The original voucher plan allowed up to 1.5 percent of Milwaukee public school students to attend any private nonsectar-ian school of their choice.. In 2006 the Florida Supreme Court rul
Trang 1and place of the meeting in local newspapers.
School board meetings give the public an opportu-nity to express opinions on educational policy
State statutes set forth minimum qualifica-tions for public school teachers Most states require full-time teachers to have a four-year degree from a college or university and to have completed a student-teaching program States may add other prerequisites, such as physical and psychological examinations and drug tests
Upon completing all the prerequisites, a teacher may obtain the license or permit necessary to teach in a particular state
States require public school teachers to complete a probationary period before they receive tenure In the context of employment, tenure is a status that carries with it certain rights and protections, the most important of which is the protection from summary dis-missal A teacher who has gained tenure status
Private School Vouchers:
Church vs State
The specifics of school tuition
voucher systems vary from
pro-gram to propro-gram, but generally such
systems offer parents of schoolchildren a
tax-funded voucher that is redeemable at
the educational institution of their
choice The vouchers are issued yearly
or at some other regular interval, and
they pay for a certain amount of tuition
fees each year at nonpublic and
alterna-tive charter schools The most
contro-versial programs allow parents to use the
publicly funded vouchers to pay tuition
at a religious school
Private school vouchers implicate at
least two provisions in the U.S
Consti-tution: the establishment and free
exer-cise of religion clauses in the FIRST
AMENDMENT According to the U.S
SU-PREME COURT, the establishment clause
prohibits the federal government and the
states from setting up a religious place of
worship, passing laws that aid religion,
and giving preference to one religion or
forcing belief or disbelief in any religion
(Everson v Board of Education, 330 U.S
1, 67 S Ct 504, 91 L Ed 711[1947])
Private school vouchers have been
chal-lenged under the establishment clause,
because they involve a form of
govern-mental support that may be used for
religious-oriented activities
Critics of private school vouchers
have charged that taxpayer support for
religious schools is a patent violation of
the establishment clause Critics also note that because vouchers do not cover the entire amount of tuition at a private school, the option of private school remains out of reach for the lowest-income students Opponents of private school vouchers further claim that vou-chers rob public schools of funds because funding is based in part on student enrollment Finally, critics maintain that vouchers implicate other constitutional provisions, such as theEQUAL PROTECTION clause of the FOURTEENTH AMENDMENT, because they provide taxpayer funds to institutions that may discriminate on the basis of race, religion, disability, or socioeconomic status
Supporters of private school vou-chers have argued that voucher systems are actually protected by the First Amendment According to advocates, the First Amendment, with its guarantee
of the free exercise of religion, protects vouchers because they give devoutly religious parents the same rights as less devout parents: public funding for the education of their children In this view, educational systems without private school vouchers violate the First Amend-ment by discouraging religion and plac-ing devout parents at a disadvantage
Supporters contend that vouchers merely provide some balance of rights between devoutly religious parents and less de-vout or nonreligious parents
Other supporters of private school vouchers focus on the aspect of choice Whereas public schools are increasingly perceived as inadequate and dangerous, private schools are viewed by many as offering safe, high-quality education In response to these perceptions, legislators have offered private school vouchers as a means of escape from public schools Supporters of private school vouchers assert that they offer potential benefits for impoverished children Under some proposals, private school vouchers would give a limited number of low-income families another choice for their chil-dren's schooling
Proponents of private school vou-chers cite such political philosophers as JOHN STUART MILL, THOMAS PAINE, and Adam Smith as early advocates of school vouchers Mill, Paine, and Smith did, in fact, argue that the fairest and most efficient way to fund public education would be to give parents money that they could spend on tuition at a school of their choice Detractors counter that these views received no attention until
1955, the year after the Supreme Court outlawed racial SEGREGATION in public schools in BROWN V BOARD OF EDUCATION
OF TOPEKA(347 U.S 483, 74 S Ct 686, 98
L Ed 873 [1954]) According to many voucher opponents, the real driving force behind private school vouchers is an effort to facilitate the flight of white
Trang 2may not be terminated from a teaching position
without the benefit of a lengthy procedure The
termination process may include a detailed
account of reasons for the termination, an
opportunity for the teacher to correct any
problems, a hearing with school district
admin-istrators, review and judgment by school district
administrators, and, finally, a meeting with the
school board, which votes on whether the
teacher should be dismissed Teachers who
have not attained tenure have no recourse for a
firing In any case, a public school teacher can only be terminated for cause, or some substan-tial, articulable reason
A teaching license may be revoked if the teacher engages in conduct that demonstrates unfitness to teach The prohibited conduct varies with different states, school districts, and school boards A criminal conviction that involves
MORAL TURPITUDE, such as a conviction for theft, dishonesty, or sexualASSAULT, generally is a valid ground for revocation of a teaching license
persons from city schools that have large
nonwhite student populations
Proposals for private school voucher
systems have been rejected by courts and
defeated at the polls, but voucher
advo-cates have been unrelenting In 1998, in an
8-1 ruling, the U.S Supreme Court
refused to hear a challenge to the
Wisconsin school voucher system, which
was upheld as constitutional by the
Wisconsin Supreme Court in Jackson v
Benson (218 Wis 2d 835, 578 N W 2d
602[1998]) While the Court's action set
no national legal precedent, it signaled a
willingness by the Court to permit vouchers
Wisconsin had been using a voucher
system since 1989, but in 1995 the
Wisconsin legislature amended the law
The original voucher plan allowed up to
1.5 percent of Milwaukee public school
students to attend any private
nonsectar-ian school of their choice The new
program allowed use of the vouchers for
enrollment in sectarian private schools,
and it increased allowable student
enroll-ment to 15 percent But most significant
was the mandate that monies would no
longer be paid directly to the chosen
schools Instead, a state check would be
paid to the student's parent or guardian,
who would endorse the check and forward
it to the school of choice Opponents
challenged the new law, claiming that it
violated the establishment clause The
Wisconsin Supreme Court disagreed It
concluded that the statute did not
pro-mote religion, but rather provided parents
with a“religious-neutral benefit.”
