Exam Review

Question 1

Frye Test

Answer 1

General acceptance test

Question 2

Daubert Standard

Answer 2

the factors that may be considered in determining whether the methodology is valid are:

(TEPSA)

(1) Testable
(2) error rate
(3) peer reviewed
(4) standards
(5) acceptance

Question 3

Daubert Trilogy

Answer 3

Daubert
Joiner
Kumho

Question 4

GE v. Joiner

Answer 4

1) Judge may exclude expert testimony when there are gaps between the evidence relied on by an expert and that person’s conclusion
2) abuse-of-discretion standard of review is the proper standard for appellate courts to use in reviewing a trial court’s decision of whether it should admit expert testimony

Question 5

Kumho Tire

Answer 5

Judge’s gatekeeping function identified in Daubert applies to all expert testimony, including that which is non-scientific

Question 6

New Federal Rule of Evidence 702

Answer 6

Trilogy of Daubert, Joiner, Kumho

Expert by knowledge, skill, experience, training, or education (SKEET) may testify if:

(a) helps trier of fact understand or determine fact
(b) based on facts or data
(c) product of reliable principles and methods
(d) application of principles and methods to the facts of the case

Question 7

Measurement of Social Science

Answer 7

a) Variables (independent/dependent)
b) Operational definition (define variable & measurement/allows for replication of study)
c) Reliability (interrater/test-retest)
d) Validity (internal/external)

Question 8

Zippo v. Rogers

Answer 8

a. Consumer confusion over lighters

Zippo Test
Hearsay Exception:

Surveys OK if -

1) necessary
2) trustworthy

Question 9

Overall standard for consumer confusion surveys

Answer 9

overall standard is preponderance of evidence (51%):

a. The standard in a survey is not 51% consumer confusion; just more likely than not to confuse
b. Just has to be increased confusion!
c. Most judges will allow surveys to avoid appeal

Question 10

Jacobellis v. Ohio

Answer 10

Obscene film

a. Experts help jury understand their own community standard
b. “I know it when I see it”

Question 11

Miller v. California

Answer 11

Obscene porn brochure

a. Established obscenity test
i. Average person, applying community standards
ii. Depicts sexual conduct described by state law
iii. Work lacks literary, artistic, political, scientific value

b. Established “state specific” standard
i. No national standard under First Amendment

Question 12

Paris Adult Theater I v. Slaton

Answer 12

a. Obscene material has no protection under the First Amendment
b. Prosecution doesn’t need expert testimony; films are best evidence of what they represent

SCOTUS: legitimate state interest in legislating obscenity despite lack of scientific data

Question 13

Walker/ Monahan Damages Proposal (1998)

Answer 13

(1) certify class = population to be sampled
(2) plaintiff retains expert to conduct a survey of damages

(3) expert is admissible,
if testimony passes FRE 702/Daubert test

(4) defendant free to retain a survey expert
(5) findings of survey(s) presented to jury, stratified by subclasses
(6) No individual damages permitted.

Question 14

Kenneth Culp Davis

Answer 14

A) Adjudicative facts:

1) Case specific
2) From witnesses or presented evidence
3) Rules of evidence apply

B) Legislative facts:

1) Statutory
2) No rules apply

3) Not open to pre-decision debate
a) Davis argues that legislative facts should open to debate if facts are:
i) Narrow and specific
ii) Central or critical
iii) Controversial
iv) Unmixed with judgment or policy
v) Provable
vi) In some degree about the parties

Davis says courts should appoint own research team for legislative facts

Question 15

VMI

Answer 15

a. District Court upholds ban of women (a lot of research)
b. 4th Circuit upholds (a little research)
c. SCOTUS overturns (no research)

Question 16

US v. Roth

Answer 16

i. Mailing porn (obscenity)
ii. Court says SCOTUS has deemed such material to be unprotected by the 1st amendment
a) Other porn cases: kids are protected class
iii. But concurrence points to the facts that social sciences don’t connect obscenity with anti-social behavior
a) only exposure to violence leads to future violence

iv. Judge Frank says previous courts misrepresented Dr. Jahoda’s findings
1) So he asked Jahoda directly
a) Leads to ethical questions in our adversarial system

Question 17

Jury sizes

Answer 17

1) Williams v. Florida

a) Court says 6
b) Asch experiment- overall size of majority matters; 2 jurors out of 10 more likely to stick to their guns than 1 out of 6

2) Colgrove v. Battin
a) 6 for civil cases
3) Ballew v. Georgia
a) A jury made up of fewer than six members violates the Sixth Amendment right to a trial by jury

Question 18

4th Amendment exclusionary rule

Answer 18

i. Wolf
1) Exclusionary rule doesn’t apply in state criminal proceedings
ii. Mapp
1) overrules wolf
2) Evidence obtained through an unreasonable search and seizure in violation of the Fourth Amendment is inadmissible in state criminal proceedings
iii. Leon
1) i. Good faith exception to exclusionary rule

Question 19

Witherspoon

Answer 19

a. Excludes nullifiers from jury
i. Those who were completely against death penalty

b. Called Witherspoon Excludables (WEs)

Question 20

Lockhart v. McCree

Answer 20

CON does not prohibit removing for cause prospective jurors whose opposition to the death penalty is so strong that it would prevent or substantially impair the performance of their duties as jurors at the sentencing phase of the trial.

