Law Commons^™

Toward A More Apparent Approach To Considering The Admission Of Expert Testimony, Thomas D. Schroeder

Notre Dame Law Review

This Article highlights lingering confusion in the caselaw as to the proper standard for the trial court’s discharge of its gatekeeping role for the admission of expert testimony. The Article urges correction of the faulty application of Daubert’s admonition as to “shaky but admissible” evidence as a substitute for proper discharge of the trial court’s gatekeeper function under Rule 104(a). The Article concludes with several suggestions for trial and appellate courts to consider for better decisionmaking in discharging their duty to apply Rule 104(a)’s preponderance standard to the elements of Rule 702.

Evidence Without Rules, Bennett Capers

Notre Dame Law Review

Much of what we tell ourselves about the Rules of Evidence—that they serve as an all-seeing gatekeeper, checking evidence for relevance and trustworthiness, screening it for unfair prejudice—is simply wrong. In courtrooms every day, fact finders rely on “evidence”—for example, a style of dress, the presence of family members in the gallery, and of course race—that rarely passes as evidence in the formal sense, and thus breezes past evidentiary gatekeepers unseen and unchecked. This Article calls much needed attention to this other evidence and demonstrates that such unregulated evidence matters. Jurors use this other evidence to decide whether to find …

The Promises And Perils Of Evidence-Based Corrections, Cecelia Klingele

Notre Dame Law Review

Public beliefs about the best way to respond to crime change over time, and have been doing so at a rapid pace in recent years. After more than forty years of ever more severe penal policies, the punitive sentiment that fueled the growth of mass incarceration in the United States appears to be softening. Across the country, prison growth has slowed and, in some places, has even reversed. Many new laws and policies have enabled this change. The most prominent of these implement or reflect what have been called “evidence-based practices” designed to reduce prison populations and their associated fiscal …

Dna And Distrust, Kerry Abrams, Brandon L. Garrett

Notre Dame Law Review

Over the past three decades, government regulation and funding of DNA testing has reshaped the use of genetic evidence across various fields, including criminal law, family law, and employment law. Courts have struggled with questions of when and whether to treat genetic evidence as implicating individual rights, policy trade-offs, or federalism problems. We identify two modes of genetic testing: identification testing, used to establish a person’s identity, and predictive testing, which seeks to predict outcomes for a person. Judges and lawmakers have often drawn a bright line at predictive testing, while allowing uninhibited identification testing. The U.S. Supreme Court in …

We The People: Juries, Not Judges, Should Be The Gatekeepers Of Expert Evidence, Krista M. Pikus

Notre Dame Law Review

This Note urges restoration of the proper balance of power between judges and juries regarding expert evidence. Our justice system has steadily moved away from letting juries decide important questions of fact and toward putting the decisionmaking power into the hands of judges. The recent developments in evidence law, requiring judges to act as the “gatekeepers” of expert evidence, present significant obstacles for plaintiffs attempting to get cases to a jury. This newer standard in expert evidence is a violation of the foundational precept in American jurisprudence that the people should be the sovereign, not the judge.

Is Expert Evidence Really Different?, Frederick Schauer, Barbara A. Spellman

Notre Dame Law Review

The problem with expert evidence is not the inappropriateness of the Daubert approach. The narrow focus on Daubert is misplaced. The real problem is with the more deeply entrenched view that expert evidence should be excluded under circumstances in which analogous non-expert evidence would be admitted. Daubert embodies the distinction between expert and non-expert evidence, but it is that very distinction, and not just Daubert, that is the problem. Daubert has indeed transformed modern evidence law, but perhaps it has awakened us to the need for a more profound transformation, one in which the very foundations of treating expert …

The Misbegotten Judicial Resistance To The Daubert Revolution, David E. Bernstein

Notre Dame Law Review

This Article reviews the history of the evolution of the rules for the admissibility of expert testimony since the 1980s, the revolutionary nature of what ultimately emerged, and the consistent efforts by recalcitrant judges to stop or roll back the changes, even after Rule 702 was amended to explicitly incorporate a strict interpretation of those changes.

Part I reviews the law of expert testimony through the Supreme Court’s Daubert decision. Critics had charged for decades that the adversarial system was a failure with regard to expert testimony. Parties to litigation, they argued, often presented expert testimony of dubious validity because …