The U.S Supreme Court took up
vouchers again in Zelman v
Simmons-Harris (536 U.S 639, 122 S Ct 2460, 153
L Ed 2d 604[2002]) The Court, in a 5-4 decision, upheld the constitutionality of a voucher program established for Cleve-land, Ohio The voucher program pays scholarships based on family income, with a maximum annual payment of
$2,250 per child The parents are sent a check that may be used to pay tuition at private and parochial schools For the 1999–2000 school year, approximately 3,700 children enrolled in the program, with 60 percent of the children from families at or below the poverty level Of the 56 schools that participated, 46 were church-affiliated and actively taught Christian doctrines; 96 percent of the scholarship students attended the reli-gious schools The curriculum of these schools intertwined religious beliefs and secular topics
After a parent filed suit in federal court challenging the law, the district court ruled the voucher program uncon-stitutional The Sixth Circuit Court of Appeals upheld this decision, basing its ruling on a 1973 Supreme Court deci-sion, Committee for Public Education v
Nyquist (413 U.S 756, 93 S Ct 2955, 37
L Ed 2d 948 [1973]) The Court in Nyquist struck down a New York tuition reimbursement plan that provided low-income parents with partial reimburse-ment for sending their children to private elementary and secondary schools only
The Supreme Court overturned the Sixth Circuit decision Chief Justice WILLIAM REHNQUIST, in his majority opinion, ruled that the program did not violate the establishment clause Rehnquist stated
that the“program is entirely neutral with respect to religion” because “it provides benefits directly to a wide spectrum of individuals, defined only by financial need and residence in a particular school district.” The law “permits such indivi-duals to exercise genuine choice among options, public and private, secular and religious.”
Proponents of vouchers saw Zelman
as a major victory They believed that the decision cleared the way for similar voucher programs throughout the United States Opponents reiterated their concerns that voucher programs would take away public education dollars from school systems and divert them to private schools In 2006 the Florida Supreme Court ruled that a state school voucher program was unconstitutional under its state constitution A universal school voucher program was enacted by the Utah State Legislature in 2007, but voters passed a REFERENDUM repealing the law before it became effective As of 2009, only a handful of states had enacted some type of school voucher program Only 61,000 of 50 million U.S students attend school with a voucher
FURTHER READINGS Bolick, Clint 2003 Voucher Wars: Waging the Legal Battle over School Choice Washing-ton, D.C.: Cato Institute.
Moe, Terry M 2001 Schools, Vouchers, and the American Public Washington, D.C.: Brookings Institution.
CROSS REFERENCE Religion.
