1
Q
when did frye v US happen
A
1923
2
Q
what standard came out in frye
A
general acceptance standard
3
Q
describe the frye case
A
- issue regarding the admissibility of systolic blood pressure deception test used as a lie detector test
- TJ said inadmissable cause the test hadnt gained general acceptance in scientific community
4
Q
what was the key problem w the frye standard
A
- to be admissible, science must have crossed line between experimental and demonstrative stage
- hard to determine when the science crosses that line
5
Q
what is the drye criteria
A
the scientific basis of expert evidence must have gained acceptance in its field to be admissible in court
6
Q
how long was frye the gold standard
A
until the 1970s
7
Q
what was said in the US v Stifel case
A
every new development must have its first day in court
8
Q
describe Daubert v Merell Dow Pharmaceuticals 1993 (og trial)
A
- issue was if a drug caused birth defects in kids
- expert called by plaintiff to indicate that possibility
- expert material filed by D indicated that no published study demonstrated a “statistically significant” correlated between the drug and the defects
- TJ relied on frye principal
- found plaintiffs evidence didnt meet frye standard
9
Q
was the frye standard too restrictive, or not restrictive enough
A
too restrictive
10
Q
what did the US SC say about Daubert
A
- that frye standard was too restrictive
- looked at new rule 702
- ruled admissibility requires scientific testimony to be relevant and reliable
- this trumps frye
- judges must conduct a prelim assessment if the reasoning is scientifically valid
11
Q
US SC ruled admissibility requires scientific testimony to be _____ and ______
A
- relevant
- reliable
12
Q
what considerations should be asked during the judges prelim assessment on the scientific validity
A
- Has it been tested?
- Has it been peer reviewed?
- Known or potential rate of error of technique and stds for operation?
- General acceptance in scientific community?
13
Q
what was the decision in General Electric v Joiner 1997
A
TJ didnt admit evidence cause he found there was “too great an analytical gap between data and ex. opinion”
14
Q
Appeal courts are not to interfere with Trial J’s ruling on admissibility unless there is what
A
an abuse of discretion
15
Q
TJs have _____ in how they perform gatekeeper functions
A
broad discretion
16
Q
Obligation is on who to conduct a meaningful evaluation of the reliability of expert evidence
A
TJs
17
Q
what key rulings came out of General Electric v Joiner 1997
A
- mainly highlighted the TJ as gatekeeper
- Appeal courts are not to interfere with Trial J’s ruling on admissibility unless there is an abuse of discretion
- TJ’s have broad discretion in how they perform gatekeeper functions
- Obligation on TJ’s to conduct a meaningful evaluation of the reliability of expert evidence
18
Q
describe what came out of Khumo Tire vs. Carmicheal
A
- Daubert also applies to technical & other specialized knowledge
- List of factors in Daubert meant to be helpful, not definitive, and all do not necessarily apply in every case
19
Q
describe what came out of Weisgram v. Marly Co.
