Relevant evidence

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FRE 702 – When Expert Testimony is Admissible – If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

  • Elements: (1) Qualified as an expert, (2) assist the trier of fact

  • Certification: proponent inquires into credentials, opponent can cross on credentials, court decides whether to qualify witness as expert

  • FRE 703 – What an Expert May Rely On – The facts or data in the particular case upon which an expert bases an opinion or inference may be those [facts] perceived by or made known to the expert at or before the hearing.

  • If of a type [facts] reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted.

  • Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect

    • Not everything expert relies on has to be / will be admissible

    • Any evidence that is admitted as basis for the expert testimony is admissible only for evaluating such testimony, not for its truth

  • FRE 705 – No Need for Expert to Testify to the Underlying Facts – The expert may testify in terms of opinion or inference and give reasons therefor without first testifying to the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination

  • FRE 803(18) – Can cross experts w/ learned treatises (if they contradict expert). The treatise would come in for its truth.

  • Can cross expert on his compensation, whether expert has ever testified for the other side, how much of his income is from this client, how much is from testimony in general, etc. Goes to bias.

    • Frye (USSC): old standard for admissibility of scientific evidence: if it had gained general acceptance in the relevant scientific community.

      • D’s Complaints: gave too much power to the relevant scientific community in accepting “junk science.” Not enough discretion in judge.

      • P’s Complaints: too high a bar to good science that may be cutting edge, but is still trustworthy.

    • Daubert (USSC 1993): Judge must do 104(a) inquiry on scientific evidence:

      • 2 questions:

        • Is the science relevant? (702: assist the trier of fact)

        • Is it reliable? (702: based on sufficient facts or data, product of reliable methods, applied in a reliable manner)

      • Court gives 4 non-exhaustive factors for determining reliability:

        • Falsifiability. Could the theory be disproved if it were false?

        • Whether it has been subjected to peer review and publication

        • Rate of error. What is the rate of error? Are there standards for controlling the technique’s operation?

        • General acceptance. Here’s where Frye lives on – it’s still a factor, but is no longer the only one.

      • Additional factors mentioned in Downing (cited with approval): Types of error, existence of a professional literature appraising the process or technique, non-judicial uses and experience with it, its newness and relationship to more established processes or techniques, the qualifications of the witnesses.

      • Even if judge concludes something is valid science, can exclude under 403

        • Like if he finds the underlying information untrustworthy

      • Daubert hearings can go on a long time, but once one has been done, a court can rely on another court’s Daubert finding.

    • Kumho Tire (USSC 1998): Daubert factors applicable to all experts, including technical ones, not just scientific experts.

      • Acknowledges Daubert is hard to apply to some expert testimony. However, presumptively, all expert testimony has to fulfill Daubert.

        • Otherwise, the courts would have to be deciding what expert testimony is technical and what is science, which would be immensely difficult, and for which courts are unqualified.

      • Therefore, the basic questions are still (1) whether the expert testimony is relevant, and (2) whether it is reliable, both (a) in general as a theory and (b) as applied to the specific case, with a broad inquiry into each.

    • Problem 9D – Breathalyzer test is suppressed. Doc called to testify D was drunk. If test was suppressed b/c of constitutional violation, Doc can’t rely on it or testify to it. If test was suppressed under evidentiary ruling, Doc can rely on it, but not testify to it.

    • Syndrome Evidence: in at least 3 settings this type of proof has become commonplace, though controversy continues on points of detail.

      • Child Abuse Prosecutions: courts often admit testimony describing Battered Child Syndrome (BCS) or Child Sexual Abuse Accommodation Syndrome (CSAAS). Courts will often comment, however, that such experts should NOT say either that the child was abused in this particular case or that child’s account is truthful or correct.

      • Sexual Assault Trials: courts often admit testimony of Rape Trauma Syndrome (RTS) to help assess conduct by victim after the facts and evaluate defense claims of consent. However, courts have tended NOT to allow use of RTS to prove that an attack occurred.

      • Men Beating Women/Women Killing Abusive Man: courts often admit evidence of Battered Woman Syndrome (BWS) to shed light on the behavior of the woman.

        • Such evidence seems appropriate when such testimony describes generalized behavioral patterns based on observing many people (“Social Framework”).

        • However, when such testimony is being used to describe the behavior of a crime victim or criminal D, the term “social framework” is no longer accurate and Syndrome Evidence draws close to being character evid. of the sort regulated by 404/405.

        • Also, when expert testimony comments on the credibility of crime victims or criminal Ds, it draws close to being character evidence of sort regulated by 608 (impeachment).

      • NOTE: if Experts do give Syndrome Evidence in such cases, most courts tend to say that the Expert should NOT be able to use the actual term (EG. BWS) to describe this particular woman’s/child’s behavior.