Trang 3Schools and school districts have a great deal
of control over public school students Rules and regulations can vary from school to school and range from restrictions on appearance and hair length to prohibitions on electronic transmission devices, or beepers Schools may not implement unreasonable rules, however Before a student can be suspended from school for a lengthy time period, the school must give the student notice of the intent to suspend and an opportunity to be heard by school officials Students may not be forced to pray in school or to pledge allegiance to the U.S flag Teachers may inflict CORPORAL PUNISHMENTto control, train, or educate a student but may use only such force as is necessary for those purposes The amount of force that is permissible varies according to the situation, with careful consideration given to the student’s age and maturity A teacher may use more force on
an older, physically mature high-school student than on a younger, less mature student Despite the general acceptance by the courts of some measure of corporal punishment, the threat of
LITIGATIONmakes corporal punishment a poten-tially risky behavior
Beginning in the 1990s, school boards adopted zero-tolerance polices toward drugs and weapons on school grounds Violations of
ZERO TOLERANCE policies typically lead to
federal Drug Free School Act and Gun Free School Act require the expulsion and arrest of students who bring illegal drugs and firearms to school At the heart of these policies and laws is the desire to protect students and teachers and
to prevent illegal activities from taking place on school district property
However, school districts have broadened zero tolerance to include an array of infractions, including the wearing of clothing associated with GANGS, and threats directed at other persons Zero-tolerance policies have attracted critics, who contend that overly rigid inter-pretations of the rules, coupled with severe punishments, can lead to disproportionate results In 2001, the AMERICAN BAR ASSOCIATION
(ABA) issued a statement in which it criticized zero-tolerance rules for failing to take into account the individual circumstances of each case or the individual student’s history The ABA called for the end of such rigid policies Nevertheless, the courts generally support school district zero tolerance policies, especially when drugs or weapons are the issue
School districts have the right to require students to take drug tests if they wish to participate in athletic and extracurricular activi-ties The U.S SUPREME COURT, in Board of Education, Pottawatomie County v Earls, 536 U.S 822, 122 S.Ct 2559, 153 L.Ed.2d 735 (2002), concluded that the drug-testing pro-gram was reasonable under the FOURTH AMEND-MENT because it furthered the school district’s
“important interest in preventing and deterring drug use among its schoolchildren.” Moreover, the court found that violation of student privacy interests was minimal
School districts are also not bound by rigid rules of privacy when it comes to having students grade each other’s papers and tests The Supreme Court, in Owasso Independent School District No I-011 v Falvo, 534 U.S 426,
122 S.Ct 934, 151 L.Ed.2d 896 (2002), reviewed the scope of the federal Family Educational Rights and PRIVACY ACT OF 1974 (FERPA) 20 U.S.C.A § 1232 (g), which regulates the release
of student education records The Court rejected the claim that peer grading violated FERPA To rule otherwise would “force all instructors to take time, which otherwise could
be spent teaching and in preparation, to correct
an assortment of daily student assignments.”
Public elementary and secondary schools Private elementary and secondary schools a
1970 1980 1985 1990 1995 2000 2006
Year
Digest of Education Statistics, 2008.
Enrollment in Public and Private Schools, 1970 to 2006
45.9
5.4
0
10
20
30
40
50
60
40.9
5.3 39.4
5.5
41.2
5.6 44.8
5.9
47.2
6.2 49.3
6.1
a
Beginning in fall 1980, data include estimates for an expanded universe of private schools.
Therefore, these totals may differ from figures shown in other tables, and direct comparisons
with earlier years should be avoided.
ILLUSTRATION BY GGS
CREATIVE RESOURCES.
REPRODUCED BY
PERMISSION OF GALE, A
PART OF CENGAGE
LEARNING.
Trang 4The court concluded that Congress would never
have meant to“intervene in this drastic fashion
with traditional state functions.”
A school board has power only over the
public schools within its school district
Pri-vate schools must comply with generally
applicable federal, state, and local laws, but they are privately owned and operated and are not obligated to follow the rules and regulations
of the school district in which they are located
Private schools are not governed by the U.S
Constitution and state constitutions in the same way that public schools are Constitutions
Charter Schools: The Educational
Petri Dish
M
B
ost families think that they have only three
choices for the education of their school-age
children: a sectarian school or other form of private
school that charges tuition, a free public school, or
home schooling In many states there is a fourth
option: a charter school Charter schools do not
have a religious agenda and are free of cost, but
they differ from the typical public school Although
charter schools are governed by the public school
district in which they are located, they are free of
many of the constraints imposed on other public
schools in the district
Charter schools are created to be innovative
and experimental in nature and to serve as models
for future changes in ordinary public schools The
classes offered by charter schools may differ in
substance from classes in public schools, and the
teachers may use new, alternative approaches to
education Charter schools represent an opportunity
to experience a form of experimental, alternative
schooling that was previously open only to students
who could afford alternative private schools or who
could be educated at home Parents also like
charter schools because they have a say in the
school's administration
Charter schools usually are run by a board
comprised of the teachers in the school and a few
of the students' parents The board makes its own
decisions on-site Unlike other public schools, a
charter school does not have to seek approval from
the school district or school board before it can take
action To teach English literature, for example, the
teachers at a charter school might discard the
traditional texts prescribed for other public schools
and assign only contemporary poetry They might
even decide that their students should study poetry
by attending open poetry readings or by setting up their own regular poetry readings
The first charter school legislation was passed
in Minnesota in 1991 (Minn Stat Ann §§ 120.064, 124.248 [West 1996]) Since 1991 approximately half
of the states have enacted some form of charter school legislation The details vary, but the pro-grams share the basic goal of creating a limited number of schools where teachers may experiment with a variety of learning techniques The schools have a high degree of independence, but they are all results oriented Thus, each school must show a state or local governmental education agency that its students are making satisfactory progress A state may, for example, require that students in charter schools pass a yearly achievement test to prove that they are receiving a well-rounded education
By virtue of their experimental nature, charter schools are highly individualistic Some schools focus on a particular area of study, such as computers, the environment, the arts, or aeronau-tics A school that emphasizes computers, for instance, will have a large number of personal computers and many teachers who specialize in computer education Other schools are designed for certain types of students, such as teenage students who have dropped out before earning their high school degree
FURTHER READING Ericson, John, et al 2001 Challenge and Opportunity: The Impact of Charter Schools on School Districts Washing-ton, D.C.: Office of Educational Research and Improve-ment, U.S Dept of Education/GPO.
