School of Government Professor Jessie Smith has drafted a new chapter on Expert Testimony for the NC Superior Court Judge’s Benchbook. I’ve already heard one judge say from the bench that he had it open as he was considering a 702 challenge to expert testimony. Because this is a resource that judges look to, defenders should be familiar with it when preparing for 702/Daubert hearings regarding expert testimony.
Professor Smith references the President’s Council of Advisors on Science and Technology report, Forensic Science in the Courts: Ensuring Scientific Validity of Feature Comparison Methods, (hereinafter, PCAST Report) (available for free download here). The chapter uses the PCAST Report and other resources to note areas where there are questions about the reliability of certain types of forensic evidence. I have posted about the 2016 PCAST Report here, and I hope its being referenced in the Benchbook will lead to judges and other court actors taking a look at that landmark report on forensic evidence.
A significant portion of the chapter looks at each type of forensic evidence and summarizes the existing case law and mentions additional relevant considerations. Other sections of the chapter that defenders will want to take note of are the section on statements and terminology that the PCAST Report says are not scientifically valid (p. 54), the section on whether judges declaring a witness to be an expert in the presence of the jury inadvertently puts the court’s stamp of authority on a witness’s opinion (p. 22), and the discussion on best practices regarding the procedure for holding a 702/Daubert hearing (p. 21-22).