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The Consensus Rule: A New Approach To Scientific Evidence, Edward K. Cheng
The Consensus Rule: A New Approach To Scientific Evidence, Edward K. Cheng
Vanderbilt Law School Faculty Publications
Founded on good intentions but unrealistic expectations, the dominant Daubert framework for handling expert and scientific evidence should be scrapped. Daubert asks judges and jurors to make substantively expert determinations, a task they are epistemically incompetent to perform as laypersons. As an alternative, this Article proposes a new framework for handling expert evidence. It draws from the social and philosophical literature on expertise and begins with a basic question: How can laypersons make intelligent decisions about expert topics? From there, it builds its evidentiary approach, which ultimately results in an inference rule focused on expert communities. Specifically, when dealing with …
The Science Of Gatekeeping: Using The Structure Of Scientific Inference To Draw The Line Between Admissibility And Weight In Expert Testimony, Christopher Slobogin, David Faigman, John Monahan
The Science Of Gatekeeping: Using The Structure Of Scientific Inference To Draw The Line Between Admissibility And Weight In Expert Testimony, Christopher Slobogin, David Faigman, John Monahan
Vanderbilt Law School Faculty Publications
Fundamental to all evidence rules is the division of responsibility between the judge, who determines the admissibility of evidence, and the jury, which gauges its weight. In most evidentiary contexts, such as those involving hearsay and character, threshold admissibility obligations are clear and relatively uncontroversial. The same is not true for scientific evidence. The complex nature of scientific inference, and in particular the challenges of reasoning from group data to individual cases, has bedeviled courts. As a result, courts vary considerably on how they define the judge's gatekeeping task under Federal Rule of Evidence 702 and its state equivalents.
This …
Experts, Mental States, And Acts, Christopher Slobogin
Experts, Mental States, And Acts, Christopher Slobogin
Vanderbilt Law School Faculty Publications
This article, written for a symposium on "Guilt v. Guiltiness: Are the Right Rules for Trying Factual Innocence Inevitably the Wrong Rules for Trying Culpability?," argues that the definition of expertise in the criminal justice system, derived in the federal courts and in most states from Daubert v. Merrell Dow Pharmaceuticals Co., should vary depending on whether the issue involved is past mental state or past conduct. While expert psychological testimony about past acts ought to be based on scientifically verifiable assertions, expert psychological testimony about subjective mental states relevant to criminal responsibility need not meet the same threshold. This …