Evidence Commons^™

Evidence, Marc T. Treadwell

Mercer Law Review

Previous survey articles have discussed the need for precise objections to preserve an issue for appeal. Sometimes, however, even the most precise objection may not be sufficient. In Garner v. Victory Express, Inc., plaintiff objected to defendant's counsel's comment during closing argument on the lack of any evidence indicating that defendant was unsafe or careless. Apparently, defense counsel was referring to the absence of evidence of prior negligence on the part of defendant's driver. The trial court overruled this objection. Plaintiff argued that because he was precluded from proving defendant's negligence by his prior driving record or from proving …

Response: Exaggerated And Misleading Reports Of The Death Of Conditional Relevance, Peter Tillers

Michigan Law Review

In 1980 the late Professor Vaughn C. Ball of the University of Georgia published an article called The Myth of Conditional Relevancy. Ball's article is widely admired. One well-known evidence scholar, Ronald J. Allen, liked Ball's article so much that he borrowed its title word for word. Although the extent of Allen's enthusiasm for Ball's analysis may be unmatched, a good number of students of evidence - including this writer - have said that Ball's analysis of conditional relevance is both original and important. Richard Friedman, by contrast, cannot be counted as one of Ball's more ardent admirers. Although Friedman …

Conditional Probative Value: Neoclassicism Without Myth, Richard D. Friedman

Articles

The concept of conditional relevance is an essential aspect of the classical model of evidentiary law. Some of the great scholars of evidence have endorsed and shaped it.1 Under Federal Rule of Evidence 104(b) it plays a crucial role in the division of responsibility between judge and jury,2 as well as in the application of the personal knowledge3 and authentication 4 requirements. And the Supreme Court has applied it with great force.5 In recent years, though, the concept has come under attack from several notable scholars. The late Vaughn Ball led the assault, calling the concept a "myth."'6 Peter Tillers, …

Evidence—New Federal Standard For Admission Of Scientific Evidence. Daubert V. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786 (1993)., Ed Koon

University of Arkansas at Little Rock Law Review

No abstract provided.

Maryland's Adoption Of A Code Of Evidence, Lynn Mclain

All Faculty Scholarship

This short paper written just after the adoption of the Maryland Rules of Evidence explains the rules and the process it took to adapt the Federal Rules of Evidence for use in Maryland.

Factors For Reasonable Suspicion: When Black And Poor Means Stopped And Frisked, David A. Harris

Indiana Law Journal

No abstract provided.

Technology Comes To The Courtroom, And . . ., Fredric I. Lederer

Faculty Publications

No abstract provided.

Cart V. Marcum: The Discovery Rule As An Exception To The Statute Of Limitations In West Virginia, James R. Leach

West Virginia Law Review

No abstract provided.

Comment: Theory And Practice In Dna Fingerprinting, Richard O. Lempert

Articles

Throughout her useful paper on DNA identification, Professor Roeder properly attends to both theory and practice. Thus she acknowledges the theoretical soundness of certain criticisms that have been made of the standard paradigm used to evaluate DNA random match probabilities but argues that in practice these criticisms matter little. I am thinking here of the arguments that those cautioning against overweighing DNA evidence have made regarding the undeniable existence of population substructure and its potential implications for independence assumptions supporting the application of the product rule and for the use of convenience samples, such as data garnered from no more …

Out Of The Twilight Zone: The Implications Of Daubert V. Merrill Dow Pharmaceuticals, Inc., Diana K. Sheiness

Washington Law Review

In Daubert v. Merrell Dow Pharmaceuticals, Inc., the United States Supreme Court held that the Federal Rules of Evidence had not implicitly incorporated the general acceptance, or Frye, test for scientific evidence. Instead, the Court interpreted Rule 702 to mean that judges should admit challenged scientific testimony only after determining that its underlying method or theory is scientifically valid. This Note argues that the essence of the Daubert decision is that judges must ascertain whether or not the studies underlying proffered testimony have been performed in accordance with sound scientific principles. The Note analyzes several cases to illustrate appropriate and …

Experts, Liars, And Guns For Hire: A Different Perspective On The Qualification Of Technical Expert Witnesses, Christopher P. Murphy

Indiana Law Journal

No abstract provided.

On The Relevance Of The Admissibility Of Scientific Evidence: Tort System Outcomes Are Principally Determined By Lawyers’ Rates Of Return, Lester Brickman

Cardozo Law Review

The attention generated by Daubert v. Merrell Dow Pharmaceuticals, Inc. reflects the perceived importance of the issue of the admissibility of scientific evidence in tort litigation. In products liability litigation, whether claimants prevail often depends upon expert testimony presented on the issue of causation. Unless a claimant is able to have the expert's testimony admitted, there will be little or no chance of prevailing. Thus, though it is disputed whether Daubert will extend or contract tort liability, it is undisputed that its importance lies in its impact on the scope of tort liability.

