Exam Review Flashcards
Frye Test
General acceptance test
Daubert Standard
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
Daubert Trilogy
Daubert
Joiner
Kumho
GE v. Joiner
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
Kumho Tire
Judge’s gatekeeping function identified in Daubert applies to all expert testimony, including that which is non-scientific
New Federal Rule of Evidence 702
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
Measurement of Social Science
a) Variables (independent/dependent)
b) Operational definition (define variable & measurement/allows for replication of study)
c) Reliability (interrater/test-retest)
d) Validity (internal/external)
Zippo v. Rogers
a. Consumer confusion over lighters
Zippo Test
Hearsay Exception:
Surveys OK if -
1) necessary
2) trustworthy
Overall standard for consumer confusion surveys
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
Jacobellis v. Ohio
Obscene film
a. Experts help jury understand their own community standard
b. “I know it when I see it”
Miller v. California
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
Paris Adult Theater I v. Slaton
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
Walker/ Monahan Damages Proposal (1998)
(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.
Kenneth Culp Davis
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
VMI
a. District Court upholds ban of women (a lot of research)
b. 4th Circuit upholds (a little research)
c. SCOTUS overturns (no research)
US v. Roth
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
Jury sizes
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
4th Amendment exclusionary rule
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
Witherspoon
a. Excludes nullifiers from jury
i. Those who were completely against death penalty
b. Called Witherspoon Excludables (WEs)
Lockhart v. McCree
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.
Eberhardt study
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
Social Science Authority (Monahan/Walker)
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
Juvenile Sentencing
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
Bail
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
Sex Offenders
Kendrick v. Hendricks
Sexually Violent Predators Act
Sex offenders can be civilly committed following prison; not a criminal proceeding so no double jeopardy
Pardons and Paroles
Age/History/Addiction/Gender can be used as factors
Race cannot be used!
Duty to warn
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
Sokolow Test
Drug Courier
1) 2 prong test
a) Suspicion of ongoing criminal activity
i) Use of alias or evasive movement through airport
Cop Stops
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
Cultural Experts
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
Rape Trauma Syndrome (RTS)
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
Henderson Test
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
Eyewitness ID
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
Chapple case
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
Goals of Social Science Research
Prediction
Control
Understanding
Diagnostic v. Framework Experts
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”)
Walker/Monahan
Social Frameworks
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
