The Weight of Evidence

Scientific advances raise innumerable questions for this country and its courts about how evidence like DNA is used. Law professor Edward Imwinkelried is leading the debate.

By Hudson Sangree

It’s a sleepy Thursday afternoon, just after lunch, and dozens of law students have trickled into King Hall’s moot courtroom carrying cups of coffee and laptop computers. They’re here for a course on trial advocacy with Professor Edward Imwinkelried, one of the country’s most renowned experts on evidence.

Imwinkelried is doing his best to keep the students awake with his insights on jury selection. “Some trial attorneys think this is the critical phase of the case,” he begins. “It’s the first and best personal contact you’ll have with the jurors and the only time the jurors can speak to you.

“But this is the phase of the trial that attorneys are usually the worst at. Judges hate it,” he says. “Why? Because attorneys lose sight of the goal, and it degenerates into a touchy-feely bonding dance in which the lawyers try to woo the jurors.”

Imwinkelried could sit at the judge’s bench in the moot courtroom and lecture from on high. Instead he sits at a plain folding table on the floor of the amphitheater-style hall, looking up at the class with his notes stacked neatly in front of him.

He lectures at a brisk pace, speaking mostly in a normal tone. Then, just when the students start to drift, he raises his nasal voice to a near shout, jolting everyone alert, as he exhorts his students to avoid certain bad mistakes that are made even by experienced trial lawyers.

One common misstep is for lawyers to use up their limited number of preemptory strikes, which allow them to eliminate jurors without specific reason, in an attempt to seat the perfect jury. Such a feat is impossible, Imwinkelried insists. To emphasize his point he calls the task not jury selection but jury deselection. “Your job is not to find your dream juror,” he tells the students. “It’s to get rid of your nightmare juror.”

Imwinkelried, 56, is a small man, bald on top, with large glasses and a droopy gray mustache. In class he wears a white short-sleeve dress shirt with a navy tie and matching slacks, reminiscent of his past days as a Catholic schoolboy. Moreover, he is obsessed—in the nerdy and somewhat haughty manner of law professors, computer programmers and record collectors—with the minutiae of his subject matter.

Nevertheless, Imwinkelried is a law student’s dream.

For one, he’s the real thing, a bona fide expert whom practicing lawyers consult for advice on some of the country’s toughest evidentiary problems. He advised lawyers on both sides of the O.J. Simpson trial, for example, and he played a key role in one of the most important cases on scientific evidence ever decided by the U.S. Supreme Court.

Imwinkelried is also a respected scholar, a remarkably prolific author of nearly 200 books, law review articles and other publications—many of them dealing with cutting-edge DNA issues. How, for example, should the law treat the DNA that we leave behind on restaurant glasses or cigarette butts? (Imwinkelried says it’s fair game for the police, because we’ve relinquished any expectation of privacy in such items.) What about giving convicted prisoners easy access to DNA testing to prove their innocence? (He says the 100-plus cases so far in which innocent people have been freed “demonstrate that DNA testing can be an antidote for the pernicious influence of racism in our criminal justice system.”)

At the moment, Imwinkelried is embroiled in the tense debate over the future of DNA testing in criminal prosecutions. With two colleagues, he wrote a controversial article last year arguing that the DNA of everyone in the country should be sampled and their genetic profiles stored in a giant database. When a crime is committed, biological evidence found at the crime scene, such as blood or semen, could then be checked against the database and a suspect quickly identified.

Such a plan is sure to cause outrage among many voters and civil liberties groups. But Imwinkelried is no right-winger. Part of his argument for the national database is that it would eliminate the racism inherent in current state and federal databases, which store only the DNA profiles of convicted criminals or arrested suspects.

“Including only those convicted or arrested creates a racially skewed collection of DNA profiles,” Imwinkelried and his co-authors wrote in an opinion piece published in USA Today. Citing U.S. Justice Department statistics, they argue: “A black man is six times more likely to be imprisoned during his life than a white man,” and thus “racial minorities are unfairly overrepresented among arrestees and convicts.”

In contrast, “a population-wide DNA database would combat both the appearance and reality of racism,” they contend. “Individuals who match crime-scene samples will be identified no matter what their race.”

On a more immediate level for students, Imwinkelried is regarded as a superb teacher. In 1999 he won the university’s distinguished teaching award, and in past years he was awarded similar prizes by both the law school and the university’s extension division.

Even more telling, an estimated 90 to 95 percent of law students take his trial skills workshop—evidence of the word-of-mouth recommendations among students that produce such high attendance in an elective law school course.

Besides trial practice, Imwinkelried regularly teaches first-year contracts, one of the toughest classes in law school. It’s a course that he loves teaching, even though the subject is not his specialty, because first-year students are so “prepared and enthused,” he says.

Imwinkelried rarely teaches evidence, however. Typically a second-year course, the introduction to the basic rules of evidence is just too frustrating for him, he says. “There’s only so much you can cover. I could spend only about 10 minutes on uncharged misconduct evidence,” he says, referring to one of his specialties, a rule that generally excludes evidence of a defendant’s past crimes, “and I’ve written a two-volume treatise on that subject.”

Students and former students say Imwinkelried is remarkable for his organization, clarity and engaging presentation—traits not always associated with law professors. “For a law student coming in the first year and looking for clarity, some kind of rhyme and reason in this strange new world, he was extraordinary,” says Daniel Boone, J.D. ’90, a former student of Imwinkelried’s who now practices law in Sacramento.

Boone and others point to Imwinkelried’s extensive work before class as a reason for his excellent presentation. “It was clear that his preparation was amazing,” Boone says.

Even before his trial practice class started, for instance, Imwinkelried had already visited the classroom, laid out a detailed outline on the blackboard and set up an overhead projector with additional notes. It’s something he does before every class.