Trang 5actions of government Public schools are funded by governments and so must answer
to constitutions, but private schools are not funded by public monies, so their actions are not deemed governmental in nature
Public school districts have little involve-ment with private schools for another reason:
the Establishment Clause of the FIRST AMEND-MENT Under the Establishment Clause, Con-gress may not make any laws respecting the establishment of, or prohibiting the free exercise
of, religion The Establishment Clause has been made applicable to the states by the U.S
Supreme Court, which has interpreted the clause to mean that public schools should be free of religious influences This does not mean that public schools can have no connection with private schools In many school districts, public schools share buses and textbooks with private schools, and these arrangements have not been declared unconstitutional In 1997, in Agostini v
Felton, 521 U.S 203, 117 S Ct 1997, 138 L Ed
2d 391, the Supreme Court reversed its decisions in Aguilar v Felton, 473 U.S 402,
105 S Ct 3232, 87 L Ed 2d 290 (1985) and School District of the City of Grand Rapids v Ball,
473 U.S 373, 105 S Ct 3216, 87 L Ed 2d 267 (1985) and held that a public school teacher may teach disadvantaged students in a private school classroom if the legislation authorizing such activity contains safeguards that prevent the teacher from advancing religion
Many states have set up programs that challenge the limits of the Establishment Clause Voucher programs are an example of education-related legislative experimentation with the Establishment Clause Under a voucher program, the state provides taxpayer money to parents and guardians of public school students
to be used to send the students to religious or private schools The Supreme Court, in Zelman
v Simmons-Harris, 536 U.S 639, 122 S.Ct
2460, 153 L.Ed.2d 604 (2002), upheld the constitutionality of an Ohio program that provided low-income Cleveland parents tax-supported vouchers worth $2,250 per pupil, which they could use to transfer a child to a participating private school of the family’s choice The court stated that“Cleveland’s pilot program permits individuals to exercise genuine choice among options public and private, secular and religious.” The decision cleared
programs
School districts do not have power over sectarian private schools, but they do have authority over home schools Home schooling
is a form of education provided by parents or guardians By 2007, 1.5 million children were home-schooled in the U.S
The growing popularity of charter schools puts additional administrative burdens on school districts Charter schools do not have a religious agenda and are free of cost, but they differ from the typical public school Although charter schools are governed by the public school district in which they are located, they are free of many of the constraints imposed on other public schools in the district The first charter school legislation was passed in Minne-sota in 1991 By 2009 there were more than 4,000 charter schools in the U.S., serving over one million students
Charter schools are created to be innovative and experimental in nature and to serve as models for future changes in ordinary public schools The classes offered by charter schools may differ in substance from classes in public schools, and the teachers may use new, alterna-tive approaches to education They usually are run by a board comprising the teachers in the school and a few of the students’ parents The board makes its own decisions on-site Unlike other public schools, a charter school does not have to seek approval from the school district or school board before it can take action However, each school must show a state or local governmental education agency that its students are making satisfactory progress A state may, for example, require that students in charter schools pass a yearly achievement test to prove that they are receiving a well-rounded education
Schools and school districts continually adapt their policies, rules, and regulations to keep pace with societal changes and to meet the needs of students and the community Curric-ula, grades, attendance requirements, and age standards vary from district to district and even from school to school
The federal government imposed new requirements on local school districts when it enacted the No Child Left Behind Act of 2001 (NCLB) The act, which was proposed by
Trang 6President GEORGE W BUSH, contained sweeping
reforms for the U.S public school system and
was centered on four basic principles: increased
accountability by school districts, increased
flexibility and local control, expanded options
for parents, and an emphasis on proven
teaching methods
Under the NCLB, states have developed
learning standards for students and have
insti-tuted annual testing to ensure that the standards
have been met Schools must make Adequate
Yearly Progress in test scores to continue to
receive federal aid If they fail to meet these
standards, they may be closed Test results for
each school in the United States are published
yearly, which places pressure on school districts
to improve failing schools By 2009, NCLB
continued to generate debate over its
effective-ness Proponents pointed to rising test scores
throughout the country, while critics charged
that teachers were forced to“teach to the test” so
students’ test scores would continue to rise
FURTHER READINGS
Abernathy, Scott 2007 No Child Left Behind and the Public
Schools Ann Arbor: Univ of Michigan Press.
