About Jules M Epstein (hehimhis) The difference between Pennsylvania’s approach to judges and expert ‘gatekeeping’ and that under the Federal Rules of Evidence is stark. For the Commonwealth and its Frye jurisprudence, judges are told to ‘leave science to the scientists.’ The proscription is clear and far-reaching: [T]rial courts may not question the merits of the expert’s scientific theories,
In the late 1800s, when a child wrote to a newspaper editor asking whether there is a Santa Claus, the editor replied in what became one of the most quoted and reprinted editorials ever: Yes, VIRGINIA, there is a Santa Claus. He exists as certainly as love and generosity and devotion exist, and you
BY JULES EPSTEIN When we look at something – an inanimate object, an event unfolding – does that stimulus go into our brain and tell the brain “here I am, recognize me!” Put more simply, is it like a camera where sensory input paints the picture on the ‘film.’ Or is the brain wired differently,
By Jules Epstein What wins the day in arguing a motion in limine? A single argument? Or is it a decision tree approach of “Your Honor, we prevail because of Rule A, but Rule D also applies and so might F?” One answer may come from studying the dilution effect and an experiment on
When Simon and Garfunkle wrote “listen to the sound of silence” they were not urging a principle applicable to hearsay analysis. But the Michigan Supreme Court took that notion to heart in a recent decision that ‘read between the lines’ and found that words never mentioned in court, but inferable from context, violate not only
By Jules Epstein Are we wrong to front bad facts? Is that “sponsorship,” i.e., giving the bad fact your imprimatur? The question may sound crazy – and if you read to the end you should see that the answer to each of those two queries is a resound “no.” But sponsorship theory lives, and it
As we approach the June 27 debate between President Biden and presumptive nominee Trump, much advice has been forthcoming as to how Mr. Biden should proceed. Written without benefit of polling data or focus groups, the below column makes suggestions based on persuasion techniques. To prevail in Thursday’s debate and then in the election,
Lay opinion testimony is tolerated because, frankly, it is hard to find the line between fact and opinion (“she is tall,” “they appeared drunk,” “the car was way over the speed limit”) and because lay witnesses should be comfortable speaking in normal, conversational, easily-understood terms. To ensure there is a foundation for the opinion rather
When a prospective juror says “I believe homosexuality is a sin” just like stealing, may that person be the “fair and impartial” juror? In a case brought by a lesbian prison guard whose claim is harassment on the job? The default answer should be “no.” Yet according to Justice Samuel Alito the answer is presumptively
“I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.” The aspirational words of Dr. Martin Luther King, Jr. remain just that – aspirational, particularly in the courtroom.