      • Problem 9E: They Become Anxious and Guilt-Ridden. D Art accused of sexual assault on daughter Sandra (on DIRECT, Sandra says he also did this before…on XE, Sandra admits making up a prior story of abuse). Art then testifies Sandra wants attention. Dr. Burton called by Prosec as Expert, D’s lawyer objects. Does Daubert/Kumho apply to Dr. Burton’s science? *This is NOT pure science, it is psychological science. However, it is based on patterns and cases and conclusions, and the expert will be qualified to speak on these things. So yes.


    • Burden of Proof

      • Civil cases: generally preponderance of the evidence – 51/49

      • Criminal cases: beyond a reasonable doubt

      • Consists of 2 concepts: Burden of Production & Burden of Persuasion

    • Burden of Production

      • Just have to produce some evidence on a point. If opponent happens to produce it, that satisfies the burden

      • If a party fails to meet its burden of production, judge can grant summary judgment

    • Burden of Persuasion

      • Factfinder decides if the party with this burden carried it by the applicable standard

    • Burden of pleading is a procedural concept – we leave it to one side to inject a certain issue into a case, such as insanity. But we can give D the burden of pleading on insanity and still give P the burden of persuasion.

    • Policy: how do we allocate burdens? Factors:

      • Access to evidence – which side will better be able to gather the evidence to prove a certain point

      • Social policy

      • Probabilities – what we think is more likely to be true

      • Finality – ex: to show death, only have to show missing for 7 years. Then burden shifts.

    • If evidence is hard to find regardless, the party with the burden may just lose


    • Properly used, a presumption is a rule of law that says that under certain circumstances, if a party proves that one [basic] fact is true to the satisfaction of the trier of fact, then the trier of fact must find that another [presumed] fact is true.

      • Jury instructions: Juries don’t hear the word presumption if done right. The jury hears the instruction – “if you believe X by a preponderance of the evidence, then you must believe Y.”

      • Ex: presumption that if bailor can establish that he gave an item to the bailee in good condition and it is now broken [the basic facts], there is a presumption that the bailee was negligent [the presumed fact].

      • Inference vs. presumption. An inference is permissive, while a presumption is obligatory. An inference is something that a jury may or may not draw, which the lawyers argue in summation. Judges may put instructive inferences in jury instructions

    • Problems arise when party tries to counter the presumption. 2 theories on how to handle such situations, Morgan and Thayer.

      • Thayer: the “bursting bubble” theory. To void a presumption, all the bailee must do is introduce evidence that could support a rational person in concluding that the goods were damaged by reason other than the bailee’s negligence.

        • Bailee has a burden of production to negative the presumed fact.

        • Effect is to change the jury instruction from a “must” to a “may” – from a presumption to a permissive inference

        • This is the lower level of respect for the presumption

        • In example above, if bailee could introduce evidence of a flood, this would meet the burden of production to negative the presumed fact (that bailee was negligent). B/c bailor has no other proof of bailee’s negligence, he’s out of court.

      • Morgan: presumption shifts both the burden of production and the burden of persuasion.

        • Gives more weight to the presumption

        • In our example, bailee would have the burden to persuade the trier of fact that he was not negligent. Could say this places the burden with the party best equipped to produce the proof.

        • Jury instruction would be: “Everyone agrees that _[basic fact]_ is true. You must find that the presumed facts are true unless the opponent of the presumed facts has persuaded you by a preponderance of the evidence that the presumed fact is not true.”

    • FRE 301 adopts Thayer’s bursting bubble, but allows Congress to opt out:

      • In all civil actions and proceedings not otherwise provided for by Act of Congress or by these rules,

      • a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption,

        • A production burden

      • but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast.

    • FRE 302 – In civil actions, where matter will be decided under state law, state presumption law applies.

      • Otherwise, you encourage forum shopping. Fuckin’ Erie.

    • Problem 10B – Issue is whether Parnell’s death was accidental or suicide. There is a presumption against suicide: the basic facts are sudden and violent death, and the presumed fact is that it’s not suicide.

      • Parnell’s wife introduces evidence that there was sudden and violent death, no soot pattern or flash burn on his face, that another rifle of his had accidentally discharged, that he died holding a cigarette lighter, that he was in good financial condition, healthy, happily married, not moody or morose.

      • Insurance company introduces evidence that the rifle was in perfect order, other proof such as marital difficulties and illness.

      • Widow asks for an instruction on the presumption, and the insurance company seeks a directed verdict.

      • Two issues to decide:

        • Has insurance company met burden of production of negativing the presumed fact?

        • Has insurance company introduced evidence for court to give it a directed verdict?

      • Thayer jurisdiction (bubble): Insurance company’s evidence is sufficient to meet production burden of proving “not suicide.” Thus, the presumption is knocked out of the case. However, there is enough left from which the jury could infer accident, so no directed verdict. This goes to the jury without any mention of a presumption.