Green, Preston C., and Julie F Mead 2003 Charter Schools
and the Law: Establishing New Legal Relationships.
Norwood, Mass.: Christopher-Gordon.
Sugarman, Stephen D., and Emlei M Kuboyama 2001.
“Approving Charter Schools: The Gate-Keeper
Func-tion.” Administrative Law Review 53 (summer).
Yudof, Mark G., David L Kirp, and Betsy Levin 2001.
Educational Policy and the Law 4d ed San Francisco:
Wadsworth.
CROSS REFERENCES
Abington School District v Schempp; Brown v Board of
Education of Topeka, Kansas; Civil Rights; Education Law;
Engel v Vitale; In Loco Parentis; Integration; School
Desegregation.
SCIENTER
[Latin, Knowingly.] Guilty knowledge that is
sufficient to charge a person with the consequences
of his or her acts
The term scienter refers to a state of mind
often required to hold a person legally
accountable for her acts The term often is
used interchangeably with mens rea, which
describes criminal intent, but scienter has a
broader application because it also describes
knowledge required to assign liability in many
civil cases
Scienter denotes a level of intent on the part
of the defendant In Ernst and Ernst v
Hochfelder, 425 U.S 185, 96 S Ct 1375, 47 L
Ed 2d 668 (1976), the U.S Supreme Court described scienter as “a mental state embracing intent to deceive, manipulate, or defraud.” The definition in Ernst was fashioned in the context
of a financial dispute, but it illustrates the sort of guilty knowledge that constitutes scienter
Scienter is relevant to the pleadings in a case
Plaintiffs and prosecutors alike must include in their pleadings allegations that the defendant acted with some knowledge of wrongdoing or guilt If a legislative body passes a law that has punitive sanctions or harsh civil sanctions,
it normally includes a provision stating that
a person must act willfully, knowingly, inten-tionally, or recklessly, or it provides similar scienter requirement Legislative bodies do not, however, always refer to scienter in statutes
In the Ernst case, the investors in a brokerage firm brought suit against an account-ing firm after the principal investor committed suicide and left a note revealing that the brokerage firm was a scam The investors brought suit for damages against the brokerage firm’s accounting firm under sections 10(b) and 10b-5 of the Securities Exchange Act of 1934 (15 U.S.C.A § 78a et seq.), which makes it unlawful for any person to engage in various financial transgressions, such as employing any device, scheme, or artifice to defraud, or engaging in any act, practice, or course of business that operates as aFRAUDor deceit upon any person in connection with the purchase or sale of any security
Significantly, the Securities Exchange Act does not mention any standard for intent The courts had to decide whether a party could make a claim under the act against a person without alleging that the person acted inten-tionally, knowingly, or willfully
The investors in Ernst did not allege that the accounting firm had an intent to defraud the investors Rather, they alleged only that the accounting firm had been negligent in its accounting and that the NEGLIGENCEconstituted
a violation of the Securities Exchange Act The Supreme Court ruled that an allegation of negligent conduct alone is insufficient to prove
a violation of the Securities Exchange Act
According to the Court, the language in the act reflected a congressional intent to require plaintiffs to prove scienter on the part of the defendant to establish a claim under the act
Trang 7also constitute scienter The definition of reckless includes conduct that reasonable persons know
is unsafe or illegal Thus, even if a defendant did not have actual knowledge that his behavior was criminal, scienter may be implied by his reckless actions
In some cases the level of scienter required to find a defendant liable or culpable may fluctu-ate In Metge v Baehler, 762 F.2d 621 (1985), a group of investors brought suit against a bank, alleging that the bank had aided and abetted
a securities fraud operation To establish a defendant’s liability for aiding and abetting
a securities fraud transaction, the plaintiff must prove that there was aSECURITIES LAW violation, that the defendant knew about the violation, and that the defendant substantially assisted in the violation In sending the case back to the trial court, the U.S Court of Appeals for the Eighth Circuit stated that in a case alleging aiding and abetting, more scienter is required if the plaintiff has little proof that the defendant substantially assisted in the violation The court noted that the bank seemed blameworthy only because it failed to act on possible suspicions of impropriety and that the bank had no duty to notify the plaintiffs about the actions of others
In such a case, the court advised that“an alleged aider-abettor should be found liable only if scienter of the high ‘conscious intent’ variety can be proved Where some special duty of disclosure exists, then liability should be possi-ble with a lesser degree of scienter.”