Daubert: Interpreting The Federal Rules Of Evidence, Paul C. Giannelli

Cardozo Law Review

In 1992 Judge Becker and Professor Orenstein referred to the Frye issue - the admissibility of novel scientific evidence-as the "most controversial and important unresolved question" in the Federal Rules of Evidence. Indeed, during the prior decade the federal courts had battled over the issue, as had their state counterparts. Similarly, text writers and law review commentators vigorously disagreed about the proper standard for admitting scientific evidence. While one ABA report on the Federal Rules explored the Frye issue and concluded that it "is not clear that any standard would produce agreement at the moment," another report cited it as …

The Meaning Of Daubert And What That Means For Forensic Science, Randolph N. Jonakait

Cardozo Law Review

Daubert's effect on forensic science is unclear because the opinion is unclear. The Daubert Court did start blazing a useful path by stating that before scientific testimony is admitted, the trial court must be convinced that "the reasoning or methodology underlying the testimony is scientifically valid and ... that [the] reasoning or methodology properly can be applied to the facts in issue." But the Court's trailblazing was incomplete and often misleading.

Some Implications Of Daubert And Its Potential For Misuse: Misapplication To Environmental Tort Cases And Abuse Of Rule 706(A) Court-Appointed Experts, Ellen Relkin

Cardozo Law Review

This Commentary will address an array of issues underlying and emerging from the disputes in Daubert v. Merrell Dow Pharmaceuticals, Inc., and its inevitable progeny, from a practitioner's perspective representing plaintiffs in toxic tort litigation. It is intended to provide real examples that debunk the quaint but unrealistic notion that science is pure and insulated from economics and politics, the propagandized suggestion that it is the plaintiff's expert who promotes "fringe" or "junk" science, and the belief that epidemiology is the sine qua non of proving causation of a disease. It will also address the potential perils of the …

Assuming Facts Not In Evidence: A Response To Russell M. Coombs, Reforming New Jersey Evidence Law On Fresh Complaint Of Rape, Sherry F. Colb

Cornell Law Faculty Publications

No abstract provided.

The Admissibility Of Dna Evidence In Washington After State V. Cauthron, Elizabeth A. Allen

Washington Law Review

In State v. Cauthron, the Washington Supreme Court issued its first opinion concerning forensic DNA evidence. The court clearly held that the principles underlying DNA evidence and the restricted fragment length polymorphism (RFLP) method of DNA typing are generally accepted in the scientific community and are therefore admissible under the Frye test. The court refused to find that the trial court had properly admitted DNA evidence, however, because testimony that the suspect's DNA "matched" the perpetrator's was not supported by probability statistics. This Note demonstrates that the court was unclear in its discussion of when probability statistics meet the Frye …

Stretching The "Terry" Doctrine To The Search For Evidence Of Crime: Canine Sniffs, State Constitutions, And The Reasonable Suspicion Standard, Kenneth L. Pollack

Vanderbilt Law Review

The Fourth Amendment, protects an individual's interest in freedom from unreasonable government intrusions into personal privacy. When a court finds an investigative technique to be a search within the Amendment's meaning, it effectively concludes that Fourth Amendment protection should apply. If the government activity constitutes a search, that activity must be reasonable. If the activity does not amount to a search, however, the government enjoys virtual freedom to conduct that activity as unreasonably as it pleases. For pure investigatory searches, the United States Supreme Court has found that the probable cause requirement strikes the proper balance in defining reasonableness. Unlike …

Table Of Contents - Cardozo Law Review, Volume 15, Issues 6-7

Cardozo Law Review

No abstract provided.

Daubert V. Merrell Dow Pharmaceuticals, Inc.: Redefining The Bases For Admissibility Of Expert Scientific Testimony, Clifton T. Hutchinson, Danny S. Ashby

Cardozo Law Review

Daubert v. Merrell Dow Pharmaceuticals, Inc. is not only, or even primarily, a case about the viability of Frye v. United States and "general acceptance" as the criterion for evaluating expert testimony. Principally, it is a case about the preconditions of Federal Rule of Evidence 702, the sole provision in the Federal Rules that authorizes the use of expert testimony. The question as framed by petitioners in the course of argument was whether trial courts may screen scientific expert testimony under any real test. The Supreme Court answered this question strongly in the affirmative.

Petitioners' recurring theme was that Rule …

Taking Daubert’S “Focus” Seriously: The Methodology/Conclusion Distinction, Kenneth J. Chesebro

Cardozo Law Review

Last June's United States Supreme Court decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., rejected the Frye "general acceptance" test for scientific evidence, and went on to make "some general observations" about proper admissibility analysis under Federal Rule of Evidence 702. Daubert was the Court's first decision squarely addressing the expert testimony provisions of the Federal Rules of Evidence, and United States Law Week called Daubert "probably the most important procedural case of the term."

