To combat questionable prosecution “expert” evidence, defense lawyers need to have a thorough understanding of Federal Rule of Evidence 702 and companion rules. This presentation provides practitioners with a framework for Article VII (Opinions and Expert Testimony) of the Federal Rules of Evidence, summarizes defense favorable cases, and presents arguments and tips on how to spot and avoid the most common ways the prosecution abuses expert testimony.  This area is of vital importance now considering the recent amendments to Federal Rule of Evidence 702.

Brief of the American Civil Liberties Union (ACLU), American Civil Liberties Union of Massachusetts, (ACLUM) Electronic Frontier Foundation (EFF), Massachusetts Association of Criminal Defense Lawyers (MACDL), and National Association of Criminal Defense Lawyers (NACDL) as Amicus Curiae in Support of Respondent.

Important amendments to the Federal Rules of Evidence came into effect on December 1, 2023: Amendments to Rule 106 (rule of completeness), 605 (exclusion of witnesses) and 702 (testimony by experts). These amendments will bring significant opportunities and challenges for defense lawyers. 

Brief of Amici Curiae National Association of Criminal Defense Lawyers, American Civil Liberties Union, and American Civil Liberties Union Foundation of Arizona In Support of Petitioner

Powerpoint slides by Gregory J. Davis, MD, FCAP. Presented at the NACDL Post-Dobbs Defender Skills Summit in July 2023

Powerpoint slides by Mishka Terplan, MD MPH FACOG DFASAM. Presented at NACDL's webinar Post Roe: Building Defenses in Pregnancy-Related Prosecutions in July 2022

When representing men accused of domestic violence, do lawyers consider hiring an expert for the defense? The authors note that experts can help attorneys and jurors better understand the role of stereotypes and how they play a significant role in domestic violence cases. Despite recent research finding that domestic violence is not necessarily a crime against women, the traditional ways of thinking about domestic violence continue to inform how cases are prosecuted.

Although voluntariness is a mainstay of the U.S. legal system, voluntariness and its flip side, coercion, are ill-defined. Likely because of this ambiguity, admissibility decisions for contested confessions have been inconsistent. Some modern-day, often-used interrogation techniques (e.g., investigators feigning friendship) are coercive, even if they appear innocuous and non-adversarial.

Presented by: Detective James Trainum (ret.), Washington, DC, Metropolitan Police Department; and Deja Vishny, Homicide Practice Group Coordinator and Deputy Training Director, Wisconsin State Public Defender

The aftermath of an accidental fire can often look the same as the aftermath of an intentionally set fire. This confounding fact has led to many false accusations. John Lentini writes that an arson determination should be viewed with great skepticism if it is based on (1) “low burning,” (2) a fire that burned “hotter than normal” or “faster than normal,” or (3) the appearance of “pour patterns” on a floor without a positive finding of an ignitable liquid in a laboratory test.

Modern technology used by the police (including drones and mobile device forensic tools) and ever-changing drug laws make suppression hearings more challenging for the defense team. Advocates must invoke the Fourth Amendment in a world much different from the one in which the amendment was drafted. The defense attorney must create a well-developed record in support of a client’s claims. One method of developing the record is the use of experts to explain changing science and technology.

Comments to the Judicial Conference of the United States Practice & Procedure Committee regarding proposed amendments to Federal Rules of Evidence 106, 615, and 702.

Comments to the Judicial Conference Advisory Committee on Criminal Rules regarding proposed amendments to Rule 16 of the Federal Rules of Criminal Procedure.

With increasing frequency since the 1970s, psychologists have been admitted as expert witnesses to educate factfinders about the many facets of eyewitness memory. The authors provide an overview of three distinct topics about which eyewitness experts typically testify: eyewitness identification, repressed memory, and child witnesses.

This month Matthew T. Mangino reviews The Cadaver King and the Country Dentist: A True Story of Injustice in the American South by Radley Balko and Tucker Carrington.