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Legal Issues

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Discovery is the process where the prosecuting attorney provides defense counsel with an opportunity to view, copy, or test the evidence in the government’s possession.  The discovery process is governed by state statutes, rules of procedure, and case law.  The discovery process pertains to specific materials in the possession of the experts.  The process is not automatic, and the scope of disclosure of discovery materials varies from state to state and court to court.  The discovery process is not unilateral and imposes responsibilities upon the defense to disclose certain information to the prosecution.

Evidence and Admissibility
Evidence being placed in a bag

In general, admissibility is the legal concept that determines what evidence, both testimonial and physical, will be admitted by the court and the jury will be permitted to hear. Admissibility is determined by statute, rules of evidence, and case law. This aspect of admissibility relates solely to the admissibility of the science or subject matter at issue and not to the qualifications of the individual.

With respect to scientific evidence, three distinct “tests” or “standards” have evolved. They have become known by the case names from which they originated. The “Frye” test originally involved testing from a polygraph type of instrument. The Frye test was also referred to as the “general acceptance” standard since it required the methods and techniques to be generally acceptable within the relevant scientific community.

Subsequent to the Frye test was a case that resulted in a new standard being established by the courts. “Daubert” shifted the determining factor of admissibility away from the general acceptance of the relevant scientific community to the “gatekeeper” concept. Under Daubert the presiding judge would act as the gatekeeper and determine whether or not the proposed evidence was relevant, applicable to the case, and would be helpful to the jury.

Other hybrid states have either adopted legislation or rules of evidence that modify or alter in some way either the Frye or Daubert standards. The number of states that uses either the Frye or the Daubert standard fluctuates over time.

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