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Any experienced trial attorney knows that the presentation of live expert testimony can be both expensive and risky. Experts often charge hundreds of dollars per hour for both pretrial preparation and trial testimony. Their witness fees can consume a huge percentage of the attorney’s litigation budget. Moreover, at trial, expert testimony can be a double-edged sword. On the one hand, properly presented, expert testimony can impress. On the other hand, if the attorney does not invest the time necessary to simplify the trial testimony or the expert does not stick to “the game plan” at trial, the testimony might backfire and confuse the jury. For these reasons, seasoned attorneys frequently consider dispensing with live testimony and taking the judicial notice route. Rather than expending thousands of dollars for live expert testimony, the attorney might have to pay an expert only a few hundred dollars to prepare an affidavit supporting judicial notice. A further advantage is that instead of presenting hours of testimony at trial, the attorney could gain the benefit of a judicial instruction directing the jury to assume the truth of a scientific proposition even though the jurors will not hear any testimony about the proposition. The purpose of this column is to describe the law governing the propriety of judicial notice of scientific propositions and to review some of the tactical considerations determining whether it is advisable for the attorney to forego live testimony and opt for judicial notice. In the past, the courts have judicially noticed scientific propositions about a wide range of expert topics such as radar, intoxication tests, fingerprints, palm prints, firearms identification, handwriting comparisons, DNA typing, blood splatter evidence, magnetometers and syndromes. (Giannelli & Imwinkelried, Scientific Evidence, � 1-2, at 4-5 (3d ed. 1999)). It is true that scientific propositions in these areas are hardly matters of common knowledge, but the modern scope of judicial notice is not limited to such matters. (McCormick, Evidence, �� 329-30 (5th ed. 1999)). Contemporary evidence law recognizes a second basis for judicial notice, the so-called “verifiable certainty” principle. St. Louis Baptist Temple Inc. v. FDIC, 605 F.2d 1169, 1172 (10th Cir. 1979); McCormick, supra, at � 330 (“facts capable of certain verification”); Korn, Law, Fact, and Science in the Courts, 66 Colum. L. Rev. 1080, 1089 (1966). Federal Rule of Evidence 201(b) governs judicial notice in federal practice. The Advisory Committee Note to Rule 201(b) discusses the proper subjects for judicial notice and gives “radar evidence of speed” as an example. While “verifiable certainty” is a convenient shorthand expression, certainty is not the standard. That is not what the governing statute says. Federal Rule of Evidence 201(b) reads: “A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” The word, “certainty,” appears nowhere in the statutory text. The text refers to facts that are “not subject to reasonable dispute” and “sources whose accuracy cannot reasonably be questioned.” Even more importantly, the U.S. Supreme Court’s landmark decision in Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993), precludes reading Rule 201 as requiring a showing of true certainty. Prior to Daubert, American law tended to reflect the simplistic, popular belief that at least in the hard sciences such as physics, chemistry and biology, absolute certainty was attainable. The Age of Reason had promoted the naive view that a rigorous use of systematic, scientific methodology could enable the human intellect to discover the inexorable laws that supposedly governed all phenomena. Farrell, “ Daubert v. Merrell Dow Pharmaceuticals Inc..: Epistemology and Legal Process,” 15 Cardozo L. Rev. 2183, 2193 (1994). Modernly, though, the understanding is that the universe is partially chaotic and indeterminate. In Daubert, a number of scientific organizations filed amicus briefs to educate the Court on the limits of the scientific process. e.g., Brief Amici Curiae of Physicians, Scientists, and Historians of Science in Support of Petitioners at 7, Daubert (No. 92-102). JUSTICE BLACKMUN AND THE SCIENTIFIC ENTERPRISE In his lead opinion in Daubert, Justice Harry Blackmun took those lessons to heart. He outlined a realistic understanding of the scientific enterprise. After describing the process of formulating hypotheses and conducting experiments to falsify or verify the hypotheses, the justice wrote: “[A]rguably, there are no certainties in science.” Id. at 590. Scientific investigation cannot verify any proposition to the point of absolute certainty. It is always possible to conduct a further experiment, and thus the possibility of falsification persists. In his opinion, Blackmun cited Karl Popper’s work, “Conjectures and Refutations: The Growth of Scientific Knowledge” (5th ed. 1989). One of Popper’s essential points is that no matter how much research has been conducted to date, a scientific proposition can be accepted only tentatively or provisionally. O’Connor, “The Supreme Court’s Philosophy of Science: Will the Real Karl Popper Please Stand Up?,” 35 Jurimetrics J. 263, 268-70 (1995). Given the Daubert Court’s recognition of the limits of the scientific process, true “certainty” is an impossibly high standard. “Evidence Law Visits Jurassic Park: The Far-Reaching Implication of the Daubert Court’s Recognition of the Uncertainty of the Scientific Enterprise,” 81 Iowa L. Rev. 55, 71-73 (1995). What is the soundest test for the propriety