Evidence Code Section 802: The Neglected Key to Rationalizing the California Law of Expert Testimony
Edward J. Imwinkelried
University of California, Davis - School of Law
David L. Faigman
University of California Hastings College of the Law
February 26, 2009
Loyola of Los Angeles Law Review, Forthcoming
The recent LOCKHEAD LITIGATION CASES presented the California Supreme Court with an opportunity to clarify the law of expert testimony in that jurisdiction. Unfortunately, although the cases were pending before the court for several years, ultimately the court dismissed the case without reaching the merits. One of the important questions presented was whether the California courts may enforce uncodified restrictions on the admissibility of such testimony. In the past, the courts have sometimes imposed such limitations without squaring the limitations with the statutory scheme of the California Evidence Code. In this article, the authors argue that some of those limitations were sensible, sound restrictions. More importantly, the authors contend that the reference to "law" in Evidence Code section 802 empowers the judiciary to enunciate and enforce decisional restrictions. So construed, section 802 can serve as the basis for rationalizing the law of expert testimony in California.
Number of Pages in PDF File: 22Accepted Paper Series
Date posted: February 26, 2009
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