A
Altho TJs have leeway in how they apply Daubert, experts must offer evidence about the basis of their opinions in order for the TJ to conclude the basis is dependable
20
Q
as stated in Weisgram v. Marly Co. experts must offer evidence about what in order for the Trial J to conclude the basis is dependable
A
the basis of their opinions
21
Q
describe what came out of US v. Dennis Mooney
A
Judge may order a pre-trial hearing (voir dire) to determine admissibility of expert evidence
22
Q
what is Daubert’s 2 part admissibility test
A
- Reliability
- Whether experts evidence reflects ‘scientific knowledge’
- Whether findings derived by scientific method
- Whether product is ‘good science’
- What is the purpose for which the research was conducted
- Relevance
- Is proposed evidence relevant to issues in the court case
23
Q
what is the canadian equivilant of daubert
A
mohan
24
Q
R v Mohan Sets our 4 criteria for determining ______ of expert evidence
A
admissibility
25
what are the Mohan criteria
1. Relevance
2. Necessity in assisting trier of fact
3. Absence of any exclusionary rule
4. Properly qualified expert
26
describe **relevance** as a part of the Mohan admissibility criteria
- a question of law
- *2 part test*
- opinion must be logically relevant to trial issues
- AND its probative value must exceed its prejudicial effect
27
when could evidence be found not relevant because its probative value exceeds its prejudicial effect
- Time required is not commensurate/ proportional w its value
- It could influence the trier of fact out of proportion to its reliability
- Misleading bc its effects on trier of fact (esp. jury) is out of proportion to its reliability *(Threshold test)*
28
describe **necessity** as a part of the Mohan admissibility criteria
opinion is *necessary* for trier of fact to appreciate matters at issue given technical/ specialized nature
29
**true/false** in mohan, ex. ev. needs to be helpful
- **false**
- too low a standard
- needs to be necessary
30
according to Mohan, for opinion to be necessary, the opinion must provide info that is what
- Outside the experience and knowledge of judge or jury
- Necessary to enable the trier of fact to appreciate the matters in issue due to their technical nature
- Ordinary people would unlikely form a correct decision about the facts if unassisted by someone with special knowledge
- On a subject matter that is complex & existence of scientific body
31
in Mohan, necessity is to assist the trier of ____ *(law/fact)*
fact
32
**true/false** in Mohan, you must consider probative vs prejudice in necessity
true
33
describe **Absence of any Exclusionary Rule** as part of the Mohan admissibility criteria
expert evidence not admissible if it would otherwise be excluded because of an exclusionary rule
34
what are examples of exclusionary rules
- disposition to commit the crime *cant have a forensic psych expert say that cause his family is all criminals he must have done this*
- credibility
- character evidence
- legal opinions
- privilege *cant call the lawyer to court cause its privileged communication*
35
**true/false** Daubert applied solely to scientific evidence
- **false**
- not just science
36
**true/false** in canada, its assumed to need admissibility of the testimony
- **true**
- the only time you can avoid it is if both counsel agree they're qualified and the judge says its okay
37
describe **properly qualified expert** as part of the Mohan admissibility criteria
- Expert must demonstrate special or peculiar knowledge
- Gained through study or experience re: those matters about which they will testify
38
**true/false** *in Mohan* you can be disqualified as a properly qualified expert cause someone else is more qualified
false
39
**true/false** *in Mohan* as an expert, you can be qualified on one issue but not another in the same field
true
40
in qualifying an expert based on Mohan, when can you exclude them
- unreliable evidence
- expert bias
41
in qualifying an expert based on Mohan, who evaluates qualifications and how
- courts
- in light of the matter about which giving opinion
42
what happened in the R v Livingston 2017 case
- ex. didnt qualify cause they helped in the OPP investigation to help officers develop a theory
- **introduced bias**
- sooo ex. didnt satisfy pat 4 of Mohan test
43
reliability vs effect on trier of fact can also be called what
probative vs prejudicial
44
what three things are considered when qualifying the science per Mohan
1. probative vs prejudicial
2. novel science *(special scrutiny needed)*
3. if E's evidence goes to "ultimate issue" *(special scrutiny needed)* *Like if the entire case is “who dunnit” and a fingerprint expert says it’s almost certainly the defendant, then their piece of evidence could just close the case. But thats the judge’s job so he might not let you present*
45
Per Mohan, what does "novel" mean in "novel science"
not defined (left open)
46
Per Mohan, what is the special scrutiny required in novel cases, and if the evidence goes to the ultimate issue
not defined (left open)
47
Per Mohan, what is the "ultimate issue"
the main issue the trier of fact must decide
48
the "ultimate issue" must be decided by the trier of ____ *(law/fact)*
fact
49
describe what was determined in * R v JL 2000*
- TJ is the gatekeeper for ex. ev.
- case by case basis *especially w novel science*
- regardless of whether o not opposing counsel raises issues
50
what was determined in *R v Trochym 2007*
- *hypnosis evidence was allowed and appealed*
- then not allowed
- cause it was based on novel science
51
what was determined in *R v Abbey 2009*
Judge as gatekeeper can consider not admitting expert evidence even if it otherwise admissible by weighing risks of **time, prejudice & confusion**
52
Per Abbey, what questions should be asked when qualifying the science
- **to what extent...**
- Is the field recognized?