of judicial notice under Federal Rule 201(b)(2)? Professors Christopher Mueller and Laird Kirkpatrick hit close to the mark when they suggest that the judge should inquire whether the alleged scientific truth has been validated “beyond reasonable dispute.” Mueller and Kirkpatrick, Evidence, � 2.4, at 84 (1995). Even though a showing of general acceptance is no longer a foundational requirement under Daubert, proof of general acceptance for a substantial period of time ordinarily qualifies a proposition for judicial notice. As Dean McCormick argued in the original, 1954 edition of his classic treatise, general acceptance is the appropriate threshold for judicial notice. McCormick, Evidence, � 170, at 363 (1954). In footnote 11 of his opinion, Blackmun described a judicially noticeable fact as one that is “firmly established.” If the attorney can marshal texts, articles and expert affidavits to establish the validity and general acceptance of a scientific proposition for judicial notice, the proposition is ripe for judicial notice. Assume that a scientific proposition could be judicially noticed. As a matter of tactics, should the attorney request judicial notice and forego presenting live testimony at trial? Even when the proposition is judicially noticeable, there are a number of tactical considerations that the attorney ought to weigh before moving under Rule 201. To begin with, how critical is the issue that the judicially noticeable proposition relates to? If another issue is likely to be the basis for the pitched battle at trial, it makes sense to save money by going the judicial notice route on the issue that the scientific proposition concerns and invest that money in live testimony on the more lynchpin issue. Judicial notice can help the attorney conserve resources on marginal questions — resources that can be more profitably expended generating testimony on the real battleground issue. How impressive would the live expert testimony be? The attorney should consider such factors as how stellar the witness’s credentials are, how charismatic the witness’s personality is and how impeachable the witness is. Suppose that the witness is board- certified in the relevant subspecialty, has a dynamic persona and has no skeletons in his or her closet. The attorney ought to think long and hard about bypassing the opportunity to call such a witness to the stand. The presentation of that witness could not only help the attorney prevail on the specific issue that the witness’s testimony addresses; the testimony could also generally enhance the credibility of the attorney’s case. How will the judicial notice instruction be worded? In federal practice, there is a much larger payoff for judicial notice in civil cases. The subsection in point, Rule 201(g), provides: “In a civil action or proceeding, the court shall instruct the jury to accept as conclusive any fact judicially noticed. In a criminal case, the court shall instruct the jury that it may, but is not required, to accept as conclusive any fact judicially noticed.” The Report of the House Committee on the Judiciary explains: “Rule 201(g) as received from the Supreme Court provided that when judicial notice of a fact is taken, the court shall instruct the jury to accept that fact as established. Being of the view that mandatory instruction to a jury in a criminal case to accept as conclusive any fact judicially noticed is inappropriate because contrary to the spirit of the Sixth Amendment right to a jury trial, the Committee [revised] this subsection, allowing a mandatory instruction in civil actions and proceedings and a discretionary instruction in criminal cases.” (House Comm. on Judiciary, H.R. Rep. No. 650, 93d Cong., 1st Sess., p. 6 (1973)). If the case is pending in state court, the attorney must research the question of whether state evidence law permits a mandatory instruction. Some jurisdictions with evidence codes patterned after the Federal Rules have adopted the approach codified in the final version of Federal Rule 201(g). For instance, North Carolina Rule 201 draws the same distinction between civil and criminal cases. In contrast, Delaware Rule of Evidence 201(g) reads: “Upon request, the court shall instruct the jury to accept as conclusive any fact judicially noticed.” The provision purports to apply across the board to both criminal and civil actions. Finally, how forcefully is the judge likely to read the instruction to the jury? Some judges drone through instructions. If the choice is between that type of instruction and powerful testimony by a charismatic expert with outstanding credentials, live testimony is probably preferable. However, if the attorney knows that the judge in question delivers instructions clearly and emphatically, the instruction could be the wiser choice. Today litigators are under intense pressure from judges to shorten their trial presentations and from their clients to reduce the size of their litigation budgets. Judicial notice can be an effective tool for achieving both objectives. After Daubert, no judge should insist on a showing of “certainty” as a requisite for judicial notice; proof of general acceptance ought to suffice. When general acceptance is provable, the trial attorney should consider the judicial notice option before leaping to the conclusion that he or she needs to spend resources necessary to present live expert testimony. Edward J. Imwinkelried is a professor of law at the University of California at Davis and the co-author of “Scientific Evidence” (3d ed. 1999).

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