Unfortunately, certain rules of evidence almost unique to New York law can impair a jury’s ability to effectively evaluate the merits of expert testimony. Specifically, three aspects of evidence are capable of this. Recently, Counsel Michael W. Kessler wrote an article published in the Syracuse Law Review. that addresses why this can occur and suggests ways to remedy it This is discussed in our latest blog post and you can link to the full article for more detailed information.
Rules of New York Evidence That Can Impair a Jury’s Ability to Effectively Consider the Merits of Testimony in New York
In Counsel Kessler’s article, he discusses the scope of the problem, breaks down the issues involved, and suggests a readily available fix that almost every other state and Federal court has adopted.
The rules of evidence that impair a jury’s ability to effectively consider the merits of expert testimony in New York are:
The Restricted Use of Scientific Literature at Trial – This involves barring direct use of scientific literature at trial except during cross-examination, and then only when the adverse expert witness recognizes the work as “authoritative.”
Evidence of Materials Commonly Relied Upon by Professionals in the Field as a Basis for Expert Testimony – This involves using the exception to the rule against hearsay to permit an expert to rely on materials commonly relied on in his or her profession as part of the basis for an opinion.
Establishing General Acceptance – The “Frye” Rule requires experts to demonstrate that the basis for any professional opinions is generally accepted within the applicable professional community.
How These Rules of Evidence Work
These rules of evidence are interrelated, and, in some instances, they contradict one another.
The following sections explain how this occurs and how to fix the situation-
The Restricted Use of Scientific Literature at Trial
In New York, the rules of evidence limiting the direct use of scientific or professional literature in court cases are almost unique. Traditionally, scientific literature has been considered hearsay, and therefore could not be referred directly to as a basis for expert opinion. However, both the Federal courts and almost every other state, have abandoned this approach and allow such testimony as long as someone vouches for the literature. Accordingly, in New York, unlike the Federal courts and almost every other state, scientific literature can only be brought up in court during cross-examination of an adverse witness, and even then only if the witness agrees that it is “authoritative. This gives the witness being questioned unlimited control over what information can be used and what questions can be asked. In other words, even if there is a well-respected text that specifically contradicts an expert’s testimony, the jury will not hear about that evidence unless the witness being questioned recognizes the text as “authoritative.”
The use of scientific literature is a hot topic, with some saying it could complicate things. They worry that the author of the paper isn't there to be questioned about potential issues with the research underlying it. They also argue that the jury can't evaluate the author's reliability by observing them in court. Another concern raised is that an expert referencing the literature might seem more credible than they are because one side is relying on literature and the other isn’t.
Evidence of Materials Commonly Relied Upon by Professionals in the Field as a Basis for Expert Testimony
Both Federal and New York rules of evidence allow expert witnesses to use information, even if it's second-hand, to form their opinions if it's commonly used in their field. For example, an economist can rely on government-published economic data. However, in some cases, this may contradict the rule regarding the restricted use of scientific literature because the materials commonly relied upon by professionals could include scientific literature, which the jury will not be able to hear.
Establishing General Acceptance
Under the Frye doctrine in New York, an expert can only provide opinion testimony if it has been established that the methodology used to form that opinion falls within the generally accepted standards of the relevant professional community. However, to succeed in establishing general acceptance, the expert must show the Court that there is professional literature to support his or her opinion.
Here is where the conundrum arises: Even after the Judge rules that the supportive literature establishes general acceptance of an opinion, the jury is deprived of considering the very same literature that the Judge saw. As a result, when as is usually the case, a jury must consider which of the opposing experts to credit, because of the rule prohibiting the use of professional literature there is a danger that they will base their decision on which expert is more glib rather than which expert provided the more reliable supported opinion there is an easy remedy to this problem: Adopt the approach of the vast majority of states and the Federal courts and allow the direct use of authenticated professional literature.
More About Counsel Michael W. Kessler and E. Stewart Jones Hacker Murphy LLP
Counsel Kessler’s area of expertise is medical malpractice.
He has recovered millions of dollars for his clients, including:
- 30 cases where he recovered over $2 million
- 19 cases where he recovered over $5 million
- 12 cases where he recovered over $8.5 million
- 5 cases where he recovered over $14 million
E. Stewart Jones Hacker Murphy LLP has many talented members on our team. We have been helping clients in Troy, Albany, Saratoga, Schenectady, and their surrounding communities since 1898. For over 125 years, we have provided our clients with unmatched legal services and we’re ready to do the same for you.
To learn more about our law firm and how we can help you, check out our case results and read our clients’ reviews.
Need help with a legal matter? Call us at (518) 284-3183 or contact us online today.