The Case of the Sleeping Gatekeepers, or Bolstering Daubert

Over the past several years - really since the lead-up to the National Academy of Sciences 2009 study of forensics - Grits has been giving increasing thought to the failure of judicial gatekeepers to adequately vet dubious evidence from forensic analysts. The NAS clarified for the lay public for the first time that many common forensic methods have no basis in science, relying instead on subjective analyses. But the full implications of their findings are only beginning to become apparent.

The subject has been especially on my mind since we did a podcast segment in August discussing the lack of judicial gatekeeping when it comes to DNA mixture evidence. In the case we discussed, the trial court admitted two different analyses of the same DNA mixture that came to different conclusions, and told jurors to pick the one they preferred! The intermediate appellate court affirmed the conviction, but didn't evaluate the question of admissibility.

That seemed to me like such an abrogation of the gate keeping function, it's hard to understand what if anything labeled "forensic" Texas judges wouldn't admit into evidence? (I mean, there's dog-scent lineups, but we had to shame them into stopping those.)

Clearly I'm not the only one thinking about how to tighten up these lax gatekeeping mechanisms. In that vein, here are several new academic analyses approaching the question from different angles:

• Paul Giannelli, "Forensic Science: Daubert's Failure"
• Brandon Garrett, Gregory Mitchell, "The Proficiency of Experts"
• Edward Imwinkelried, "The Best Insurance Against Miscarriages of Justice Caused by Junk Science: An Admissibility Test That Is Scientifically and Legally Sound"

I already printed out Giannelli's piece; these get added to Grits' to-read stack.

RELATED: Why criminal court judges are poor forensic gatekeepers.

AND MORE: From Radley Balko.