Defining the 'Task at Hand': Non-Science Forensic Science after Kumho Tire V. Carmichael

Abstract

This article asserts that Kumho Tire v. Carmichael, 526 U.S. 137 (1999) stands for two important priciples: first, that the gatekeeping requirement of minimum threshold reliability pursuant to Federal Rule of Evidence 702 applies to all profferred expert testimony, not just to the explicit products of "science"; and second, that this threshold reliability must be evaluated in regard to the particular "task at hand", not globally in regard to the average dependability of a broadly defined area of expertise, which might be dependable in other contexts, but not in regard to the "task at hand". The first of these principles is explicit in the Kumho Tire opinion, and the second somewhat less obvious, but of central importance and potentially of even greater impact. The article explains in detail why the decision must be read as standing for the second principle, relying both on the text of the opinion and the notions of reliability which it embodies. It then goes on to examine what the effect of appropriate task-at-hand analysis would be on forensic science admissibility issues in criminal cases, illustrating its impact through an analysis of all the opinions on the admissibility of handwriting identification testimony since the decision of Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579 (1993).

Keywords: Kumho, Daubert, evidence, expert, criminal evidence, handwriting identification