Repeating, Yet Evading Review: Admiting Reliable Expert Testimony in Criminal Cases Still Depends upon Who is Asking

Abstract

A severe prejudice to the criminally accused persists today in some trial courts’ analyses under the helpfulness prong, the often overlooked part of the test to admit expert testimony. Removing the reliability prong from the discussion, this article focuses instead on courts’ treatment of qualified experts employing reliable methods under the helpfulness prong. Despite the straight-forward articulation of helpfulness, one of the unfortunate truths in criminal litigation is that trial courts frequently admit testimony from the government’s experts and exclude the defendant’s proposed expert testimony. This article explores the language and reasoning articulated by some trial courts in reaching the paradoxical admissibility determinations of experts with equally reliable methodologies. This article profiles witness identification expert testimony typically offered by the defendant as compared to expert testimony from law enforcement witnesses for the government. This article then describes the way in which the disparate admissibility determinations by the trial court escape meaningful review and the possible avenues to a more fruitful appellate review.

Keywords: expert, expert testimony, criminal law, criminal procedure, trial, criminal justice, false identification, law enforcement, Daubert, helpfulness

JEL Classification: K1, K4, K14, K19, K40, K41, K49