Evidence Commons^™

Developments In The Law Of Scientific Evidence: The Admissibility Of Polygraph Evidence, Sheila K. Hyatt

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Logic, Not Evidence, Supports A Change In Expert Testimony Standards: Why Evidentiary Standards Promulgated By The Supreme Court For Scientific Expert Testimony Are Inappropriate And Inefficient When Applied In Patent Infringement Suits, Claire R. Rollor

Journal of Business & Technology Law

No abstract provided.

Scientific Evidence In The Age Of Daubert: A Proposal For A Dual Standard Of Admissibility In Civil And Criminal Cases , William P. Haney Iii

Pepperdine Law Review

No abstract provided.

Reliable Science: Overcoming Public Doubts In The Climate Change Debate, Michelle S. Simon

Elisabeth Haub School of Law Faculty Publications

This article will consider the case for instituting a domestic agency that would evaluate the findings from Intergovernmental Panel on Climate Change (IPCC) assessments to improve the credibility and legitimacy of those claims and conclusions for multiple purposes. The proposed agency would consider the robustness of an assessment's conclusions by construing the evidence through the lens of Daubert rather than Frye. Part I will outline the public debate about climate science-what the debate is about and why it exists. Part II will examine the current role of the IPCC-what it is and why it has not been successful in legitimating …

Liar, Liar, Jury's The Trier? The Future Of Neuroscience-Based Credibility Assessment And The Court, John B. Meixner Jr.

Scholarly Works

Neuroscience-based credibility-assessment tests have recently become increasingly mainstream, purportedly able to determine whether an individual is lying to a certain set of questions (the Control Question Test) or whether an individual recognizes information that only a liable person would recognize (the Concealed Information Test). Courts have hesitated to admit these tests as evidence for two primary reasons. First, following the general standard that credibility assessment is a matter solely for the trier of fact, courts exclude the evidence because it impinges on the province of the jury. Second, because these methods have not been rigorously tested in realistic scenarios, courts …

Brain Scans As Evidence: Truths, Proofs, Lies, And Lessons, Owen D. Jones, Francis X. Shen

Vanderbilt Law School Faculty Publications

This contribution to the Brain Sciences in the Courtroom Symposium identifies and discusses issues important to admissibility determinations when courts confront brain-scan evidence. Through the vehicle of the landmark 2010 federal criminal trial U.S. v. Semrau (which considered, for the first time, the admissibility of brain scans for lie detection purposes) this article highlights critical evidentiary issues involving: 1) experimental design; 2) ecological and external validity; 3) subject compliance with researcher instructions; 4) false positives; and 5) drawing inferences about individuals from group data. The article’s lessons are broadly applicable to the new wave of neurolaw cases now being seen …

Forensic Science: Why No Research?, Paul C. Giannelli

Faculty Publications

The National Academy of Sciences ground-breaking report on forensic science – Strengthening Forensic Science in the United States: A Path Forward – raised numerous issues. One dominant theme that runs throughout the Report is the failure of some forensic science disciplines to comport with fundamental scientific principles – in particular, to support claims with empirical research. The Report observed that “some forensic science disciplines are supported by little rigorous systematic research to validate the discipline’s basic premises and techniques. There is no evident reason why such research cannot be conducted.”

The Report went on to identify fingerprint examinations, firearms (ballistics) …

Independent Judicial Research In The "Daubert" Age, Edward K. Cheng

Vanderbilt Law School Faculty Publications

The Supreme Court's Daubert trilogy places judges in the unenviable position of assessing the reliability of often unfamiliar and complex scientific expert testimony. Over the past decade, scholars have therefore explored various ways of helping judges with their new gatekeeping responsibilities. Unfortunately, the two dominant approaches, which focus on doctrinal tests and external assistance mechanisms, have been largely ineffective. This Article advocates for a neglected but important method for improving scientific decision making-independent judicial research. It argues that judges facing unfamiliar and complex scientific admissibility decisions can and should engage in independent library research to better educate themselves about the …

Proving Lost Profits Under Daubert: Five Questions Every Court Should Ask Before Admitting Expert Testimony, Robert M. Lloyd

University of Richmond Law Review

No abstract provided.

Believing In Products Liability: Reflections On Daubert, Doctrinal Evolution, And David Owen's "Products Liability Law", Richard L. Cupp

ExpressO

No abstract provided.

