WHOSE FAULT?—DAUBERT, THE NAS REPORT, AND THE NOTION OF ERROR IN FORENSIC SCIENCE

The notion of “error” and “error rates” is central both to the Daubert opinion and to the recent NAS Report on the strengths and weaknesses of forensic science in the United States. I will not be attempting a full-scale examination of the concept of error in this paper, however, I believe there are some observations that can be made that may be helpful in domesticating in helpful ways the notion of error as it might apply to forensic science expertise. I conclude that we should work to improve diagnosticity for old processes, or to invent or adopt new ones with improved diagnosticity. But failing that, we must do research on (and cooperate with research on) the actual diagnosticity of current process, most of whose diagnosticity in general, and even more importantly, as to each subtask, and under the conditions of real practice is not currently known.