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Evidence law has traditionally been viewed as the domain of the courts. At one time, case or decisional law was the primary source of evidence law. However, evidence law has now entered the Age of Statutes. (Guido Calabresi, “Common Law for the Age of Statutes,”(1982)). In 1975, the Federal Rules of Evidence went into effect in federal court. Moreover, 41 states have adopted evidence codes patterned directly after the federal rules. In addition, even before the enactment of the federal rules, the California Legislature had adopted a comprehensive evidence code. The Age of Statutes has arrived for expert testimony law as well as most other doctrinal areas of evidence law. To begin with, most evidence codes contain provisions generally regulating the admissibility of expert testimony, including scientific evidence. In the federal rules, the key statutes are Rules 702-06. Furthermore, there are numerous statutes controlling the admissibility of specific types of expert testimony. For example, there are statutes dealing with theories such as battered woman syndrome (Cal. Evid. Code � 1107) and techniques such as radar, intoxication testing and blood analysis. (Paul C. Giannelli et al., Scientific Evidence � 1-3 (3d ed. 1999)). During the past decade, many state legislatures have enacted legislation addressing the admissibility of DNA test results. This type of legislation poses three major questions for the litigator. Does the statute announce evidentiary standards? A legislature can prescribe rules for conducting intoxication tests without conditioning the admissibility of testimony about such testing on compliance with the rules. The legislature could promulgate such rules as part of a licensing scheme or contemplate that satisfaction of the rules would insulate a complying laboratory from tort liability. In short, a legislature can legislate about a specific scientific technique without affecting the standards governing the admissibility of testimony based on the technique. In federal practice and numerous states, there is a rebuttable presumption that legislation dealing with a specific technique does not modify the admissibility standards. In part, Federal Rules of Evidence 402 reads: “All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, or other rules prescribed by the Supreme Court pursuant to statutory authority.” Given Rule 402, to modify admissibility standards, a statute must not only prescribe rules for applying the theory or using the technique; the text of the statute or its legislative history must also manifest a legislative intent to condition admissibility on compliance with the rules. To determine whether the presumption has been rebutted, the courts look primarily to three considerations. The first is the text of the statute. The legislature can clearly manifest its intent by prefacing a list of mandatory rules with the expression, “To be admissible.” The second is the context, the other parts of the same statutory scheme. If the legislature opts to include the new statute in an evidence code, that inclusion strongly implies that the statute is intended to have an evidentiary impact. In contrast, when the legislature decides to insert the statute in a code governing the licensing of a particular type of laboratory, a court would quite properly be reluctant to infer that the statute announces a new evidentiary standard. The third consideration is extrinsic legislative history material such as advisory committee notes and committee reports. At one time the courts often allowed such material to trump the seemingly plain meaning of statutory language. However, only the statutory language has the force of law; and in the past two decades the federal and many state courts have become more skeptical of reliance on such material. Edward R. Becker & Aviva Orenstein, “The Federal Rules of Evidence After Sixteen Years — The Effect of �Plain Meaning’ Jurisprudence, the Need for an Advisory Committee on the Rules of Evidence, and Suggestions for Selective Revision of the Rules,” 60 Geo. Wash. L. Rev. (1992); Comment, “Say What You Mean and Mean What You Say: The Resurrection of Plain Meaning in California Courts,” 30 U.C. Davis L. Rev. 569 (1997). Thus, in these jurisdictions, if the statutory language did not manifest an intent to prescribe evidentiary standards, a suggestion of that intent in the legislative history might not persuade the court. Can the legislature prescribe evidentiary standards? This question is essentially one of separation of powers. Paul Giannelli, “The Proposed Ohio Rules of Evidence: The General Assembly, Evidence, and Rulemaking,” 29 Case W. Res. L. Rev. 16 (1978). Who has the final say when it comes to the rules of evidence used in trial courts — the appellate courts or the legislature? In some jurisdictions, the judiciary wields the plenary power to formulate evidentiary rules. Day v. State, 643 N.E.2d 1 (Ind. Ct. App. 1994) is illustrative. There the state legislature purported to abolish the character evidence prohibition in certain categories of cases. The state court, however, invalidated the statute. The court did so for the reason that the statute was “a nullity since it conflicts with the common-law rules of evidence” promulgated by the courts. In most jurisdictions, though, the legislature has the plenary power. The Federal Rules of Evidence are statutes. Although the U.S. Supreme Court promulgated the Federal Rules of Civil and Criminal Procedure under its rule-making authority, Congress blocked the Court’s attempt to adopt the Federal Rules of Evidence in the same fashion. Congress substantially rewrote many provisions