In some cases or claims, a plaintiff need not prove that the defendant acted with any scienter
These cases or claims are based on STRICT LIABILITY statutes, which impose criminal and civil liability without regard to the mental state
of the defendant For example, a statute that prohibits the sale of cigarettes to minors may authorize punishment for such a sale even if the seller attempted to verify the buyer’s age and believed that the buyer was not a minor Courts have held that a legislative body may not authorize severe punishment for strict liability crimes because severe punishment is generally reserved for intentional misconduct, reckless conduct, or grossly negligent conduct
In United States v Wulff, 758 F.2d 1121 (1985), the U.S Court of Appeals for the Sixth Circuit declared that the felony provision of the
MIGRATORY BIRD TREATY Act, 16 U.S.C.A § 703
the sale of part of a migratory bird a felony without proof of scienter According to the court, eliminating the element of criminal intent in a criminal prosecution violates the
DUE PROCESS CLAUSEof theFIFTH AMENDMENTto the U.S Constitution unless the penalty is relatively small and the conviction does not gravely besmirch the reputation of the defendant The penalty in the act authorized two years in prison and a $2,000 fine, and the court considered that punishment too onerous to levy against a person who had acted without any scienter
FURTHER READINGS Bard, Lawrence R 1992 “A Distinct-Responsibility Ap-proach to Accountants ’ Primary Liability under Rule 10B-5 ” George Washington Law Review 61 (November) Hodges, Clarissa S 2002 “The Qualitative Considerations of Materiality: The Emerging Relationship between Mate-riality and Scienter ” Securities Regulation Law Journal
30 (spring).
Karmel, Roberta S 2001 “‘Wharf,’ the Reform Act and Scienter ” New York Law Journal (December 26) Langevoort, Donald C 2006 “Reflections on Scienter.” Lewis & Clark Law Review 10 (spring).
CROSS REFERENCE Aid and Abet.
SCIENTIFIC EVIDENCE Evidence presented in court that is produced from scientific tests or studies
Scientific evidence is evidence culled from a scientific procedure that helps the trier of fact understand evidence or determine facts at issue
in a judicial proceeding Under rule 702 of the
FEDERAL RULES OF EVIDENCEand similar state court rules of evidence, “a witness qualified as an expert by knowledge, skill, experience, training,
or education” may testify and offer opinions in court if “scientific, technical, or other special-ized knowledge will assist the trier of fact to understand the evidence or to determine a fact
in issue.” Article VII of the Federal Rules of Evidence contains other rules on EXPERT TESTI-MONY and scientific evidence All states have rules on expert testimony and scientific evi-dence that are similar to the rules in article VII Expert testimony on scientific evidence is different from ordinary testimony from layper-sons A lay witness may testify to inferences and give opinions only if they are rationally based upon the witness’s perceptions of the subject of the testimony Experts, by contrast, may give
Trang 8opinions and testify about possible inferences
based in part on information obtained from
secondhand sources and not from observation of
the object of the testimony For example, a
layperson would not be allowed to take the
witness stand and offer an opinion on a plaintiff’s
injury unless the individual had witnessed
relevant information regarding the injury
How-ever, a doctor who is certified as a specialist in the
particular injury could take the stand and
offer opinions on the injury based not only on
an examination of the plaintiff but also on
secondhand information that is normally relied
on by experts in that particular field of medical
study
One of the most important issues that arises
in expert testimony is which scientific procedures
a court should accept as evidence Many
scientific procedures are not seriously in dispute
and are accepted by courts with little or no
inquisition into their validity Examples include
fingerprint tests for purposes of identification,
blood tests, breathalyzer tests for alcohol
con-sumption, and ballistics tests of bullets and their
impact areas These scientific procedures are so
widely accepted that a court may take JUDICIAL
NOTICEof the procedure’s validity Judicial notice
means that the parties in the case do not have to
present evidence to the court to establish the
validity of the scientific procedure In some
instances legislatures have specifically authorized
the use of scientific tests, such as breathalyzer
tests for suspected drunk drivers
Whether they are judicially noticed or
legislatively mandated, scientific tests that are
universally accepted must be presented by a
qualified expert A person is established as a
qualified expert before the court through
questioning by the attorney who is using the
witness as an expert The attorney asks a series
of questions to establish that the witness has
adequate education and training to testify as an
expert—a process called laying a foundation for
the witness Once the court is convinced that
the witness is an expert on the procedure or
subject matter that will be presented as
evidence, the witness gives an expert opinion
to the exact procedures that were used or the
factual circumstances that arose in the case at
hand For example, assume that a person sues a
doctor forMEDICAL MALPRACTICE, arguing that the
defendant failed to set a broken bone properly
If the plaintiff offers a bone specialist as an
expert witness on the issues surrounding the care he received from the defendant, the expert witness must testify about the witness’s creden-tials and give details about the plaintiff’s treatment
Some scientific tests and examinations that are not universally accepted are nevertheless generally considered reliable Some examples are neutron activation analysis to determine the identity of goods, voiceprints to determine a person’s identity, and genetic testing or DNA analysis These types of scientific procedures may be accepted in the medical communities, but they are not so established that they may be judicially noticed as automatically valid sources
