Friday, May 27, 2005

Washington Judge Hears Expert Testimony but Defers Ruling on Admissibility in Lawsuit over Gubernatorial Election

If any idea is more nightmarish, in a democracy, than having electoral contests decided by the judiciary, it may be the notion that electoral outcomes might depend on discretionary rulings on the admissibility of expert evidence. A state court judge in Washington (a Frye state) now finds himself in precisely that uncomfortable thicket, according to a story in the Seattle Times. In the pending litigation over who really won the vote in Washington's last election for governor, the trial judge has decided to hear evidence from the Republicans' expert witnesses for now, but to defer ruling on its admissibility until later.

"I can imagine how frustrated counsel has been with the court because you don't know me and you come to this court and I start making rulings which I'm sure some of you think are just not supported by any rules of evidence you've ever read," the judge told the lawyers. But the approach he has chosen is guided, he says, by the "desire to make sure the Supreme Court has as large a record as possible, for which they may not thank me, actually."

The disputed testimony is over how to estimate the impact of illegal votes by convicted felons. The Republican expert advocates a statistical method of "proportional reduction" at the precinct level. A Democratic expert says a better way to find out how the felons voted would be to ask them.


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Fed. R. Evid. 702: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.