Should Federal Evidence Rules Trump State Tort Policy? The Federalism Values Daubert Ignored, Michael H. Gottesman

Cardozo Law Review

I want to explore issues that the Supreme Court should have addressed in Daubert but did not. The Court decided that Rule 702 of the Federal Rules of Evidence ("FRE") assigns a "gatekeeping" function to federal trial judges, who are to exclude expert scientific opinions that do not meet a standard of "reliability" vaguely sketched out in the Court's opinion.

The Daubert case involved exclusively state substantive law issues and was in federal court only because the defendant removed it from state court on the basis of diversity of citizenship. The Court held the gatekeeping function applicable in diversity actions, …

The Impact Of Daubert On The Admissibility Of Scientific Evidence: The Supreme Court Catches Up With A Decade Of Jurisprudence, Arvin Maskin

Cardozo Law Review

Over the past several years a host of new civil damage theories has emerged, notably in the mass tort area. These include claims for increased risk of disease, fear of disease, hedonic damages, immunotoxicity, and medical surveillance. In the great majority of these cases, the dispositive issue reduces to causation, which invariably turns upon scientific evidence. Moreover, the stakes in these cases have greatly escalated. For example, the $180 million settlement in the Agent Orange case seemed like a lot of money in 1984, until several years later when the Dalkon Shield litigation, which involved the sale of a single …

Check Your Crystal Ball At The Courthouse Door, Please: Exploring The Past, Understanding The Present, And Worrying About The Future Of Scientific Evidence, David L. Faigman, Elise Porter, Michael J. Saks

Cardozo Law Review

Since the earliest days of the use of expert witnesses, judges (and more recently legislatures) have struggled to design the juridical intersection where law and science cross paths. The effort has not met with notable success. This situation could be changing, however. Last term, in Daubert v. Merrell Dow Pharmaceuticals, Inc., the Supreme Court adopted a novel approach to the age-old problem of scientific evidence. The -Court determined that the Federal Rules of Evidence require scientific evidence to be scientifically valid before it enters the courtroom. The Court has served notice that experts should trade in their crystal balls …

Conflict Resolution In The Courts: The Role Of Science, Anthony Z. Roisman

Cardozo Law Review

This Article is a philosophical examination of an issue that now engages many lawyers and scientists-the proper role of science in courtroom litigation. More specifically, the issue is this: In cases where expert testimony is useful to lay jurors in resolving factual issues, what is the proper role of a judge in restricting what sorts of experts can testify and what they can say?

The Supreme Court’S View Of Science: Has Daubert Exorcised The Certainty Demon?, Bert Black

Cardozo Law Review

The Supreme Court's mandate in Daubert that experts who give testimony based on science must confine themselves to valid scientific knowledge seems tautologically obvious, and hardly an issue requiring the attention of the nation's nine highest judges. The debate that led to Daubert was generated, however, by opponents of judicial screening who argued that holding experts to scientific standards somehow imposes an undue burden of proof on plaintiffs, especially in toxic tort cases - and the Supreme Court's decision has not put the issue completely to rest. Science, according to this "relaxed standards" argument, demands certainty far beyond the law's …

Daubert V. Merrell Dow Pharmaceuticals, Inc.: Epistemiology And Legal Process, Margaret G. Farrell

Cardozo Law Review

Justice Blackmun's majority opinion in Daubert v. Merrell Dow Pharmaceuticals, Inc. acknowledges that law and science have different goals, but it fails to recognize the implications of those differences for legal process. Recent increases in the scientifically-based claims brought in the federal courts, and in the size and complexity of the litigation in which such claims are made, have raised the stakes in the debate. At the same time, scientific concepts of relativity, uncertainty, and multiple causation are at odds with simple, legal notions about fact-finding and cause and effect. This disparity between legal and scientific understandings over the admission …

Dna And Daubert, Barry C. Scheck

Cardozo Law Review

The most intriguing aspect of Daubert v. Merrell Dow Pharmaceuticals, Inc. is that the Supreme Court never applied its new analytic framework for the admissibility of scientific evidence to the facts of the case. Either the deviltry, or the genius, of the Daubert decision lies in the details.

Impeachment By Conviction Evidence: Judicial Discretion And The Politics Of Rule 609, Victor Gold

Cardozo Law Review

No provision of the Federal Rules of Evidence has sparked more controversy than Rule 609, which deals with the admissibility of convictions to impeach a witness. When first proposed, the provision was the subject of fierce debate, sparking repeated revision during its drafting and while it was under consideration by Congress. Ultimately, no one side in this legislative battle prevailed entirely; the Rule strikes a compromise between sharply conflicting policies. The text of Rule 609, incorporating no less than three balancing tests, two references to fairness, one to justice, and several other undefined terms, leaves the task of resolving the …

After Daubert: Going Forward With Lessons From The Past, Marc S. Klein

Cardozo Law Review

Ground zero in the ongoing battle over scientific evidence in toxic tort cases has clearly shifted in light of Daubert v. Merrell Dow Pharmaceuticals, Inc. In that case, the Supreme Court settled at least two profound issues. One has immediate practical consequences, the other has important philosophical implications.