of scientific evidence They may be admitted as evidence, but only after an expert witness has testified to the validity of the test In determining whether to admit scientific evidence from procedures that are not universally accepted, a court must ask whether the test is reliable A technique’s reliability depends on a number of factors, including whether the technique can be
or has been tested, whether it has been subjected
to peer review, whether the test procedures have been published, whether the test has a margin of error and, if so, at what rate, and whether the technique, as applied, conformed to existing standards for the test (Daubert v Merrell Dow Pharmaceuticals, Inc., 509 U.S 579, 113 S Ct
2786, 125 L Ed 2d 469[1993])
In Kumho Tire Co., Ltd v Carmichael, 526 U.S 137, 119 S Ct 1167, 143 L Ed 2d 238 (1999) the U.S Supreme Court ruled that the Daubert standards govern not just the admissi-bility of scientific evidence in federal court, but should be applied to all witnesses seeking federal court approval to testify as an expert
Thus, the Supreme Court found that a pur-ported expert on tire failure was subject to a Daubert inquiry before he could be permitted
to testify on the subject in a products liability trial, even if some of his proffered testimony was not wholly “scientific.” The lower court had attempted to draw a distinction between scientific expert for which the Daubert standards did apply and a technical expert for which the Daubert standards did not apply By expanding the DAUBERT TEST, the Court reemphasized the trial court’s broad discretion in matters of expert testimony
In some instances courts are reluctant to admit certain scientific evidence because the
Trang 9sufficiently reliable to be used as evidence Such procedures include POLYGRAPH and chemical tests that have been created to determine whether a person is telling the truth If all parties agree that testimony derived from such procedures shall be admissible, however, a court
is free to allow the evidence to be introduced
In any case, regardless of the level of acceptance of a particular scientific procedure, the scientific evidence presented must be relevant to the issue at hand Furthermore, the scientific evidence must have been obtained in a manner that is consistent with the way such evidence is normally obtained For instance, assume that a physicist intends to testify to the speed of the defendant’s vehicle in a personal injury case stemming from a car accident If the physicist used different methods from those used by other physicists in determining a vehicle’s speed, the court may refuse to allow the physicist to testify as to the vehicle’s speed
An expert witness giving testimony on scientific evidence may offer opinions on issues related to that evidence An expert witness may also give an opinion on the ultimate issue in the case Under rule 704 of the Federal Rules of Evidence, however, an expert witness testifying with respect to the mental state or condition of
a criminal defendant may not state“an opinion
or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or
of a defense thereto.” This rule, which is applied
by courts only in criminal cases, was approved
by the U.S Congress in 1984, largely in response to the outcome of the criminal prosecution of John Hinckley, who attempted
to assassinate PresidentRONALD REAGANin 1981
Hinckley was charged with attempted assassina-tion, assault on a federal officer, and use of a firearm in the commission of a federal offense, but was found not guilty by reason of insanity after the jury heard testimony from a psychia-trist who declared that Hinckley could not be found guilty because he lacked the knowing mental state required for a conviction on the charges
The weight given to scientific evidence may vary according to the particular test that yielded the evidence One party’s expert testimony may
be convincing, but it may not be dispositive of the case because the other party may have
the same evidence and come to different conclusions Experts have become indispensable
to the vast majority of litigated cases, and many cases, civil and criminal alike, come down to a battle between experts One notable exception
to this trend is the PATERNITY case, in which blood test results or DNA test results can establish the ultimate issue in the case This is true, however, only if the parties in the paternity case agree that the particular tests will be conclusive and if the tests show that the individual named as the father could not be a parent of the child in question If the tests show that the individual named as the father could be the parent, the test results will not dispose of the case, and the parties will have to present further evidence
Courts have the discretion to appoint an expert witness to testify to scientific evidence Under rule 706 of the Federal Rules of Evidence and similar state court rules of evidence, a court may appoint an expert to present evidence on a particular topic and order compensation for the expert’s time and effort Typically, in a civil case, the parties must apportion the costs as the court directs In just compensation cases under theFIFTH AMENDMENTand in criminal cases, the court orders payment for the expert out of government funds
One of the most well-known experts on scientific evidence in the United States is Barry Scheck, a criminal defense lawyer who rose to prominence during the 1995 O.J SIMPSON
murder trial as a member of Simpson’s so-called “Dream Team.” In 1992 he and fellow Dream-Team member Peter Neufeld opened the National Association of Criminal Defense Lawyers’ Innocence Project, a nonprofit legal clinic at theBENJAMIN N.CARDOZOSchool of Law
in New York Through testing ofDNA EVIDENCE, the Innocence Project has helped exonerate 127 wrongly convicted inmates Scheck, 43, has chronicled the stories of his exonerated clients
in books and on the lecture circuit He also assisted Colorado prosecutors and police offi-cers investigating the Jon-Benet Ramsey murder case
FURTHER READINGS Guidotti, Tee L., and Susan G Rose 2001 Science on the Witness Stand: Evaluating Scientific Evidence in Law, Adjudication, and Policy Beverly Farms, Mass.: OEM Press.
