Is the Expert Admissibility Game Fixed?: Judicial Gatekeeping of Fire and Arson Evidence

Abstract

Anecdotal evidence claims that in criminal cases, trial judges admit the prosecution's expert witnesses more readily than the defendants', and in civil cases the reverse is true; judges exclude plaintiffs' experts more often than civil defendants' experts. This occurs despite the fact that, with few exceptions, the same rules of admissibility apply to all parties and, in most jurisdictions, across criminal and civil cases. This article empirically tests this differential by reviewing judicial decisions to admit or exclude evidence holding the type of expert testimony constant, fire and arson evidence, across criminal and civil cases in the United States. The study examines the admissibility of fire and arson investigation experts in criminal and civil cases across all legal parties in fifty‐seven federal and state opinions in the United States. The findings offer empirical support of a bias in criminal cases and in civil cases which present expert witnesses at trial, and is less pronounced, but still evident, on appeal. Specifically, the role of the party that offers the evidence has a profound effect on whether arson evidence is admitted, even when factors around the judge's political affiliation, attorney experience, expert qualifications, and rules of evidence are taken into account.

Wrongful convictions and forensic science

“…Instead, the “function of forensic science should be to correct false theories developed by police as well as to support true theories” (Cole, 2012, p. 735; see also Cole & Thompson, 2013). This framework—thinking about forensic science as a system factor—supports the argument that the role other criminal justice actors play in the use of forensic science evidence should be addressed (see, e.g., Dioso‐Villa, 2016; Laurin, 2013; Oliva & Beety, 2017). As the story below illustrates, prosecutors may disregard or explain away properly produced exculpatory DNA testing results (Appleby & Kassin, 2016).…”

Scientific Disciplines and the Admissibility of Expert Evidence in Courts

“…Judges tend to be more receptive to evidence from criminal prosecutors than from civil plaintiffs (Dioso-Villa 2016), which is consistent with powerful litigants’ more general advantages in court (Galanter 1974). The regression model therefore includes a dichotomous measure that equals one for experts who represent plaintiffs or prosecutors and zero otherwise, a dichotomous measure that equals one for criminal cases and zero for civil cases, and a product term for the interaction of these two variables.…”

Science, Technology, Society, and Law

“…Forensic science turns out to be an area in which STS scholars have engaged this problem (e.g., Cole 2010, Dioso-Villa 2016, Mnookin 2008. In Risinger's (2007, p. 688) sympathetic reading, STS-influenced scholars discovered that many knowledge claims in the realm generally known as "forensic science" were "insupportable not merely in the same sense that .…”