Rulemaking possibilities: efforts of the united states judicial conference advisory committee on evidence rules to address the challenges to forensic expert testimony

• Author: Daniel J. Capra
• Pages: 34-42

FRONTIERS OF LAW IN CHINA

VOL. 13 MARCH 2018 NO. 1

DOI 10.3868/s050-007-018-0004-7

FOCUS

COMPARATIVE PERSPECTIVES ON EVIDENCE LAW : EAST AND WEST

RULEMAKING POSSIBILITIES: EFFORTS OF THE UNITED STATES JUDICIAL

CONFERENCE ADVISORY COMMITTEE ON EVIDENCE RULES TO ADDRESS THE

CHALLENGES TO FORENSIC EXPERT TESTIMONY

Daniel J. Capra

Abstract This piece is an echo to one of the main subjects of the Sixth International

Conference on Evidence Law and Forensic Science which is to determine what

evidentiary reforms are necessary for regulating forensic expert testimony, and how

those reforms might be implemented. In United States, the predominant way of

evidentiary reform is through rulemaking. As the Reporter of Judicial Conference

Advisory Committee on the Federal Rules of Evidence since 1996, the author, with a

pragmatic spirit throughout the article, examines such an effort at the federal level of

U.S. in six parts (levels), starting from the most general, abstract level till finishing with

the most detailed and substantive points. Part I begins with a brief introduction of the

hierarchies of evidentiary rulemaking authorities at the federal level of the United States,

various interested groups and their interesting interactions in the rulemaking process.

The author then shifts to the general topic of writing rules with a specific focus on the

level of detail that is to be provided in doing so; Part II further narrows down the

scrutiny into writing a rule on forensic expert testimony with an emphasis on the

necessity of making such a rule change to the current general standards of FRE; Part III

directly addresses the challenges of drafting a rule on forensic evidence in FRE,

including a comparation of various alternative drafting models; Part IV and Part V

respectively discusses the Reporter’s comments and the Justice Department’s concerns

over the drafted rules; and Part VI briefly discusses the feasibility and effectiveness of a

Best Practices Manual on forensic evidence in lieu of rulemaking.

Keywords forensics, rulemaking, reliability, expert

I. WRITING RULES ................................................................................................................. 35

II. WRITING A RULE ON FORENSIC EXPERT TESTIMONY ........................................................ 37

III. CHALLENGES OF DRAFTING A RULE ON FORENSIC EVIDENCE......................................... 39

IV. REPORTER COMMENTS..................................................................................................... 40

* Daniel J. Capra, J.D., School of Law, University of California, Berkeley, USA; Reed Professor, School

of Law, Fordham University, New York 10023, USA. Contact: dcapra@law.fordham.edu