On October 26, Chapman University Dale E. Fowler School of Law welcomed UCLA Law Dean Jennifer L. Mnookin as a featured guest in the 2015-2016
Chapman Dialogue Lecture Series
. Her presentation entitled “
Modular, Made-in-Advance Expert Testimony: Opportunities and Obstacles
” was followed by a discussion with Fowler School of Law Professor Mario Mainero.
Dean Mnookin identified a unique problem in the accessibility of emerging psychological expert testimony regarding eyewitness testimony and proposed a simple but path-breaking solution to ensure that more criminal defendants have an opportunity to present such testimony when it is relevant. Dean Mnookin explained that the single most prevalent issue in wrongful conviction cases is erroneous eyewitness testimony. Acknowledging that eyewitness testimony will often have value as providing accurate, reliable and legitimate grounds for conviction, such testimony can nonetheless sometimes be flawed. Increasingly, courts are allowing experts to testify about what social science research shows regarding when certain types of eyewitness testimony might raise reliability concerns, she explained. According to Dean Mnookin, such concerns especially arise regarding lineup designs, cross-racial identification, and the identified errors caused by “weapons focus” where witness observations might get skewed because of the anxiety involved with the presence of a weapon at a crime scene. She contends that experts can add some information to assist the factfinder in determining whether an eyewitness may be more or less believable in light of these scientific studies. Such expert testimony, however, is offered rarely because retaining such experts – if it’s possible to find one given the narrow pool of those specializing in the area – is very expensive for defendants.
So, Dean Mnookin’s proposed solution to this accessibility issue is to use technology to solve the problem where a neutral organization would produce “made in advance” evidentiary video modules structured like live testimony with real experts, a real defense attorney and a real prosecutor playing out the direct and cross examination on these social science issues. It works, according to Dean Mnookin, because in the vast majority of cases where this type of testimony is relevant, such evidence is not case-specific.
Dean Mnookin carefully explained many of the details of her proposed module system and defended it against anticipated concerns including hurdles that exist in the evidentiary code. Professor Mainero, one of Chapman’s experts on evidence law, presented challenging questions including examining whether the rules are necessary given the availability of other means to discredit eyewitnesses and identified possible concerns regarding practical and legal feasibility. Professor Mainero’s comments and questions engaged with the issue in a way that allowed the dialogue to proceed toward further explanations of the problem and further identification of the steps that must be taken, including potential changes to the evidence codes, before Dean Mnookin’s proposal could receive widespread adoption.
View the webcast
of the Dialogue with Dean Mnookin.
Jennifer L. Mnookin
assumed the role of Dean and David G. Price and Dallas P. Price Professor of Law at UCLA School of Law in August 2015. A leading evidence scholar and a member of the UCLA Law faculty since 2005, Dean Mnookin previously served as Vice Dean for Faculty and Research from 2007 to 2009, and Vice Dean for Faculty Recruitment and Intellectual Life from 2012 to 2013.
Dean Mnookin’s teaching focuses on evidence law and torts, as well as more specialized courses in expert and scientific evidence, wrongful convictions, and law and popular culture. She is a co-author of two well-regarded treatises,
The New Wigmore, A Treatise on Evidence: Expert Evidence
Modern Scientific Evidence: The Law and Science of Expert Testimony
. She has published extensively on issues relating to forensic science, including latent fingerprint identification, handwriting expertise, and DNA evidence, and has advocated for the need for a “research culture” in these areas. Dean Mnookin is also known for her scholarship on expert evidence more generally, as well as evidence theory, the Confrontation Clause, and visual and photographic evidence.
Dean Mnookin is the Faculty Co-Director of PULSE @ UCLA Law (Program on Understanding Law, Science & Evidence). She is currently a member of the National Academy of Sciences’ Committee on Science, Technology and Law, and was elected to the American Law Institute in 2011. She has spearheaded amicus briefs on behalf of a group of evidence professors in several recent Confrontation Clause cases before the Supreme Court; she was the primary investigator on a major grant from the National Institute of Justice to investigate the relationship between difficulty and error rate in latent fingerprint identification; and she has participated in a variety of governmental working groups related to forensic science.
About the Chapman Dialogue Lecture Series
The Chapman Dialogue Lecture Series is a special lineup of distinguished lectures by innovative and thought-provoking legal scholars as well as some of the nation’s most prominent legal practitioners. Invited speakers present their research and ideas to a wide audience of faculty, students, alumni and special guests. Each Dialogue concludes with a lively Question and Answer session, typically led by one or two discussants from among the Fowler School of Law faculty.