiner, and Kumho Tire Co., Ltd., v. Carmichael. An amendment to Federal Rule of Evidence 702 in 2000 then codified a stringent interpretation of the “Daubert trilogy.” Many states also have adopted some version of the Daubert reliability test. Given that expert testimony is crucial to modern civil and criminal litigation, the emergence of the Daubert–702 reliability test for expert testimony is probably the most radical, sudden, and consequential change in the modern history of the law of evidence....