- Work subject to quality assurance & independent review?
- Does the opinion rest on data?
- Is reasoning processes and methods open to critical examination by jury?
- Are the methods generally accepted in field
- Do methods ensure reliability of info gathered?
53
what key cases decide admissibility in Australia
- R v Bonython 1984
- Makita v Sprowles 2001
54
describe the case of R v Bonython 1984
- issue was if court can cross examine a witness on details of tech methodology to determine admissibility
- handwriting and signature analysis of PO
- they were questioning weight vs admissibility
55
per R v Bonython, admissibility is based on which questions
- Does area fall within subject matter of expert opinion & is it accepted as reliable?
- Is the witness sufficiently knowledgeable that the opinion would assist the court?
- *if yes to both, then its about weight not admissibility*
56
what was decided in Makita v Sprowles 2001
- admissibility is directly related to the reasoning process of the expert
- must be related to facts proven in some other way
- talked about *basal principle*
57
what does basal principle mean
that the opinion is based on the admissible facts
58
what cases are linked to admissibility in england and wales
- R v Turner 1975
- R v Gilfoyle 2001
- R Luttrell 2004
59
describe the R v Turner 1975 case
- psychiatric evidence in a murder case that it was a crime of passion
- inadmissible cause court found not necessary
60
describe the R v Gilfoyle 2001 case
- psychological profiling evidence
- inadmissible casue no criteria to test quality of evidence *no database, or academic support for methods*
- importance of foundations underpinning evidence *basis of opinion*
61
describe the R Luttrell 2004 case
- lip reading from CCTV
- contradictory ex. evidence but J still let it in
- court may admit evidence known to be unreliable as long as the judge cautions the jury about the nature of the unreliability
62
describe the R v Kysleytsya 2003 case
- PO tried to give evidence on the speed of a vehicle based on skid marks
- wasnt allowed
- cause crown failed to establish in the voir dire that the proposed evidence wasnt misleading
63
describe the R v Dimitrov 2003 case
- PO tried to give evidence on the similarity between barefoot impressions form shoes known to belong to the accused to impressions on boots spattered w V's blood
- allowed cause TJ was influenced by fact that the witness had testified in 25-30 cases
- buuuut court of appeal found TJ erred in admitting it cause there were significant issues regarding reliability of the science and the slight probative value was outweighed by prejudicial effect
64
what happened in the R v Kovats 2000 case
- PO was a lead investigator in a case
- he was disqualified from giving opinion evidence for Crown
- cause roles of lead investigator and ex. ev. "simply incompatible"
- *there is a perception of bias and that his opinion cannot be seen freely and independent since he will have an interest in the outcome of his opinion*
65
**true/false** Js can ask questions on the voir dire whether Lawyers do or not
true
66
what is the big unique thing about canada
- Are much more strict here on what the judge will let through
- *Other countries trust that juries can sift through things better so its left more chill*
67
when can provocation be used as a partial defence
*only* murder
68
Presentation of FE
flashcards
Decks in class (17)
# Cards
-
Intro54
-
My CV55
-
Chpt 4: Scientific Opinion and the Law in Practice46
-
Chpt 1: An Introduction to the Admissibility of Expert Scientific Opinion20
-
Lecture 2: Chapter 158
-
Lecture 3: Chapter 351
-
Chpt 3: Forensic Science and the Law: The Path Forward36
-
Lecture 4: Chapter 268
-
Chapter 2: Admissibility from the Legal Perspective46
-
Lecture 5: Chpt 5+678
-
Chapter 5: Interpretation and Evaluation of Scientific Evidence28
-
Chpt. 6: Case Studies in Expert Opinion4
-
Lecture 6: Chpt. 9: Bias and Expert Opinion62
-
Chpt 9: Cognitive Bias and Expert Opinion20
-
Cross prep for ev28
-
Lecture 7: Chpt 1953
-
Chapter 19: Conflicting Expert Opinion2