Trang 10Masters, Brooke A 2000 “Helping Those Who Might Be
Wrongfully Imprisoned; Lawyers, Students Pursue
New Trials in Questionable Cases.” Washington Post
(December 7).
Moenssens, Andre A., and Carol E Henderson 2007.
Scientific Evidence in Civil and Criminal Cases 5th ed.
New York: Foundation Press.
CROSS REFERENCES
Fingerprints; Forensic Science; Insanity Defense.
SCINTILLA
A glimmer; a spark; the slightest particle or trace
“Scintilla of evidence” is a metaphorical
expression describing a very insignificant or
trifling item of evidence The common-law rule
provides that if there is any evidence at all in a
case, even a mere scintilla, that tends to support
a material issue, the case cannot be taken from
the jury but must be left to its decision
A court may not enter a DIRECTED VERDICT
where there is a scintilla of evidence which
would support a contrary conclusion However,
the scintilla of evidence upon which a case must
be sent to the jury must be real, material,
pertinent, and relevant evidence, not speculative
and theoretical deductions
CROSS REFERENCE
Directed Verdict.
SCIRE FACIAS
[Latin, Made known.] A judicial writ requiring a
defendant to appear in court and prove why an
existing judgment should not be executed against
him or her
In the law, scire facias is a judicial writ that
is brought in a case that has already been before
a court Writ is the old English term for a
judicial order Some states still use the term A
scire facias writ commands the person against
whom it is brought to appear before the court
and show why the record should not be resolved
in favor of the party who brought the writ
The scire facias writ originated in England,
and its use was adopted by the American
colonists In eighteenth-century England, the
writ was used to repeal letters patent Letters
patent were letters written by the king or queen
that granted inventors exclusive patent rights
over their inventions Any person who thought
a patent was invalid based on false information
or the existence of a prior invention could ask
the royal Court of Chancery to request the
presence of the patent holder to justify the patent If there was a genuine dispute about the validity of the patent, the patent holder could request a trial before a jury in the Court
of King’s Bench The jury resolved any issues of fact, and then the case was sent back to the Chancery The chancellor made the final judgment on whether to revoke the patent
The scire facias writ did not survive in patent law Under modern law, only a person with a case or controversy with respect to a particular patent may challenge the patent Also,
a claim of patent invalidity is not tried before a royal court but a federal patent court However, the issue of patent validity may be tried before a jury, much like the old scire facias writ
In modern practice, the writ of scire facias is used in the enforcement and collection of judgments When a plaintiff in a civil case obtains a money judgment against a defendant, the court order to pay the judgment may expire after a certain number of years if the judgment remains unpaid State and federal laws allow the plaintiff to make a motion to the court before the time period expires to continue the effect of the court’s order If the plaintiff fails to make such a motion, she may file a writ of scire facias
to revive the judgment The defendant would then have to appear before the court and explain why the judgment should not be revived If the defendant has already paid the plaintiff, or if the defendant has evidence that he owes the plaintiff nothing, the defendant may present evidence and shift the burden of proof
to the plaintiff
If the defendant is unable to defend his failure to pay the judgment, the court will order execution of the judgment The court may order the defendant to submit to a financial status examination, to sell property to satisfy the judgment, or to take other measures to satisfy the judgment
The writ of scire facias has been abolished on the federal level and in most states Plaintiffs may revive an expired or dormant judgment by filing
a civil claim in a court of general jurisdiction and asking for revival of the judgment The courts that have eliminated the writ have found its complex procedures unsuited to the needs of modern society
In some jurisdictions that still permit a scire facias writ, the writ has fallen into disuse
In Connecticut, for example, the judicially