EvidenceProf Blog

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

Monday, March 21, 2022

Eastern District of California Finds Expert Testimony Based on Inadmissible Evidence Admissible in Insurance Dispute

Federal Rule of Evidence 703 provides that

An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect (emphasis added). 

So, what facts or data do experts in a particular field rely on in forming opinions? The recent opinion of the United States District Court for the Eastern District of California in Burns v. Progressive Casualty Insurance Company, 2022 WL 827036 (E.D.Cal. 2022), provides one example.

Continue reading

March 21, 2022 | Permalink | Comments (0)

Tuesday, March 15, 2022

Further DNA Testing is Approved in the Adnan Syed Case

Today, Judge Melissa M. Phinn granted the Joint Petition for Post Conviction DNA Testing in the Adnan Syed case. Here is the judge's order:

Screen Shot 2022-03-15 at 8.57.14 PM

Screen Shot 2022-03-15 at 8.58.29 PM

So, let's break that down.

Continue reading

March 15, 2022 | Permalink | Comments (1)

Friday, March 11, 2022

Adnan Syed & the State File a Joint Petition for (Further) DNA Testing

On Tuesday, Adnan Syed and the State of Maryland filed a Joint Petition for Post Conviction DNA Testing. So, what does this mean?

Continue reading

March 11, 2022 | Permalink | Comments (8)

Tuesday, March 8, 2022

Ninth Circuit Finds No Error in District Court's Refusal to Sequester State's Summary Witness in Fraud Trial

Federal Rule of Evidence 615 provides that

At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize excluding:

(a) a party who is a natural person;

(b) an officer or employee of a party that is not a natural person, after being designated as the party’s representative by its attorney;

(c) a person whose presence a party shows to be essential to presenting the party’s claim or defense; or

(d) a person authorized by statute to be present.

The recent case United States v. Fujinaga, 2022 WL 671018 (9th Cir. 2022), provides a good example of Rule 615(c) in action.

Continue reading

March 8, 2022 | Permalink | Comments (0)

Friday, March 4, 2022

Texas Court Finds Witness's Testimony That He'd Found Christ Didn't Open Door to Impeachment Through His Criminal Record

Texas Rule of Evidence 609(a) provides that

Evidence of a criminal conviction offered to attack a witness’s character for truthfulness must be admitted if:

(1) the crime was a felony or involved moral turpitude, regardless of punishment;

(2) the probative value of the evidence outweighs its prejudicial effect to a party; and

(3) it is elicited from the witness or established by public record.

That said, an exception to Rule 609 applies when a witness makes statements concerning his past conduct that suggest he has never been arrested, charged, or convicted of any offense. So, was this exception triggered in Cortinas v. State, 2022 WL 619158 (Tex.App. 2022)?

Continue reading

March 4, 2022 | Permalink | Comments (0)

Thursday, March 3, 2022

Tenth Circuit Finds No Rule 704(b) Issue With Officers' Testimony in Drug Distribution Case

Federal Rule of Evidence 704(b) provides that

In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.

Courts, however, have construed this prohibition very narrowly and allowed experts to come awfully close to offering opinions about defendants' mental states in drug distribution cases. The latest example can be found in United States v. Draine, 2022 WL 598972 (10th Cir. 2022).

Continue reading

March 3, 2022 | Permalink | Comments (0)

Wednesday, March 2, 2022

2022 Evidence Summer Workshop (ESW2022)

The Evidence Summer Workshop will be held at at Vanderbilt Law School in Nashville, TN, on May 5-6, 2022. Details below:

Dear Colleagues,

We are delighted to announce the 2022 Evidence Summer Workshop (ESW2022) to be held at Vanderbilt Law School in Nashville, TN, on May 5-6, 2022. (In the event of a new COVID wave, ESW2022 will be moved to Zoom, but we are hoping to finally be in person again.)
The Evidence Summer Workshop provides evidence scholars an annual venue to present their latest projects, share ideas, and develop lasting relationships among each other. The Workshop features two types of sessions: i) Sessions for working drafts with assigned commentators, and ii) Smaller breakout sessions for ideas at an earlier stage of development.

All evidence scholars, whether presenting or not, are welcome to register and attend. Those wishing to present should submit an abstract or short summary (250 words for working papers, 100 words for early ideas) by March 15, 2022 on the conference webpage, evidenceworkshop.com. We welcome submissions from scholars at all stages of their careers, though some preference will be given to those within their first decade of teaching. Selection decisions will be made by April 1.

ESW2022 includes all meals (dinner, breakfast, lunch) for registrants. Participants are responsible for their own housing and travel costs. A block of rooms will be reserved at a nearby hotel for ESW participants. Additional information will be available soon at evidenceworkshop.com.

The 2022 Evidence Summer Workshop is generously made possible by Vanderbilt Law School’s Branstetter Litigation and Dispute Resolution Program.

If you have any questions, or would like to serve as a commentator on the papers, please contact any of us.

Ed Cheng (Vanderbilt), edward.cheng@vanderbilt.edu<mailto:edward.cheng@vanderbilt.edu>
Alex Nunn (Arkansas), ganunn@uark.edu<mailto:ganunn@uark.edu>
Julia Simon-Kerr (Connecticut), julia.simon-kerr@uconn.edu<mailto:julia.simon-kerr@uconn.edu>
Maggie Wittlin (Fordham), mwittlin1@fordham.edu<mailto:mwittlin1@fordham.edu>

March 2, 2022 | Permalink | Comments (0)