Being unprepared is “just a huge waste of time,” Imwinkelried says. “Every half-minute that you waste writing on the blackboard or fumbling around is something precious that you squandered. I want to give the students their money’s worth and give them something of enduring value. I can’t afford to waste time.”

In addition to teaching, Imwinkelried also coaches the law school’s mock trial teams, which have won regional competitions and gone on to the national finals five times under his direction.

That Imwinkelried teaches as well as he does, writes as much as he does, consults on outside cases and also lectures widely to professional groups is astounding, say those who know him. “How he has time to do even a tenth of what he does, I have no idea,” says Kenneth Chesebro, a high-powered appeals lawyer from Austin, Texas.

It was Chesebro who discovered an article written by Imwinkelried in 1988 that laid the framework for the landmark U.S. Supreme Court case of Daubert v. Dow Merrell Pharmaceuticals. In Daubert, the nation’s highest court overturned a venerable doctrine that for decades had barred many of the latest scientific advances from the courtroom. Daubert is now one of the most celebrated court decisions on evidence and a mainstay of law school evidence courses.

“One of his many law review articles was the germ of our basic theory for Supreme Court review,” says Chesebro of the case. “He had the best analysis of any scholar on that particular point.”

Imwinkelried’s point was that the Federal Rules of Evidence, a statutory scheme adopted by Congress in 1975, had superseded the 70-year-old “general acceptance” doctrine of a case called Frye v. United States.

In Frye, decided in 1923, a federal appeals court had ruled that only scientific techniques that had been generally accepted by scientists in a particular field could form the basis for expert testimony in court. That meant that many scientific advances, including DNA testing and other valuable but relatively new techniques, were often excluded from the courtroom, leading to apparent injustices for injured plaintiffs and criminal defendants.

Such was the case in Daubert, in which two children and their parents sued in California court, alleging that the children’s birth defects had been caused by the mothers’ taking the anti-nausea drug Benedictin, marketed by Dow, while pregnant. To support their claims, the plaintiffs cited recent studies conducted on animals along with other types of scientific analyses to show a link between the drug and malformations in fetuses.

Dow, however, offered more than 30 published studies involving 130,000 human subjects to show that there was no connection between Benedictin and birth defects. Given those powerful results, the defendants argued that the newer animal and other studies cited by the plaintiffs were not admissible evidence under Frye’s general acceptance test.

Siding with Dow, a federal trial court that had taken up the case threw out the children’s lawsuit, and the Ninth Circuit Court of Appeals affirmed the decision. The children’s lawyers then appealed to the U.S. Supreme Court.

Relying on Imwinkelried’s writings and advice, Chesebro and the other plaintiffs’ lawyers argued that the Frye test had been trumped by the federal rules. That was all-important because the rules allowed judges much greater leeway than did Frye to admit expert testimony based on newer scientific techniques.

In 1993, in a ruling still hailed as a turning point in the use of scientific evidence, the Supreme Court justices unanimously agreed with Imwinkelried, even citing some of his writings in their opinion.

“Frye made ‘general acceptance’ the exclusive test for admitting expert scientific testimony,” wrote Justice Harry Blackmun for the court. “That austere standard, absent from and incompatible with the Federal Rules of Evidence, should not be applied in federal trials.”

While many state courts, including California, still rely on Frye’s general-acceptance doctrine, all the federal courts and an increasing number of states now follow the more liberal rule of Daubert.

“I thought Daubert was an excellent decision,” says Imwinkelried. “The justices really tried to grapple with the question of the modern understanding of science, and they frankly acknowledged the uncertainty at science’s outer bounds.”

Imwinkelried himself has grappled with such questions for nearly 30 years.

His fascination with evidence began when he was “practically ordered to teach” the subject while serving in the Army’s Judge Advocates General Corps at the University of Virginia. Imwinkelried himself was just a few years out of law school and had worked for a year as an Army lawyer in Vietnam. But a senior officer who witnessed Imwinkelried’s performance in a mock trial had been so impressed that he recommended Imwinkelried for teaching duty.

Imwinkelried quickly took to teaching and evidence. After the Army he joined the law school faculties of the University of San Diego and then Washington University in St. Louis. He came to UC Davis in 1985.

Since then, Imwinkelried has lived in Davis with his wife of 24 years, Cindy Clark, also a lawyer, and their two children: daughter Molly, 19, a sophomore at UCLA, and son Ken, 17, a junior in high school.

Imwinkelried’s return to Northern California was somewhat of a homecoming. He grew up in San Francisco, the son of working-class parents; his Italian mother, a grocery worker, and Swiss father, a fireman, were both second-generation Americans. Imwinkelried attended a Catholic high school and then went on to the Jesuit-run University of San Francisco, where he earned both his bachelor’s degree in political science, in 1967, and his law degree in 1969.

At that time, teaching didn’t seem like a viable career choice, he says. “I was the first one in my family to go to graduate school. It was a big thing for someone in my family just to go to the local university.”

Imwinkelried, who often writes wearing a flannel shirt with the sleeves rolled up, says his modest upbringing has influenced his practical approach to law and education. He advocates integrating the realities of legal practice into the cloistered world of the law school. And he calls subjects such as evidence and trial advocacy, which teach basic skills used by working lawyers, “blue-collar courses.”

Then with a smile, Imwinkelried recalls the time when one of his students gave a glowing evaluation to another young professor. “It said, ‘You’re going to be a great blue-collar professor like Imwinkelried,” he remembers. “I took that as a great compliment.”

Hudson Sangree is a graduate of Northeastern University School of Law in Boston and staff writer for the Los Angeles and San Francisco Daily Journals.

Photo illustration by Debbie Aldridge, UC Davis Mediaworks, and Adriana Pérez, UC Davis Editorial/Design.