Relevancy is it relevant? 401

Clip – expert witness discussing cause of death vs. manner of death; fine as background information 9.7

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Clip expert witness discussing cause of death vs. manner of death; fine as background information

  • 9.7 – Defense: If D was confused, no intent to deceive. D expert to testify about memory & human ability to confuse. Ordinary people are likely to understand forgetting/mixing up things. This isn’t something that would help the jury

  • Opinions on Law & Ultimate Issues: 704 Expert may state opinion on ultimate issue (modern), but may not insert D in opinion.
    704 (b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether D did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for trier of fact alone. B added after Hinckley tried to assassinate the president and was acquitted on grounds of insanity.

  • 9.10 – Expert testifies that meth product purchases show intent to make it. He essentially testifies to the ultimate issue, but this is the question to be answered by the jury. The court quoted advisory co notes (p. 196 of supplement) abolition of the ultimate issue rule does not lower the bar so as to admit all opinions under 701 & 702, and 703, which provide ample assurances against admission of opinions which would merely tell the jury what result to reach. Expert here attempted to do the jury’s job for them – inadmissible.

  • Hygh v. Jacobs - Hygh’s surgeon said fracture was caused by a blunt instrument(officer’s flashlight). D’s law enforcement expert testified the cop used deadly physical force. Expert’s legal conclusions crossed: invaded jury’s role to decide & judge’s role to define deadly force.

  • Opinions on Credibility - Expert testimony is inadmissible on whether a witness testified truthfully bc that’s the jury’s job.

  • Batangan - Clinical psychologist with a specialty in sexually abused kids testified to his exam of girl, his experience with abused children in general, & then implied daughter was credible. This invaded the jury’s role to determine credibility. 704 permits opinion testimony regarding the ultimate issue, but not for the expert to inform the jury of the correct conclusion. Jury’s common knowledge usually allows for sufficient witness credibility assessment.

  • Opinions on Eyewitness Identification - Expert testimony may be appropriate even in areas within the understanding of the average juror, where the juror may make inappropriate inferences based on common knowledge.

  • Hines (1999) - Bank teller (white) ID’d robber (black). D expert eyewitness ID specialist testified about trouble with cross-racial IDs. Gov. argued it was unnecessary bc jury could determine ID credibility. Court ruled it could aid jury bc they would have a better understanding of science of eyewitness ID. Like in cases of battered women syndrome, expert provides info that may correct erroneous assumptions

    1. Proper Bases of Opinion Testimony: 703 facts or data that an expert bases an opinion/inference may be those perceived by or made known to the expert at or before the hearing. facts or data need not be admissible in evidence for opinion/inference to be admitted.

    1. Expert’s opinion may be based on facts: Perceived by or made known to expert at trial (705) OR before trial (raises hearsay issues) (703).

    2. In Re Melton - Experts don’t need first-hand knowledge; Psychiatrists may reasonably rely on the reports of fam members. Jury’s decision based on testimony of 2 psychiatric experts whose opinion rested entirely on hearsay - a report from his mom that he struck her. Gov. may not disclose hearsay accusation to the jury unless court determines that its probative value in assisting the jury substantially outweighs the prejudicial effect. The info about the family may not come in as substantive evidence; it may only be offered for the expert’s opinion
      - Advisory Co – this is what physicians/medical experts rely on to form opinions, but it doesn’t require their bases for opinion be admitted.
      - Note. 2000 amendment to 703 – “facts or data that are otherwise inadmissible must not be disclosed” – court didn’t have this sentence but followed it regardless and gave a limiting instruction to not consider mom’s comment outside of expert’s report. *Davis – nail in wall

    1. Assessing the Reliability of Expert Scientific Testimony

    1. Frye (1923) – expert opinion based on a scientific technique is inadmissible unless the technique is ”generally accepted” as reliable in the relevant scientific community. Court ruled that a systolic blood pressure deception test (precursor to polygraph) had not gained such standing and scientific recognition to justify admission of expert testimony deduced from its use.

