EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Friday, August 2, 2013

Noteworthy Forthcoming Article: A Clash of Studies -- Using Removal Statistics to Assess Daubert

A new study by Andrew W. Jurs and Scott DeVito revisits – and disagrees with - the innovative 2005 study by Edward Cheng and Albert Yoon that examined the impact of Daubert on litigant behavior:  specifically, litigants' likelihood to remove cases from state to federal court.  

Since these studies are based on the idea that litigants might remove cases to federal court to take advantage of Daubert, it would be interesting if litigators could comment (below) on whether they actually do seek removal (or fight removal) based on state/federal variance in expert gatekeeping standards . . . .

Here’s the information on the new study:

The Stricter Standard: An Empirical Assessment of Daubert's Effect on Civil Defendants

Andrew W. Jurs (Drake University Law School) and Scott DeVito (Florida Coastal School of Law)

Catholic University Law Review, Vol. 62, 2013


While Daubert was clear in its rejection of Frye and the substantive standard for expert admissibility, its effect on litigants has been hotly debated. Several studies since 1993 used quantitative analysis through case study analysis and judicial surveys, to measure Daubert’s effect. Yet these methodologies have reached contradictory results. In 2005, Edward Cheng and Albert Yoon offered a revolutionary new approach in their work Does Frye or Daubert Matter? A Study of Scientific Admissibility Standards. They proposed that studying removal of cases from State Court to Federal Court in the period 1990 to 2000 could quantitatively demonstrate Daubert’s true effect. It works because a litigant could, by removing a case to federal court, switch scientific admissibility standards in some circumstances. The aggregate change in behavior of all litigants can therefore be measured. 

We agree that removal rate offers the best hope for assessing the true effect of Daubert, and so in this study we offer our analysis of removal rates using econometric tools never before applied in this area. Our analysis reveals a startling discovery: Daubert is the stricter standard for expert admissibility. Not only does a change removal rate after Daubert clearly demonstrate this result, but it is confirmed through a “shift back” to state courts when the state also adopts Daubert and removal no longer entails a change in standards. Our results directly contrast with Cheng & Yoon’s conclusions, and so we also revisit their study and deconstruct its methodology piece-by-piece. In so doing, we will describe several errors in that study both explaining the different results but also ultimately undermining its validity. 

Ultimately, our research into aggregate case data from real cases demonstrates a new and conclusive finding: Daubert has been the stricter standard.

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- JB

August 2, 2013 | Permalink | Comments (2) | TrackBack (0)

Thursday, August 1, 2013

The Character of the Matter: 5th Circuit Finds No Error in Exclusion of Character Evidence Concerning Naivety

Federal Rule of Evidence 404(a)(1) provides that

Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.

That said, Federal Rule of Evidence 404(a)(2) indicates that

a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it....

So, let's say that the sister of a drug kingpin who ran a large-scale cocaine and marijuana trafficking operation is herself charged with several crimes related to that operation. Pursuant to Rule 404(a)(2), should she be able to testify that she had a character for being naive and gullible? This was the question addressed by the Fifth Circuit in United States v. Alaniz, 2013 WL 3879878 (5th Cir. 2013).

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August 1, 2013 | Permalink | Comments (4) | TrackBack (0)

Tuesday, July 30, 2013

No (Giu)dice?: The Indictment of 2 Stars of The Real Housewives of New Jersey & NJ's Spousal Privilege

Yesterday, Teresa and Giuseppe (Joe) Giudice were indicted on 39 charges, primarily "stem[ming] from false income statements on loan and mortgage documents and failure to file tax returns." Here is a copy of the indictment. While the potential trial would be held in federal court -- the United States District Court for the District of New Jersey -- New Jersey state privilege law would apply pursuant to Federal Rule of Evidence 501. So, what does that mean?