of the draft promulgated by the Supreme Court. Is the legislation otherwise constitutional? As previously stated, comprehensive evidence codes are now commonplace in the states. Thus, the assumption in most jurisdictions is that the legislature has constitutional power to overturn judge-made evidentiary rules and prescribe new admissibility standards. The separation of powers doctrine is not the only constitutional doctrine that comes into play when a legislature purports to regulate the admissibility of testimony about a specific scientific theory or technique. The due process or jury trial guarantee can also apply. The analysis largely turns on the tenor of the specific provision being challenged. In a statute, a legislature might do several things: (1) eliminate the need for the proponent of testimony based on the technique to lay a normal Daubertor Fryefoundation; (2) foreclose the opponent from attacking the weight of the proponent’s testimony by barring evidence questioning the general trustworthiness of the technique; or (3) prevent the opponent from introducing evidence attacking the particular manner in which the technique or theory was applied in the instant case. The first type of provision usually passes constitutional muster. Although this type of statute obviates the need for the proponent to lay a normal foundation, it does not restrict the opponent’s ability to present contrary testimony. While the proponent’s evidence is deemed admissible absent a normal foundation, the jury is free to assess the weight of the evidence and to reject the testimony. The second type of provision is more troublesome. To be sure, there is some authority sustaining the constitutionality of this kind of legislation. For instance, in State v. Vega, 12 Ohio St. 3d 185, 190, 465 N.E.2d 1303, 1308 (1984), the Ohio Supreme Court ruled that since the state legislature had legislatively recognized the validity of intoxilyzers, “an accused may not make a general attack upon the reliability and validity of the breath testing instrument.” However, the prevailing view appears to be that such statutes are constitutionally infirm. Barcott v. Dept. of Public Safety, 741 P.2d 226, 228-29 (Alaska 1987); People v. Thompson, 215 Cal. App. 3d Supp. 7, 14, 265 Cal. Rptr. 105, 109 (1989); State v. Lowther, 740 P.2d 1017, 1021 (Haw. 1987). These statutes preclude the opponent from challenging the weight of the proponent’s evidence and urging the trier of fact to reject the evidence. In our system, weight determinations “are the unique province of a fact finder” such as a jury. Scully v. US Wats Inc., 238 F.3d 497, 506 (3d Cir. 2001). The jury trial guarantees in the 6th and 7th amendments constitutionalize that role. The Supreme Court’s decision in Crane v. Kentucky, 476 U.S. 683 (1986), certainly lends support to the majority view. There the Curt held that even after a trial judge had rejected a voluntariness challenge to a confession and ruled the confession admissible, the accused had a constitutional right to introduce testimony attacking the weight of the confession. If the second type of provision is unconstitutional, all the more reason to question the constitutionality of the third kind of statute. If the question is whether the legislature or the judiciary is in a better position to evaluate the general trustworthiness of a scientific technique, at least it can be argued that the legislature has superior fact-finding tools. Although the courts have to rely primarily on the evidence submitted by the parties, a legislative committee investigating a scientific theory or technique can serve subpoenas on virtually any expert. In contrast, prior to the specific occasion when a scientific technique is used to evaluate the physical evidence in a case, the legislature obviously has no information as to whether the technique was properly applied in that case. Furthermore, the issue of the use of proper test procedure is a critical one. Many of the proficiency studies of scientific analyses indicate that improper test procedure is the most common cause of misanalysis and erroneous findings. “The Debate in the DNA Cases Over the Foundation for the Admission of Scientific Evidence: The Importance of Human Error as a Cause of Forensic Misanalysis,” 69 Wash. U. L.Q. 19, 32 (1991). Although the three issues mentioned above are the primary questions posed by evidence statutes, they do not exhaust the possibilities. When a statute imposes a per se ban on potentially exculpatory testimony in criminal cases, the question arises as to whether the statute runs afoul of the accused’s 6th Amendment right to present evidence. That question was posed in United States v. Scheffer, 523 U.S. 303 (1997), where the accused attacked the constitutionality of a rule barring polygraph testimony. While the Court ultimately rejected the attack, the case produced a badly divided court — a four-justice plurality, a four-justice concurrence and a dissent. The future of such constitutional attacks in criminal cases is therefore unclear. What is clear, though, is that with the advent of the Age of Statutes in expert testimony law, we must become accustomed to statutory regulation not only of general admissibility standards for scientific evidence but also of the admissibility of testimony based on particular scientific theories and techniques. As this short article suggests, the new age will usher in a novel set of interpretive and constitutional issues for litigators. Edward J. Imwinkelried is a professor of law at the University of California at Davis School of Lawand the co-author of “Scientific Evidence” (3d ed. 1999).

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