    2. Daubert (1993) – To be admissible in federal trial, an expert opinion must be based on sound principles and valid deductions/ must be relevant (must be helpful and pertinent to issue at hand) & reliable (must establish testimony grows out of pre-litigation research/research subject to peer review). (overruled Frye –702 is broader).
      - Mother used bendictin when she was pregnant. Child has birth defects; tried to get in evidence of defects. “General acceptance” is not a necessary precondition to admit scientific evidence; FREs assign trial judge the task of ensuring expert testimony is reliable & relevant. Pertinent evidence based on scientifically valid principles will satisfy those demands. Not required that scientific testimony must be “known” to a certainty because arguably there are no certainties in science.
      Factors to determine whether expert testimony should or should not come in – *list is not exclusive, only illustrative and no one issue is determinative.

        • Can the theory be tested, and if it can, has that testing taken place?

        • What are its known or potential error rates?

        • Has it been described in scientific publications subject to peer review?

        • Is there an existence and maintenance of standards controlling the technique’s operation; and

        • Has it achieve some degree of general acceptance in relevant scientific community? (**carries a lot of weight)

    1. C.J. Rehnquist Dissent – I do not doubt that 702 gives to the judge some gate keeping responsibility, but I do not think it imposes them to become amateur scientists to perform that role.

    • Kumho answered dissent Q - everything Court said about scientific knowledge testimony applies equally to technical or specialized aspects of expert testimony

    1. Afterthoughts

    • Note: 702 amendment was added specifically in response to Daubert: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.”

    • Even though Daubert purports to be a liberal interpretation and the advisory committee comments that Daubert shows that the rejection of expert testimony is the exception rather than the rule, some commentary conjectures that Daubert actually raised the bar

    • Advisory Co notes p. 185: When a trial court applying this amendment rules that an expert’s testimony is reliable, this doesn’t mean that contradictory expert testimony is unreliable. Opinions don’t have to be proved correct, just reliable.

    • Llera Plaza (2002) Daubert Hearing Example: Judge Pollak thought finger print identification was insufficiently tested and reviewed, thus it failed to operate under uniformly accepted scientific standards. He held a Daubert hearing, but then ultimately concluded expert testimony in the area was admissible

    • Note - Daubert II – Judge Kozinski noted that judges are largely untrained in science and unmatched to determine experts proposed testimony, it is our daunting task to evaluate, but he does proceed to evaluate

    • Polygraph evidence under Daubert’s relevance-and-reliability analysis?

    1. United States v. Crumby (1995) – One approach, but not the most common is allowing evidence under limited circumstances: when (1) D provides sufficient notice to gov.; (2) opposing party has a reasonable opportunity to have its own polygraph administered; (3) it will be allowed to impeach/corroborate D’s testimony if D testifies & is impeached
      Notes 4 Main concerns with polygraphs: (1) aura of infallibility; (2) opinion regarding ultimate issue; (3) polygraphs infringe on jury’s role to determine credibility; (4) judicial resources will be unduly consumed
      Court looks to Daubert factors: testability (could be a problem with the control questions; *all the court discusses is the actual test procedure, not tests of the test); peer reviewed; error rates (the error is more likely to find an innocent person guilty so if it concludes innocence the error margin is very low; acceptance in scientific communities (the community the court looks to his polygraph examiners- BUT we would hardly expect them to be objective/critical observers)

        1. 9.14 – Canter (SDNY 2004) court denied polygraph evidence -similar to the prevalent court position. But then D wants to show his consciousness of innocence & have the examiner testify to the fact that he consented to take the test afer the examiner had told him about her high level of success. Concern: if everyone knows that polygraph evidence is inadmissible then go ahead and take it and then admit the fact that you consented. Court rejected evidence and said this whole thing has a bad odor to it. D could take the test in private & then if it shows he’s lying, no one knows about it, but if it shows he is telling the truth then they try to get it admitted. OR worse D knows the results are inadmissible so we take the test to show consent/consciousness of innocence