New Jersey Rule of Evidence 509, New Jersey's confidential marital communications privilege, states that

No person shall disclose any communication made in confidence between such person and his or her spouse unless both shall consent to the disclosure or unless the communication is relevant to an issue in an action between them or in a criminal action or proceeding in which either spouse consents to the disclosure, or in a criminal action or proceeding coming within Rule 23(2). When a spouse is incompetent or deceased, consent to the disclosure may be given for such spouse by the guardian, executor or administrator. The requirement for consent shall not terminate with divorce or separation. A communication between spouses while living separate and apart under a divorce from bed and board shall not be a privileged communication. 

Many states have crime-fraud exceptions to their confidential marital communications privileges, meaning that, in those states, one Giudice could testify against the other Guidice regarding private conversations in which they planned the crimes (if, for instance, one of the two struck a plea deal).

In New Jersey, however, that is not the case. In State v. Terry, 68 A.3d 177 (N.J.Super.A.D. 2013), the trial judge engrafted a crime-fraud exception onto New Jersey Rule of Evidence 509. The Superior Court of New Jersey, Appellate Division, then removed this new appendage, concluding as follows:

We must disagree with the trial judge's reasoning. The fact that the spousal testimonial privilege was at issue in [prior cases] does not mean that we are free to create exceptions to other privileges. The fact that the Legislature codified a crime-fraud exception to the attorney-client privilege does not mean that we can add that exception to the marital communications privilege because the privileges are “akin”....Rather, under the Supreme Court's decisions in Byrd and Mauti, we may not engraft a crime-fraud exception onto the marital communications privilege.  

So, what would happen if the prosecutor wants to get one Giudice to testify about private communications with the other Giudice? No (Giu)dice. And while the fact that the Giudices now have most of their lives recorded might mean that their current conversations are not confidential, the charged crimes allegedly occurred before their reality show, meaning that the privilege contained in New Jersey Rule of Evidence 509 should apply (although it appears that some of the allegations in the indictment relate to failing to disclose income from their TV show in bankruptcy filings).


July 30, 2013 | Permalink | Comments (1) | TrackBack (0)

Monday, July 29, 2013

Stand in the Place Where You Live: Interesting New Florida & South Carolina Cases Involving Stand Your Ground Laws

Last week, over at the Education Law Prof BlogLaJuana Davis posed an entry about T.P. v. Florida, a case in which the Fourth District Court of Appeal applied Florida's Stand Your Ground law to a fight on a school bus. Today, over at The Faculty Lounge, my colleague and Davis's co-blogger, Derek Black, followed up with a post noting that

The stand your ground statute speaks only to criminal immunity, but, if I were representing a child in an expulsion hearing, I would press the fact that the child was only acting in a way that the law affirmatively protects and it would be inconsistent for a school to punish a child for something the law says he or she can do.  Of course, this only shows how absurd stand your ground is.  Many schools take the position that when a fight occurs and both students act with violence, there are no innocent parties.  In other words, schools expect students to deseclate a situation or be prepared to suffer the consequences.  Application of stand your ground to school grounds obviously sends the opposite message.

I agree with Professor Black and wanted to highlight another interesting Stand Your Ground case, this one from South Carolina.

Continue reading

July 29, 2013 | Permalink | Comments (1) | TrackBack (0)

Sunday, July 28, 2013

Dangers of “Cold-Hit” DNA Cases

Osagie K. Obasogie (UC Hastings) has a powerful piece in the New York Times highlighting, among other things, a fascinating example of mistaken DNA identification.  Available here

It appears that paramedics inadvertently transferred DNA from a severely intoxicated patient they encoutered on one call to a homicide victim they tried to resuscitate on another.  Based on the subsequent DNA hit, prosecutors charged the drunk guy with murder.  (The charges were dropped after five months.) As Prof. Obasogie notes, the case might have taken an even more tragic path if the intoxicated patient did not have a well-documented alibi.

For local news coverage of the case including the “mystery about DNA in the case” see here

- JB

July 28, 2013 | Permalink | Comments (0) | TrackBack (0)