Document Type

Article

Publication Date

1-1999

Abstract

DNA evidence has transformed the proof of identity in criminal litigation, but it has also introduced daunting problems of statistical analysis into the process. In this Article, we analyze a problem related to DNA evidence that is likely to be of great and increasing significance in the near future. This is the problem of whether, and how, to present evidence that the suspect has been identified through a DNA database search. In our view, the two well-known reports on DNA evidence issued by the National Research Council ("NRC"), each of which has carried great authority with the American courts on various issues, have been badly mistaken in their analysis of this problem. Similar errors affect the analyses of scholars who have supported the NRC reports. We will also offer some reflections on the habits of mind, of both lawyers and statisticians, that may have led to this result. Finally, we will suggest an approach that legal decision-makers might take in general with respect to scientific and statistically-based evidence to avoid this kind of difficulty. This approach is significantly different from that which pervades the Supreme Court's decisions in Daubert v. Merrell Dow Pharmaceuticals, Inc. and its recent sequel, General Electric Co. v. Joiner, as well as their precursor, Frye v. United States. And the suggested approach sheds a helpful light on a case now pending before the Court, Carmichael v. Samyang Tire, Inc.

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