        2. Scheffer (1998) – D wants to offer evidence that he passed a lie detector test to show he didn’t use drugs. Military rules of evidence have a blanket ban on polygraph evidence looking back to Chambers (6th amendment compulsory process clause); Can denial of polygraph evidence violate the compulsory process? The Court holds (8-1) no right to compulsory process here; Chambers required the evidence to be crucial to the defense and reliable & polygraphs are not completely reliable. J. Thomas (majority) wrote that “the jury is the lie detector” and polygraph evidence will diminish the jury’s role in making credibility determinations (only 4 justices joined in this part and 4 other justices not concerns of reliability, but made it clear it is not jurisdictionally required to ban polygraph evidence outright).
          J. Stevens dissenting: (1) Jurors don’t blindly follow polygraph evidence and (2) Shows empirical studies suggesting 85-90% accuracy, even critical studies conclude that accuracy is 70%, we routinely admit far less reliable evidence;
          **Davis notes that polygraph evidence really goes to truthfulness and perhaps the court’s greatest concern is with this aspect more so than reliability

        3. A Hogwartz sorting hat would throw all of this up in the air - : )

    1. Assessing the Reliability of Non-Scientific Expertise

        1. Aftermath of Daubert, but before Kumho – forensic handwriting flunks Daubert, thus it is not science, then because it’s not science it need not pass Daubert test and a looser test applies under which it is admissible. Leads to people offering experts saying this really isn’t an area of scientific expertise to evade Daubert test. But then Kumho levels the playing field

          1. Kumho Tire Co (1999) – court says that everything from Daubert’s conclusion on scientific knowledge applies with equal force to expert testimony based on technical/specialized knowledge. Supreme Court affirmed exclusion of expert testimony on defective tire bc court must reliability & relevance of expert testimony for not only scientific knowledge but technical or other specialized knowledge as well, and may flexibly apply one or more of Daubert’s specific factors to determine the admissibility of a technical expert’s testimony based on its relevancy and reliability. *Standard doesn’t require the expert be correct, just reliable. Rationale: (1) The rule on its face makes no distinction bw scientific knowledge & technical/specialized knowledge; (2) Experts can formulate opinions based on hearsay and not firsthand knowledge; & (3) It would be difficult, if not impossible for a trial judge to distinguish between these different kinds of knowledge

        2. 9.15 Hedonic value of life - under Daubert factors, at least two factors – testing and rate of error are totally lacking, but do note the factors are not exclusive. The court added some other factors to the analysis, but ultimately excluded it.

        3. Clipsexual harassment lawsuit; expert testifying about Rape Trauma Syndrome. Defense argues his testimony won’t be helpful because basically every behavior fits under his RTS theory. Prosecutor could argue it is an area of expertise, the methodology is sound, and there is sufficient data, & it’s just background info – just the facts, will help the jury recognize that some people may not act immediately and in the time in between may act normally.
          **Davis compares this to child abuse cases – experts not proffering testimony that D abused child, but rather that it is possible that some parents do abuse their child – help understand battered child syndrome to explain that such a thing can happen.

        4. Kinney (SC of VT, 2000) - state called an expert on rape trauma victims. He defined rape trauma syndrome, explained the responses of rape victims to their attacker, typical patterns of reporting rapes, and rate of false reporting is very low. Ct held (1) Testimony of rape trauma syndrome & associated typical behaviors is admissible. It meets Daubert & will assist the jury’s evidence evaluation; but (2) testimony of false reporting rates is inadmissible, however D did not make any specific objection and it was not plain error so conviction affirmed.

