Evidence

13 April

• Opinion testimony this week. Next week is article 8 (hearsay). The final week: Authentication on Monday, Privilege on Wednesday. Be sure and read the cases on authentication; this will also have a demonstration.
• Another demonstration on Wednesday. Scopes again. A forensic scientist will be showing up. Our task is to keep the evidence out. The topic will be Darwin's theory of natural selection, and its compatibility with the Biblical story.
• Brady
  So Brady is accepting bribes, and when Chemico finds out, they want a pay-out of their fidelity bonds. Why have this set-up? Because you ordinarily can't recoup from a thief: they tend to blow the money.

  So Chemico brings in an auditor/fraud investigator to try and get a handle on the actual numbers of the losses. Was he an expert? The court says no, so he can testify. It's just basic arithmetic, after all.

  Note that there's no clear line between "everyday personal knowledge" and "specialized knowledge." At some point, as things get more complicated, the judge would decide that we're in the realm of an expert, but in this case it seemed straightforward enough.

• Teen Ed
  Here, the defendant is found liable, but because the accountant wasn't properly identified as a witness, there were no damages (well, there was $1).

  It was totally logical to call the CPA to show the damages from the breach of contract. And he's just there to testify about the changes in the balance sheets, not any kind of fancy accounting techniques. So the testimony is not opinion, in a sense: it's not about a field, it's just about some facts with which the CPA is familiar.

  Now there are some opinions in here... not the arithmetic, of course, but how do we measure lost profits? That's a subtle question. Counting revenue, and cost of the goods sold, is pretty objective, but deciding how to compare past years with the present isn't necessarily so.

  Projecting the next year's performance, for example, is an opinion potentially based on many factors. And maybe the further out you go into the future, the assumptions you make become more critical and more numerous. So why is this not expert opinion testimony? The court says (Rule 602) that it's all based on personal knowledge.

  As a general rule, we favor the admission of evidence, provided it is grounded on personal knowledge and susceptible to cross-examination. This is basically rule 401: if it makes a material fact more or less likely, we want to let it in, unless there's a good reason not to.

  If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are:

  1. Rationally based on the perception of the witness and
  2. helpful to a clear understanding of his testimony or the determination of a fact at issue
  An expert can answer a hypothetical question (i.e., relying on information not personally known). "Based on the assumption of facts A, B, and C, do you have an opinion about D?" It's too broad to say that that's the entire difference. See 702 (the Daubert codification): an expert can only offer opinions if certain conditions are met. The judge decides whether those conditions are met by comparing them to what other qualified experts in the field would think is legitimate. And not only that, but the witness here is answering at least a partly hypothetical question: had Kimball performed under the contract, would Teen-Ed's sales have suffered less? Assuming a lay witness has a suitable base of experience, a judge might well allow some opinion testimony in a hypothetical context.

  So at a detailed level, this court doesn't give us a very useful or precise tool for differentiating between expert an lay testimony. But in broad strokes, it's useful: an expert can testify about facts no in his/her personal knowledge, but of a type that experts in his/her position routinely consider.

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• Daubert
  This was a big deal when it came out. It deals with Frye, which was about an early lie detector: the "general acceptance" test. The basic problem here is that it's both over- and under-inclusive. It allows testimony about discredited scientific theories to linger on in federal court. It also excludes solid advances in scientific understanding. Maybe these things ought to be admitted: the opposing side is free to dispute.

  The case had a very charged factual setting. Kind of a mass tort setting: multinational pharmaceutical, a class of plaintiffs with birth defects. Experts needed to establish causation.

  Anyway, SCOTUS comes out and says that the FRE supersede Frye. And the FRE take a more liberal view of relevance, and opinion testimony is treated more hospitably. The key factors are relevance and reliability: you need both. The dissenters (Rhenquist and Stevens; a somehwat unlikely pair), say that the relevance thing is fine, and rule 702 certainly superseded Frye but the FRE don't say anything about reliability. But the majority says relevance + reliability = admissibility.

  Does the expert's opinion assist the trier of fact? (that's the hook to relevance in 702)

  Is it really scientific (peer review, etc.)? (that's the hook to reliability.

  The test outlined by the court here is flexible. The district court judge has to decide whether the proffered opinion testimony is scientific. Does it adhere to the scientific method? Is it subject to peer review? Is there a known error rate? None of these are dispositive considerations, but these are the kinds of things to ask. And you can also consider generall acceptance: that's one consideration.

  So then 702 was amended to include Daubert. It's still controversial: the plaintiffs' bar in mass tort doesn't like it: it still excludes a lot of evidence. The civil defense bar isn't entirely thrilled with it either, but they probably get by OK with it.

15 April

• Note that Walstad differs substantially from the federal standard, as we shall see.
• A document can be authenticated by stipulation, incidentally. If the opposing party agrees that a photo is indeed of something, then it comes in.
• Rule 702: you can have specialised technical knowledge or experience even if you're not a scientific expert.
• Does Mona Lisa Vito in My Cousin Vinnie offer opinion testimony? Yes, in the sense that she's basing her conclusion on evidence that's just being told to her.
• Dr. Leslie Eisenberg: guest demo on expert testimony.
  Doctorate in anthro, certified in forensic anthro.

  Generally there's an effort to establish the expert's competency.

  We bicker about whether religious testimony can be part of a scientific expert's opinion.

  Rule 610 is there to prevent either tarring or endearing a witness to the jury on the basis of religion.

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  One of the objections that both practitioners and academics have to Daubert is that judges act as though a battle of experts is a bad thing. But we don't mind contradictory testimony about facts. Nevertheless, you often find that one side's experts might get excluded, and that erodes one side's rights: instant motion for summary judgment.

  "Calls for a legal conclusion:" you're not allowed to testify about the meaning of the law. The Judge describes the law to the jury, and the meaning of the law is not in the factual realm (the jury's domain). The exception: foreign law. You get that in tax or intellectual property matters.

• Most often experts testifying will not know what other experts have testified. And an expert's report might not be an issue in a trial until years after it was written (and "bench notes" made along the way can be subject to subpoena).
• Most of the contentious arguments over experts are in civil cases. Criminal lawyers are less comfortable with Daubert. You tend not actually to have Daubert hearings, even. Why? Because most criminal cases are of familiar types: everyone knows what kinds of experts are going to be needed and called. And many judges, recall, are former prosecutors. So they regard themselves as experienced with this kind of evidence; and there's reluctance to allow a challenge as to whether, say, the state crime lab is using good science.
• Recent National Academy of Sciences report on the state of forensic evidence is pretty interesting: it's getting attention.
• Kumho Tire extends the principles of Daubert to other-than-scientific knowledge (i.e., to all Rule 702 testimony).
• Walstad: WI is neither a Frye nor a Daubert jurisdiction. States are moving towards Daubert, generally, but there are differences. So under Daybert, relevance and reliability were required. In WI, under Walstad, we appear to require only relevance. What is interesting is whether relevance and reliability are really seperable. But remember in the dissent to Daubert, Rhenquist and Stevens clearly thought they were different. So can something not demonstrated to be reliable, can it ever be relevant? Can it actually tend to make a material fact more probable or less probable?
• Consider, e.g., a bomb-sniffing dog. If the dog gets things right only 30% of the time, is his work relevant? Does it matter whether the remaining 60% are false positives or false negatives?