David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
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This paper reconceptualizes the Daubert admissibility regime using the "evidence-based" metaphor. Although contemporary society is pervaded by calls for such things as medicine, policy, corrections, and crime prevention to be "evidence-based" and evidence is firmly associated with law, there has been little application of this notion in law and little recognition of the homology between evidence-based medicine and the Daubert inquiry. The paper argues that the Daubert inquiry may be conceived as a demand for "evidence about evidence," or "evidence-based evidence." It then uses the recent controversy over the admissibility of latent print (fingerprint) evidence to illustrate this notion. It shows that proponents of latent print evidence have had difficulty producing evidence about the reliability (or accuracy) of latent print evidence. Instead, trial courts have tended to find latent print admissible based on evidence that does not pertain directly to the accuracy of latent print evidence. Therefore, latent print evidence, as yet, is not "evidence-based evidence." Finally, the paper suggests that this state of affairs may explain the exclusion of latent print evidence in one recent case.
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