      • Morgan jurisdiction: Though insurance has met production burden, still has persuasion burden. Wife will therefore get a very nice jury instruction: “If you find that it was a sudden and violent death, you must find that it was an accident unless the insurance company can persuade you by a preponderance of the evidence that it was suicide.

        • The instruction contains the word “must” and puts the burden of persuasion on the insurance company.

    • Burdine (USSC 1981): Woman alleges intentional employment discrimination. She has production burden (by a preponderance) of establishing basic facts (prima facie case): that she applied, was rejected, is in a protected group, and after her rejection the position remained open to applicants with similar qualifications. She did so, creating a presumption of discrimination.

      • Holding: D has to come back with a “clear and reasonably specific” reason for her firing that is non-discriminatory. Court calls it a production burden b/c of 301, but court seems to be giving more weight to the presumption than 301’s pure bubble bursting.

      • However, if D meets this production-plus burden, presumption is entirely gone, and P has burden of persuasion that she was discriminated against. This will require more than the basic facts, but can involve them.

      • Court may be giving the presumption more weight because of the public policy behind Title VII and the difficulties of proving discrimination circumstantially. Alternatively, Court could come out in the next case and say that scholars are over-reading Burdine and this is a pure 301 analysis. Or they can say that they refused to use 301 in Title VII cases, though would have to find Congressional authorization for this.

    Presumptions in Criminal Law

    • Winship (USSC): state must prove every element beyond a reasonable doubt.

      • But problem: the state decides what the elements of a crime are – if it doesn’t want to prove one, could just write it out of the law

      • Only constraint is the political process (except in DP law)

    • Mullaney v. Wilbur (USSC): Maine murder statute used old common law terms, including requirement of “malice aforethought.” Trial court’s jury instruction said malice would be presumed from a deliberate act done without provocation. If Wilbur could show that he acted in the heat of passion, crime only manslaughter. Problem is that both sides have proof on issue of provocation

      • USSC: this overlap had the effect of shifting BoP on an element to Wilbur, in violation of Winship.

    • Patterson (USSC): Endorsing narrow view of Mullaney. D charged with murder, which NY defined as killing someone with intent to do so. NY also had affirmative defenses, which D had to prove by a preponderance.

      • USSC: This is okay. NY can require D to prove affirmative defenses, so long as there is no overlap with elements of the crime. NY didn’t shift BoP on an element to D, so constitutional.

      • Powell dissent: State shouldn’t be able to give D burden on any issue that (1) has a substantial effect on D’s punishment or exoneration, and (2) where Anglo-American law traditionally puts the burden on the state.

    • Problem – Woman killed her husband. Elements of murder are purposely killing another, prior calculation and design. She claims self defense. State makes this an affirmative defense. She has to prove by a preponderance (a) that she wasn’t at fault in creating the situation that led to the death, and (b) that she had had an honest belief that she was in imminent danger of death.

      • We might say this violates what’s left of Mullaney, that “prior calculation and design” is incompatible with “belief in imminent danger,” so parties are being given BoP on same issues.

        • Idea that belief in imminent death shows the absence of prior calculation and design

      • In actual case, USSC said this was ok, though jury instruction could have been phrased better.

    • Where we stand: Mullaney stands for proposition that the state cannot create an element of an offense, and then create a presumption of its existence from other elements of the offense, or give D the burden of disproving it. D has the right to have the prosecutor prove and a jury decide all the elements

      • State can give a criminal defendant a production or persuasion burden (like in Patterson) on a part of an affirmative defense that is not part of the charged crime.

      • Ex: On insanity, state could give defendant a burden. If it’s a production burden, then once defendant meets it, the state would have to disprove insanity beyond a reasonable doubt. However, if it’s a persuasion burden, state can choose to keep it on the defense.

    • Sandstrom (USSC): Under MT law, to be murder, killing had to be “purposeful and knowing.” MT also had presumption that a person intends the ordinary consequences of his acts. As jury instruction on this played out, it either was that if the jury found a homicide, it had to find it was purposeful and knowing (i.e. murder), or that the presumption shifted the burden to D to prove killing was not purposeful and knowing. Either way, this violates Mullaney and Winship.

    • Ulster County (USSC): All about what is the standard for getting a jury instruction on a permissive inference. Important, b/c when a judge says the jury can infer something, it carries more weight than when a lawyer says it in closing.

      • Here, 4 people are being prosecuted for gun possession. Got pulled over and police found 2 large handguns sticking out of girl’s purse. Per NY law, judge instructed jury “you may infer that everyone in the car possessed the firearms.”

      • Stevens’ test for instructed inferences: If the inferred fact “more likely than not” flows from the basic fact, the instructed inference is okay.

      • Powell dissent: That’s too low a bar. The jury might then rely on the inference to convict even though the nexus does not exist beyond a reasonable doubt.

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