March 19, 2015

Innocence Project argues that scientific evidence should not be admitted unless it follows scientific principles of testing and validation. 

Willkie is serving as counsel for the Innocence Project as amicus curiae in the lethal injection case from the Tenth Circuit currently before the United States Supreme Court, Richard E. Glossip, et al. v. Kevin J. Gross, et al. The petitioners in the case are challenging Oklahoma’s proposed three-drug lethal injection protocol, which they argue violates the Constitution’s Eighth Amendment prohibition against cruel and unusual punishment.  In particular, the petitioners argue that 500 milligrams of midazolam, the first part of the protocol, does not reliably produce the deep, comatose unconsciousness that is required to prevent intense pain and suffering caused by the other two drugs in the protocol.  In denying the petitioners’ motion for a preliminary injunction, the trial court credited the opinion of Oklahoma’s expert witness, who testified that 500 mg of midazolam would accomplish the intended comatose effect.  The state’s expert, however, based his opinion on consultation of, unsubstantiated anecdotes, and a misreading of the toxic dose listed in a material safety data sheet.  Had the state’s expert read the toxic dose correctly, he would have found that 500 milligrams would be barely one-tenth of a lethal dose.

The Innocence Project amicus brief focuses on the question of what makes relevant scientific evidence reliable, and therefore admissible, under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).  While Daubert requires that scientific evidence be “derived from the scientific method” and “supported by appropriate validation,” lower courts sometimes admit unscientific testimony, particularly in criminal cases.  The brief explains the scientific method and the principles of testing and validation that should support a lower court’s determination of reliability and admissibility of scientific evidence and expert testimony.  The brief goes on to argue that the district court abused its discretion by admitting patently unreliable scientific testimony.  The court’s decision could potentially impact countless cases where courts must determine whether expert scientific testimony is sufficiently reliable to be admitted into evidence.

The matter was handled by James Dugan, Zheyao Li, Shaimaa Hussein, Erich Almonte, and Ashley Moore. 

Related Practice Areas