The Overlapping Magisteria Of Law And Science: When Litigation And Science Collide, William G. Childs

ExpressO

The Supreme Court’s 1993 decision in Daubert v. Merrell Dow Pharmaceuticals transformed courts’ evaluation of expert testimony. Many courts, applying Daubert, focus extensively on whether the purported expert’s methodology has been published in a peer-reviewed journal.

This focus on peer review results in two unintended consequences that have triggered criticism: litigation-driven scholarship and litigants taking discovery into the peer review process. Critics contend that litigation-driven scholarship is irredeemably biased and that peer review discovery is too often an effort to intimidate scholars from speaking on subjects of public concern.

In this Article, I explore these phenomena and the criticisms of …

Warping The Rules: How Some Courts Misapply Generic Evidentiary Rules To Exclude Polygraph Evidence, John C. Bush

Vanderbilt Law Review

Polygraph tests rely on the hypothesis that a subject's body yields physiologically different symptoms if he or she is lying.' When a polygraph test is administered, a mechanical apparatus records the subject's physiological changes, and the polygrapher conducting the examination interprets the data. The techniques for measuring physiological changes vary in their foci, which may include respiration, blood pressure, cardiovascular function, and skin resistance. The polygraph apparatus records changes to one or more of these foci, and a technician, or polygrapher, then analyzes the results to conclude whether the subject has been truthful.

Polygraph results factor into choices ranging from …

Dangerousness And Expertise Redux, Christopher Slobogin

ExpressO

Civil commitment, confinement under sexual predator laws, and many capital and noncapital sentences depend upon proof of a propensity toward violence. This article discusses the current state of prediction science, in particular the advantages and disadvantages of clinical and actuarial prediction, and then analyzes how the rules of evidence should be interpreted in deciding whether opinions about propensity should be admissible. It concludes that dangerousness predictions that are not based on empirically-derived probability estimates should be excluded from the courtroom unless the defense decides otherwise. This conclusion is not bottomed on the usual concern courts and commentators raise about expert …

The Paranormal, Daubert, Dictionary Court, And A Futuristic Courtroom Drama, Joseph P. Baker

Florida A & M University Law Review

No abstract provided.

The Accuracy And Manipulability Of Lost Profits Damages Calculations: Should The Trier Of Fact Be "Reasonably Certain"?, Jonathan T. Tomlin, David Merrell

ExpressO

The accuracy and manipulability of calculations for lost profits damages are critical determinants of the ability of harmed parties to receive just compensation in a wide range of legal cases including antitrust, fraud, false advertising, intellectual property infringement, and breach of contract. They are also important determinants of the deterrent effects of the law. Using a sample of over 5,000 U.S. firms, we show that simple damages methods are capable of being substantially inaccurate. We also show that damages methods in general are highly susceptible to manipulation. In the absence of reasonable justifications for why particular data sets and methods …

Does Frye Or Daubert Matter? A Study Of Scientific Admissibility Standards, Edward K. Cheng, Albert Yoon

Vanderbilt Law School Faculty Publications

Nearly every treatment of scientific evidence begins with a faithful comparison between the Frye and Daubert standards. Since 1993, jurists and legal scholars have spiritedly debated which standard is preferable and whether particular states should adopt one standard or the other. These efforts beg the question: Does a state's choice of scientific admissibility standard matter? A growing number of scholars suspect that the answer is no. Under this theory, the import of the Supreme Court's Daubert decision was not in its doctrinal standard, but rather in the general consciousness it raised about the problems of unreliable scientific evidence. This Article …

Christian V. Gray: The Oklahoma Supreme Court Accepts The Daubert Standard, Debra W. Mccormick, Randon J. Grau

Oklahoma Law Review

No abstract provided.

