Evidence

The survey this year focuses on significant decisions in the area of privilege and expert opinion. In United States v. Smith, the court explicitly rejected a journalist's First Amendment privilege for non-confidential "work product" information in a criminal case. In United States v. Robinson, a case involving the attorney-client privilege, the court analyzed unusual and complex issues concerning (1) the confidentiality of statements by lawyer and client regarding the client's attempt to employ the lawyer, and (2) whether the client's nonverbal conduct-possessing and delivering a document to the lawyer-was assertive, and thus protected by the privilege, or nonassertive.

In the area of expert testimony, the survey examines two troubling decisions regarding the scope of the Supreme Court's Daubert principle, under which trial courts perform a gate-keeping role by deciding questions concerning the reliability of expert testimony. In Watkins v. Telesmith, Inc., the Fifth Circuit held that judges must evaluate the validity and reliability of even "non-scientific" expert testimony, thereby extending Daubert to all expert testimony. In Moore v. Ashland Chemical, Inc., a divided en banc Fifth Circuit held that a physician cannot express an opinion on causation, however well-grounded in the principles and methodologies of clinical medicine, unless that opinion is fully corroborated by the Daubert hard science factors. Both decisions transfer to trial judges significant power traditionally exercised by juries to assess the reliability of expert testimony.