Are rules of evidence tilted in the prosecution's favor? One of the unfortunate truths in criminal litigation is that trial courts frequently admit testimony from the government's experts and exclude the defendant's proposed expert testimony. Almost ten years ago, Professor D. Michael Risinger wrote that he feared that the criminal defendant would not be protected from conviction by the exclusion of "undependable expert testimony" because "prosecution [expert] witnesses almost always allowed to testify," yet the defendant's proffered expert testimony was, and still is, "rejected in a majority of cases." Professor Risinger's article surveyed weaker government experts who had been allowed through the trial courts' gates relative to the defendant's experts that were kept out. Most prophetically, Professor Risinger observed that while defense experts, at that time, were often not permitted to testify regarding eyewitness testimony, police officers and other law enforcement officials testified "concerning the general way criminal schemes and enterprises operate." D. Michael Risinger, Navigating Expert Reliability: Are Criminal Standards of Certainty Being Left on the Dock? 64 ALB. L. REV. 99 (2000) (collecting statistics about reported post-Daubert cases including in federal criminal cases). Professor Risinger noted that the government typically survived challenges to its expert testimony and the criminal defendant's expert testimony was excluded as much as 66% of the time. Id. at 109-110.
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