Sunday, May 1, 2011

Is an Amicus Brief a Vehicle for Introducing Evidence Not Presented at Trial?

In a recent Pennsylvania Superior Court decision, the intermediate appellate court refused to consider the neurological and psychological information submitted in an amicus brief submitted by several organizations and three professors with considerable expertise in juvenile justice.. (See footnote 3 on page 7 of the opinion).  Commonwealth v. Brown. The court wrote:

Although informative and enlightening, the information contained in the

amicus brief was not provided to the trial court for consideration. Therefore,

the amicus brief was not relied upon by this Court in rending this opinion.

This position would have ruled out the famous Brandeis brief. Still, one can understand why a court would hesitate to rely on information in a brief when the opposing party had no opportunity to test the quality of the information through cross-examination and the testimony of other expert  witnesses. Here is a posting from the Legal Intelligencer blog by  Bruce Merenstein.


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