Evidence Code Section 802: The Neglected Key to Rationalizing the California Law of Expert Testimony

22 Pages Posted: 26 Feb 2009  

Edward J. Imwinkelried

University of California, Davis - School of Law

David L. Faigman

University of California Hastings College of the Law

Date Written: February 26, 2009

Abstract

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.

Suggested Citation

Imwinkelried, Edward J. and Faigman, David L., Evidence Code Section 802: The Neglected Key to Rationalizing the California Law of Expert Testimony (February 26, 2009). Loyola of Los Angeles Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=1349779

Edward J. Imwinkelried (Contact Author)

University of California, Davis - School of Law ( email )

Martin Luther King, Jr. Hall
Davis, CA CA 95616-5201
United States

David L. Faigman

University of California Hastings College of the Law ( email )

200 McAllister Street
San Francisco, CA 94102
United States

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