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11-25-09 Handout-Common-Knowledge-Expert-Knowledge

11-25-09 Handout-Common-Knowledge-Expert-Knowledge -...

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Tillers-Handout for student use only p. 1 of 6 Very Brief Notes mainly about Common Knowledge, Expert Evidence & Eyewitness Identifications (4) The textbook's editors wrest yet another admissibility requirement for expert evidence out of the "assist the trier of fact" language in R 702: [For later consideration: The editors use Question 1 to make the point that the testimony of an astrologer would not assist the trier of fact. I think the more appropriate moral of the problem found in the question is that astrology is not a science and that it is not a reliable instrument when used in the way described in Question 1. However, perhaps no harm is done if the astrology problem is viewed through the lens of "assist" rather than the lens of "reliability."] Matter not within common knowledge In their discussion at pp. 519-520 the editors say, roughly, that expert evidence will not assist the trier of fact about a question of fact if the question of fact is within normal experience and common knowledge. See, e.g., p. 520 ("[E]xpert testimony does not assist if the jury has no need for an opinion because it [an inference or opinion?] easily can be derived from common sense, common experience, the jury's own perceptions, or simple logic.") It is true that the older cases said and held that factual questions fell either within or outside common experience and common knowledge and that expert testimony is inadmissible when the matter at issue is within ordinary experience and common knowledge. It is also true that even today courts occasionally speak this way -- as though expert evidence about a question of fact were admissible only if the fact in issue is beyond common knowledge. But a complete dichotomy between expert knowledge and
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Tillers-Handout for student use only p. 2 of 6 ordinary knowledge is a false dichotomy. Ordinary people may have some capacity to judge a fact question -- e.g., the probability of a fall when a floor is newly-waxed -- but it does not follow that in such situations expert knowledge can or should play no role. Close study of judicial opinions reveals that courts do not in fact allow expert evidence only when a matter lies entirely beyond ordinary experience and common knowledge. In the slip and fall case, for example, an expert might present some useful data about the frequency of falls under various conditions or have some useful opinions about the slipperiness of newly-waxed surfaces of various kinds under various conditions. A judicial pronouncement that a matter lies within common knowledge and that expert knowledge is therefore not admissible often disguises either (i) judicial skepticism about the probative value of certain kinds of expert evidence under certain circumstances or (ii) a judicial belief that some collateral non-epistemic social value or values suggest that society is better off if the expert is not allowed to testify. For example, Question 2 is
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11-25-09 Handout-Common-Knowledge-Expert-Knowledge -...

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