Thursday, June 21, 2007

Sanchez: A steel cage Daubhert/Kumho Tire match

In Justice Scalia's memorable phrase, a judge confronted with a novel form of scientific evidence must "choose among reasonable means of excluding expertise that is fausse and science that is junky." Kumho Tire Co. v. Carmichael, 526 U.S. 137, 158 (1999) (Scalia, J., concurring). The issue in United States v. Sanchez, __ M.J. ___, No. 06-0617/AR (C.A.A.F. June 21, 2007), is whether the military judge erred by allowing a doctor to testify about her conclusions that an alleged child-abuse victim's physical examination was consistent with sexual abuse. In a 4-1 opinion, CAAF said no. Both Judge Ryan's majority opinion and Chief Judge Effron's dissenting opinion are masterfully executed. They lay out their respective cases in compelling fashion. The majority opinion's focus is on the process. The military judge had discretion to decide whether the evidence was sufficiently reliable and she didn't abuse that discretion. The appellate court will therefore defer to her ruling. Chief Judge Effron's dissent is more concerned with the reliability of the expert's testimony itself rather than the process that the military judge used to evaluate it.

Each of these jurisprudential approaches has its advantages and disadvantages. The majority's is focused on the military judge --if she made a plausible call, she will be affirmed. Under this standard-of-review focused approach, two military judges trying the exact same case could both be upheld even if they made opposite rulings on the testimony's admissibility. The dissent's approach is more focused on the accused; did Specialist Sanchez receive a fair trial? Under this approach, there is only one right answer to the question of the testimony's admissibility.

Should scientific evidence be generally admissible, leaving it to the members to separate the junk from the science? Or should military judges rigorously protect the court-martial process from unproven forms of scientific quackery? To me, these questions have no obviously right answer. But a careful reading of both the Sanchez majority and dissent will spark useful thoughts about these dichotomies.

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