Question 21

Eberhardt study

Answer 21

a. Black defendants who were perceived as “stereotypically black” were much more likely to receive death sentence than those who were not
i. Only applied in black on white crime; not black on black
ii. Perceived as Interpersonal rather than intergroup conflict

Question 22

Social Science Authority (Monahan/Walker)

Answer 22

a. Courts should treat social science research relevant to creating a rule of law as a source of authority rather than as a source of facts, as they would treat legal precedent under common law

b. Good faith exception to empirical rule (J. Blackmon opinion)
Allow for standard to be changed based on new information

Question 23

Juvenile Sentencing

Answer 23

Difference in kid and adult brains:

1) don’t understand consequences
2) more capable of change/rehab

No death penalty: Roper v. Simmons

No life sentence outside murder: Graham v. FL & Miller v. AL

Question 24

Bail

Answer 24

Factors:
1) Defendant dangerousness

2) Risk of flight

Bail Reform Act

1) deny bail to violent criminals or drug crimes
2) CON but narrowly tailored; legit state public safety interest

Question 25

Sex Offenders

Answer 25

Kendrick v. Hendricks
Sexually Violent Predators Act

Sex offenders can be civilly committed following prison; not a criminal proceeding so no double jeopardy

Question 26

Pardons and Paroles

Answer 26

Age/History/Addiction/Gender can be used as factors

Race cannot be used!

Question 27

Duty to warn

Answer 27

1) Tarasoff-
Establishes duty to warn for (therapist)psychiatrists/psychologists with a special relationship if threat is foreseeable to identified victim

a) doesn't apply nationally!
PA case (Hopewell)

2) Thompson-
No affirmative duty to warn for a non-specific threat to non-specific victim

Question 28

Sokolow Test

Answer 28

Drug Courier

1) 2 prong test
a) Suspicion of ongoing criminal activity
i) Use of alias or evasive movement through airport

Question 29

Cop Stops

Answer 29

Lopez- airport skyjacker pat down ok with reasonable suspicion

Floyd- stop and frisk a no-no

Martinez-Fuerte- stationary checkpoint ok to use ethnicity

Terry- reasonable suspicion stop ok

NJ v. Soto- profiling drivers not ok

Question 30

Cultural Experts

Answer 30

1) experts can testify to culture without knowing D
2) BWS
3) Battered Child Syndrome
4) Characteristics (i.e. of rapist) can be used by D, not P
5) PTSD may mitigate sentence/veterans courts

Question 31

Rape Trauma Syndrome (RTS)

Answer 31

1) RTS can be used to illustrate behavior patterns to jury
a) But not to prove rape alone! (Banks)

2) Lawrence/UVA Law Review
a) P allowed to use PTS to prove rape cases
b) D should be allowed to use RTS to disprove rape

Question 32

Henderson Test

Answer 32

1) To trigger pretrial hearing, court considers system variables (Burden on D)
i. Variables in control of state
2) At Pretrial hearing, court considers system variables and estimator variables
ii. elements that system has no control over (i.e. witness)
3) . Leads to enhanced jury instructions which negates need for most expert witnesses

Question 33

Eyewitness ID

Answer 33

a. Acquisition phase
i. Event factors
ii. Witness factors

b. Retention phase
i. Forgetting curve
ii. Post event info

c. Retrieval phase
i. Retrieval environment
1) i.e. lineup

d. Loftus/Palmer experiment
i. Use of wording to affect estimated speed of crash

Question 34

Chapple case

Answer 34

1) D called well-known Dr. Loftus (witness ID expert)
a. Uses Amaral/Dyas test
1) Testimony must be beyond the ken of average layperson (juror)
2) Expert witness must be qualified to give testimony

3) Methodology
a) Frye= methodology: generally accepted (Amaral)
b) Daubert= methodology: scientifically valid

   c) Probative value must outweigh prejudicial impact

Question 35

Goals of Social Science Research

Answer 35

Prediction
Control
Understanding

Question 36

Diagnostic v. Framework Experts

Answer 36

BLUF: Sociologists provide framework, doctors (Diagnostic) testify about specific case.

Probabilistic testimony from experts should be prohibited (i.e. “the D probably committed the crime”)

Question 37

Walker/Monahan

Social Frameworks

Answer 37

1) Frameworks provide empirical contexts to inform the jury
2) Frameworks should be communicated like law: by instructions from the judge
3) Frameworks should be applied-or not-as the jury sees fit