Barbarians at the Gate: Military Rules of Evidence 702-705, Scientific Evidence, and the Military Judge's Gate Keeping Function under "Daubert v. Merrell Dow Pharmaceuticals, Inc."
JUDGE ADVOCATE GENERAL'S SCHOOL CHARLOTTESVILE VA
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This thesis examines the effect of the Supreme Courts holding in Daubert v. Merrell Dow Pharmaceuticals, Inc., on the treatment of scientific evidence under the Rules for Courts-Martial, the Military Rules of Evidence, and military appellate case law. The key focus is on the Supreme Courts imposition of an independent gate keeping function on the trial judge. An examination of the Rules for Courts-Martial shows that such a gate does not currently exist in military practice, leading to difficulties for both judge and counsel in handling scientific evidence. The thesis proposes a number of changes to the discovery process and pretrial motion practices to create a true procedural gate. A further examination of the existing evidentiary rules and appellate case law will show that the imposition of this independent duty on the military judge requires substantial changes to the way scientific evidence is evaluated and presented to the trier of fact. Finally, the thesis proposes an analytical framework that integrates the holdings of Daubert, current case law, and the proposed amendments to the Rules for Courts-Martial into a coherent procedural and substantive gate for the military judge to keep.
- Sociology and Law
- Military Forces and Organizations