Friday, August 16, 2013
First things first: thank you to Colin Miller for inviting me to guest blog here at EvidenceProf blog. I taught Evidence for the first time last spring, after having taught the Lawyering course (first-year research and writing) at NYU for three years. This blog, and Colin, were of great help in getting me through that first exhausting Evidence prep.
As someone who is new at this, I’m in the big tinkering stage with the construction of my Evidence course now. I have a better sense of what I want to, and am able to, accomplish. And so it is along the lines of teaching Evidence that I intend to concentrate my postings over the next couple of months. And what better place to start than the first day of class. I am curious about what people do with their classes on Day 1, and what they hope to accomplish by doing so. The particulars of any class certainly matter, such as class size, whether it is made up of only 2Ls (or only 3Ls or some kind of mix), whether the class is required for graduation or not, etc.
For us here at Loyola Law School, Los Angeles, Evidence is a required course for 2Ls. Most students prefer to take it in the Fall, and it’s offered in big rooms, so I have an enrollment of about 108 students. My experience as a Lawyering professor has greatly influenced my pedagogy. I value an inter-active classroom, which means that my class is not dominated by my lecturing, but regularly involves students speaking to the class or amongst themselves in small groups. I also believe that in-role exercises are important to the learning and training that a good legal education should provide, so my students regularly find themselves cast in the role of proponent or opponent of a piece of evidence articulating arguments to students in the role of judges, who then offer a ruling supported by reasoning.
With this in mind, my first day looks something like this.
Prior to joining the academy, Professor Lapp spent four years at the Legal Aid Society of New York City in the Juvenile Rights Practice and clerked for the Honorable A Howard Matz in the Central District of California.
•Kevin Lapp and Joy Radice, A Better Balancing: Reconsidering Preconviction DNA Extraction from Federal Arrestees, 90 N.C. L. Rev. Addendum 157 (2012) (which I reviewed here);
•Kevin Lapp, Reforming the Good Moral Character Requirement for U.S. Citizenship, 87 Ind. L. J. 1571 (2012);
•Kevin Lapp, Pressing Public Necessity: The Unconstitutionality of the Absconder Apprehension Initiative, 29 N.Y.U. Rev. L. & Soc. Change 573 (2005).
Professor Lapp will primarily be doing pedagogical-type posts that focus on his experience as a new law professor teaching Evidence for the first, and now the second, time.
Wednesday, August 14, 2013
For decades, the D.C. Circuit's opinion in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), ruled the roost in terms of the admissibility of expert opinion testimony. Pursuant to Frye, a court was only to admit expert opinion testimony if it was based upon a technique, technology, etc. that had "general acceptance" in the relevant expert community.
In 1993, however, in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Supreme Court found that this Frye test no longer applied in cases governed by the Federal Rules of Evidence. In Daubert, the Court created the idea of judicial gatekeeper and held that in determining whether expert testimony is based upon reliable principles and methods under Federal Rule of Evidence 702, federal judges can consider factors such as
whether the "technique can be (and has been) tested," "[w]hether it has been subjected to peer review and publication," the "known or potential rate of error," "whether there are standards controlling the technique's operation," and "whether the...technique enjoys general acceptance within a relevant scientific community."
Part of the basis for this new Daubert test was that "junk science" that had general acceptance in a relevant expert community (e.g., the arson investigation community) might be admitted pursuant to Frye despite not withstanding external scrutiny. That said, in his majority opinion in Daubert, Justice Blackmun noted that
Nothing in the text of this Rule establishes "general acceptance" as an absolute prerequisite to admissibility. Nor does respondent present any clear indication that Rule 702 or the Rules as a whole were intended to incorporate a "general acceptance" standard. The drafting history makes no mention of Frye, and a rigid "general acceptance" requirement would be at odds with the "liberal thrust" of the Federal Rules and their "general approach of relaxing the traditional barriers to 'opinion' testimony."
This would seem to imply that the replacement of the Frye test with the Daubert test was intended in part to allow for the admission of more expert opinion testimony. And, if that's the case, has Daubert been successful in this regard? According to Professors Andrew Jurs and Scott DeVito in their forthcoming article, The Stricter Standard: An Empirical Assessment of Daubert's Effect on Civil Defendants (Catholic University Law Review), the answer is "no."
Monday, August 12, 2013
Frederick Vars, an Associate Professor at the University of Alabama School of Law, has an interesting chapter, Behavioral Economics and Evidence Law, in the forthcoming Oxford Manual on Behavioral Economics and Law. Here's the abstract to the chapter:
Behavioral economics has been applied to evidence law in at least four different ways: (1) to explain or justify current law; (2) to argue that current law counteracts or fails to counteract the findings; (3) to advocate changes in practice under existing law; and (4) to argue for law reform. On the surface, the first two applications appear descriptive and the second two normative. Below the surface all four missions share common assumptions about the power and generalizability of the psychological findings. Even superficially explanatory assertions are premised on the normative view that psychology should inform our understanding of evidence law. Whether it should, and how law and practice should be changed, are incredibly complex questions. Illustrating the complexity and suggesting ways forward are the goals of this Chapter.
Professor Vars considers several types of evidence in his chapter, including character evidence, expert evidence, and eyewitness testimony. In this post, however, I want to focus on his discussion of evidence of subsequent remedial measures.