97 N.C. L. Rev. 483 (2019)
Fire science, a field largely developed by lay “arson investigators,” police officers, or similar first responders untrained in chemistry and physics, has been historically dominated by unreliable methodology, demonstrably false conclusions, and concomitant miscarriages of justice. Fire investigators are neither subject to proficiency testing nor required to obtain more than a high school education. Perhaps surprisingly, courts have largely spared many of the now debunked tenets of fire investigation any serious scientific scrutiny in criminal arson cases. This Article contrasts the courts’ ongoing lax admissibility of unreliable fire-science evidence in criminal cases with their strict exclusion of the same flimsy evidence in civil cases, notwithstanding that both criminal and civil courts are required to operate under the same exclusionary rules for expert evidence.
Judges are capable of ensuring that the forensic science evidence they admit at trial is reliable in both criminal and civil proceedings. In addition, the law mandates that they do so. The Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals, Inc. demand the application of the same standards to vet the admissibility of expert evidence in criminal and civil cases. Moreover, Kumho Tire v. Carmichael expands that mandate to exclude capricious forensic evidence regardless of whether it is characterized as scientific or technical. Unfortunately, thirty-one states have failed to embraced the holding of Kumho Tire. As a result, litigants are not entitled to raise Daubert challenges to fire evidence that courts deem technical, rather than scientific, knowledge in the overwhelming majority of American jurisdictions.
The ongoing admission of flawed fire science in criminal litigation brings us back to the problem Daubert sought to address: the courts’ failure to exclude junk science in American trials. Criminal courts must follow their civil counterparts and rigorously enforce gatekeeping procedures when prosecutors proffer questionable forensic “science” evidence in order to secure a conviction. Moreover, criminal defense attorneys must invoke Daubert and challenge unreliable forensic science during the trial proceedings. As several courts have held, the failure to do so falls below the constitutional requirements that attend to effective advocacy.