Reliability And The Admissibility Of Experts, Dale A. Nance

Faculty Publications

Modern law on expert testimony insists, as a condition of admissibility, that the asserted expertise be determined by the trial judge to be reliable. Reliability is usually characterized as a dichotomous attribute of evidence, as if expertise were either reliable or unreliable. This article argues that making progress in the development of meaningful and appropriate restrictions on the admissibility of expert testimony requires that we abandon this conceptualization and understand the implications of endorsing a gradational notion of reliability in which evidence can be more or less reliable and in which a comparative assessment of reliability is prominent. Consistent with …

Can Fingerprints Lie?: Re-Weighing Fingerprint Evidence In Criminal Jury Trials, Tamara F. Lawson

Articles

This article discusses fingerprint evidence and its use in criminal jury trials. It is commonly thought that fingerprints "never lie"; however, this article reveals the little known fact that the "science" of fingerprint identification has never been empirically tested or proven to be reliable. It further exposes the seldom-discussed issue of fingerprint misidentification and latent print examiner error. The article explains the importance of fingerprint evidence and its extensive use in all phases of the criminal justice system. Specifically, the article plays out the dramatic courtroom scenario of incriminating fingerprints being found at a crime scene and matching the accused …

Daubert Asks The Right Questions: Now Appellate Courts Should Help Find The Right Answers, Christopher B. Mueller

Publications

No abstract provided.

Scientific Evidence And The Ethical Obligations Of Attorneys, Michael J. Saks

Cleveland State Law Review

This article considers the question: "What are the legal and ethical responsibilities of attorneys when offering scientific expert evidence to courts?" To a lesser extent it considers the responsibilities of attorneys to challenge such evidence when proffered and the ethical dimensions of the working relationship of lawyers and experts. Although the most prominent discussions of such issues have concerned so-called junk science in civil trials, the legal context upon which this article will focus is the criminal trial, where dubious science is more common, less questioned, and has even become institutionalized. The rules and practices of civil cases are provided …

Expert Testimony To Accommodate The Frye, Daubert, And Kumho Tire Standards Of Admissibility, Rhoda B. Billings

Oklahoma Law Review

No abstract provided.

Choice And Boundary Problems In Logerquist, Hummert, And Kumho Tire, David H. Kaye

Faculty Scholarship

This article, part of a symposium on the opinion of the Arizona Supreme Court in Logerquist v. McVey, questions that court’s rationales for refusing to apply heightened scrutiny to psychiatric testimony about the retrieval of repressed memories. It also challenges the court’s use of a “personal observations” exception to the heightened scrutiny standard of Frye v. United States. It proposes that a better solution to problems of scientific and expert evidence would be to adopt a sliding scale that attends to the use to which the evidence is put and the degree to which it has been shown to be …

Kumho Tire Co. V. Carmichael: The Supreme Court Follows Up On The Daubert Test, Martin A. Schwartz

Scholarly Works

No abstract provided.

Iola And Daubert, Leon D. Lazer

Touro Law Review

No abstract provided.

Iola And Daubert (Symposium: The Supreme Court And Local Government Law: The 1997-98 Term), Leon D. Lazer

Scholarly Works

No abstract provided.

The Admissibility Of Medical Testimony In Ohio: Daubert, Joiner And Ohio's Relevance-Reliability Standard, Gerald J. Todaro

Cleveland State Law Review

This article specifically examines the reliability standard imposed under Rule 702 of the Ohio Rules of Evidence and its application to medical expert testimony in Ohio. Section II reviews Daubert, its progeny, and Ohio law. This analysis reveals tension between Ohio's flexible relevance/reliability standard and the more exacting demands of Daubert. Section III examines the scientific basis of clinical diagnosis and treatment of illness and disease. This section argues that judges should take judicial notice of the conventional methodology underlying the clinical practice of medicine, and thus the preliminary question of reliability of medical expert testimony should rarely require a …

Daubert In The States, Paul C. Giannelli

Faculty Publications

No abstract provided.

The Proper Test For Assessing The Admissibility Of Nonscientific Expert Evidence Under Federal Rule Of Evidence 702, 1997 John M. Manos Writing Competition On Evidence , Peter B. Oh

Cleveland State Law Review

Courts have fashioned various common law standards to determine the admissibility of nonscientific expert evidence. This Article examines these different standards to evince the need for harmony. Part I of this article examines the admissibility tests for nonscientific expert evidence administered by federal courts before Federal Rule of Evidence 702. The first such test appears in Frye v. United States, which establishes only expert knowledge based on a method or principle that has gained sufficient "general acceptance" can be admitted. Part I concludes by discussing the problems that plague these different applied tests and beckon for a single standard. Part …

Text, Texts, Or Ad Hoc Determinations: Interpretation Of The Federal Rules Of Evidence, Randolph N. Jonakait

Articles & Chapters

No abstract provided.