        5. Two psychologists argue PTSD (post-traumatic stress disorder) and MPD (multiple personality disorder) are not generally accepted, thus experts have an affirmative ethical duty to refuse to give testimony that would not reasonably be expected to pass Daubert/Kumho scrutiny, even if opposing counsel doesn’t challenge its admissibility

    1. Alberico (1993) – finds a general acceptance in psychology of PTSD and found it admissible, but Rape Trauma Syndrome testimony is inadmissible bc it is not part of the specialized manual on mental disorders).
      Chauvin (2003) – finds PTSD, although widely accepted, not a reliable indicator thus expert testimony on it is inadmissible

        1. 9.16 separation violence – expert testifies that batterers tend to call and isolate their victims; recounting the basic facts of the case at hand. Court said it was really character evidence and it was improperly admitted. But remember under 404(B) character evidence can be admissible to show certain things, i.e. motive, overall plan or scheme and it might have fallen under that.
          Davis: you can have expert testimony on battered child syndrome, which was a phrase that medical doctors coined and experts testify that it does happen and when it does this is what you typically see, BUT when experts testify and define their characteristics specifically to D – courts say that goes too far

    1. Unit 2: Reliability Chapter 10 Authentication, Identification, and the “Best Evidence Rule”

                • Authentication & Identification: 901 - authentication analysis when documents, records, or other physical things are described in testimony/offered into evidence; analysis determines relevance; jury decides authenticity.

    1. (a) authentication/identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

    2. (b) Illustrations (not exhaustive) - examples of authentication/id conforming w rule:

    3. (1) Testimony of witness with knowledge that a matter is what it is claimed to be.

    4. (2) Non-expert opinion on handwriting based upon familiarity not acquired for purposes of the litigation.

    5. (3) Comparison by trier or expert witness with specimens, which have been authenticated.

    6. (4) Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.

    7. (5) Voice identification whether heard firsthand or through mechanical/electronic transmission/recording, by opinion based upon hearing voice at any time under circumstances connecting it w alleged speaker.

    8. (6) Telephone conversations by evidence that a call was made to the number assigned at the time by the phone co to a particular person or business, if (A) in the case of a person, circumstances, including self-identification, show person answering to be the one called, or (B) in the case of a business, call was made to a business & the conversation related to business reasonably transacted over the phone.

    9. (7) Public records or reports. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office is from the public office where items of this nature are kept.

    10. (8) Ancient documents or data compilation. Evidence that a document or data compilation, in any form, (A) is in such condition as to create no suspicion concerning its authenticity, (B) was in a place where it, if authentic, would likely be, and (C) has been in existence 20 years or more at the time it is offered.

    11. (9) Process or system. Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.

    12. (10) Methods provided by statute or rule. Any method of authentication or identification provided by Act of Congress or by other rules prescribed by the Supreme Court pursuant to statutory authority.

    1. Documents

    2. 10.1How can we go about showing that D is the one who actually signed and sent these forms.

    3. 901(b)(2) Nonexpert opinion on handwriting - a witness familiar with his handwriting (p. 306 rule bk - lay identification of handwriting may be acquired by seeing him write, exchanging correspondence, or by other means).

    4. 901(b)(2) Comparison by trier or expert witness – show it to jurors or have expert make connection

    5. 901(b)(4) Distinctive characteristics – circumstantial connections i.e. having wire transfer forms in his suitcase/car

    6. 10.2 901(b)(2) “based upon familiarity not acquired for purposes of the investigation.” Someone intricate to case is being asked to id, as a layperson, D’s handwriting based on her case research. Second Circuit admits it - that part didn’t apply under this case’s circumstances, but court could have gone either way on this.

    7. Stelmonkas (1997)DAVIS authenticity questions - in every case like we want to ask if someone was trying to frame him: (1) Why would anyone seek to frame D? (would they frame such a small player?) & (2) if anyone was going to frame him is this the way they would do it? (plant docs that would be inaccessible for decades only to be unearthed many years later?).
      - Allegations that D was involved in murder of Jews during the Holocaust. Government introduced archived records that clearly demonstrated his enlistment, involvement, and assignments. 901(b)(8) Ancient docs are admissible as exceptions to the hearsay rule provided they are (A) in authentic condition, (B) in a place where they likely would be located if authentic, and (C) have been in existence for 20 years or more at the time offered. D argues that (A) and (B) are not met in this case. The docs were obtained from the Lithuanian capital and German sources. 2 experts testified to the authenticity of the docs.
      Held: The docs were properly admitted as exception to the hearsay rule (Affirmed.) Their authentic condition was not in the least suspicious.

    8. Phone Calls

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