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In Chambers

| Fall 2016

events can occur only at the trial level.

As a general rule, appellate courts do not hear live

testimony, so literature considered for the first time

at the appellate level is not subject to live comment

by practicing experts and cannot be tested in the cru-

cible of the adversarial system. Internet sources have

come under criticism for their potential unreliability,


and one of the core criticisms against the use of such

sources by appellate courts is that doing so usurps the

trial court’s fact-finding function: “When an appellate

court goes outside the record to determine case facts

... it ignores its function as a court of review, and it

substitutes its own questionable research results for

evidence that should have been tested in the trial court

for credibility, reliability, accuracy, and trustworthi-



This criticism applies with full force to the use

of outside-the-record texts and treatises, regardless of

the medium in which they are found.


Uniformity of application is desirable in the scientific

evidence context. Trial courts should not have to rein-

vent the wheel regarding the validity or reliability of a

well-established scientific theory or technique every

time evidence invoking that theory or technique is prof-



Appellate courts can promote the efficient use

of judicial resources, provide guidance to trial courts,

and help ensure uniformity of decision making by es-

tablishing the validity and reliability of various scientific

theories and techniques as a matter of judicial prece-



These goals can be accomplished in several ways

without resorting to independent research.

First, some scientific theories and techniques are so

well-established that their validity and reliability are mat-

ters of common knowledge within the legal community.

An example would be the principles of thermodynamics.


When a theory or technique is well-established, an ap-

pellate court may take judicial notice on that basis with-

out a factfinding hearing and without consulting any sci-

entific literature.These types of theories or techniques

will often (though not always) have the pedigree of a

long history of recognition within the judicial system.


Second, an appellate court can decide that the valid-

ity or reliability of a particular theory or technique has

been soundly established through the comprehensive lit-

igation at the trial level.The most obvious setting would

be the trial proceedings from which the appeal arose,


but an appellate court could base its decision on trial

proceedings that occurred in another case, where the

appellate court has access to the trial record


or where

the opinion in an appellate court of another jurisdiction

sets forth a trial record substantial enough from which

to draw the requisite conclusions.


Finally, where the great weight of authority holds that

a particular theory or technique is valid or reliable, an

appellate court could hold the matter as established,

inferring either that the proposition is wellestablished

as a matter of common knowledge in legal circles or

that comprehensive litigation must have occurred at

some point for the proposition to be so widely cited.


These three methods can also be used to deter-

mine whether a scientific theory is invalid or whether

a technique is unreliable. In any event, where one of

the three methods is satisfied, the appellate court can

make a declaration that will govern future cases. This

declaration would not be immune to future challenges

but the burden would be on the challenging party to

substantiate his or her position.

Where none of the three methods can be satisfied,

an appellate court should decline to make a declara-

tion that is applicable to future cases and simply de-

cide whether, based on the evidence before it, the trial

court abused its discretion in that particular case.This

means that there may be instances in which a party

simply has not offered enough evidence to support a

conclusion that the theory or technique is valid or reli-

able.And there may also be cases in which a party has

offered sufficient evidence to resolve the issue in his or

her own case, but the issue has not been adequately lit-

igated to enable the appellate court to establish a rule

governing all cases. Following this course may some-

times delay the formulation of a uniform rule regarding

the validity of a scientific theory or the reliability of a

technique, but it will ensure that those decisions are

made under circumstances most likely to yield an ac-

curate result.


(Keller, continued from page 5)