24 - Expert Testimony 702, 704, 706 Flashcards
Expert Test 2 threshold issues
- Is the proffered testimony a proper subject matter for expert testimony? If the answer is “yes,” the next question follows 2. Is this witness qualified in this subject matter? There is typically no requirement that an expert be called as a witness on a particular issue. Malpractice cases, however, frequently require expert testimony to establish the standard of care.
Subject Matter Requirement
Helpfulness standard - for instances where expertise is not needed — i.e., the commonplace — and another standard for judging when the testimony is too unreliable.
Commonplace - whether expert testimony “will help the trier of fact to understand the evidence or to determine a fact in issue” — is a more liberal formulation of the subject matter requirement than that found in CL (Rule 702 rejects “necessity” as the appropriate test.)
Unreliability - Case examples
4 approaches can be gleaned from the cases:
(1) the Frye “general acceptance” test
(2) a relevancy approach
(3) the Supreme Court’s reliability approach, as set forth in Daubert v. Merrell Dow Pharm., Inc.,
(4) other reliability tests.
Frye test -
- The general-acceptance standard was subsequently used to decide the admissibility of a plethora of techniques, including voiceprints, neutron activation analysis, gunshot residue tests, bite mark comparisons, psycholinguistics, truth serum, hypnosis, blood analysis, hair comparison, intoxication testing, and DNA profiling
- justified on reliability grounds: “The requirement of general acceptance in the scientific community assures that those most qualified to assess the general validity of a scientific method will have the determinative voice
- Criticism - First, there are problems associated with applying the standard. For example, DNA analysis covers several fields (molecular biology and population genetics). In which is general acceptance required? Both? In addition, is acceptance by scientists rather than technicians required? If polygraph examiners are defined as the relevant field under Frye, polygraph results would be admissible because there is “general acceptance” in the community of polygraph examiners. Second, there is also a concern that reliable evidence would be excluded under Frye while courts awaited general acceptance in the scientific community. In short, the general-acceptance standard is too conservative. Third, “[p]erhaps the most important flaw in the Frye test is that by focusing attention on the general acceptance issue, the test obscures critical problems in the use of a particular technique.”55 Each technique is different, and a “one-size-fits-all” general-acceptance test may overlook crucial issues.
- no longer the majority rule, it is still followed in several jurisdictions, including California, Illinois, Minnesota, New Jersey, New York, Pennsylvania, and Washington. Because these are populous states and most crimes are prosecuted in state courts, Frye remains an important test.
McCormick - Relevancy Approach
- McCormick argued that a special test, such as general acceptance, was not necessary and that the traditional evidentiary rules on relevancy and expert testimony should be applied to scientific facts.57 In effect, qualifying the expert presumptively qualifies the technique used by that expert. Because most trial judges do not possess scientific backgrounds, the judge “will generally be forced to accept the probative value of the evidence as what a qualified expert testifies it to be
- MOST LAX STANDARD, and few, if any, states presently follow it. This approach was implicitly rejected by the Supreme Court in Daubert, which requires the trial judge to determine reliability in addition to relevancy.
Drawbacks - “The major flaw in the relevancy analysis is its failure to recognize the distinctive problems of scientific evidence. The judge frequently is forced to defer to an expert, thereby permitting admissibility based on the views of a single individual in some cases.”59 The Supreme Court implicitly rejected this approach in Daubert, which requires the trial judge to determine reliability in addition to relevancy.60 Few, if any, states follow this rule today.
Daubert Trilogy -
Daubert - Reliability Test
General Elec. Co. v. Joiner
Kumho Tire Co. v. Carmichael
Reliability Test - Supreme Court rejected the Frye test and substituted a reliability approach. In performing the Daubert “gatekeeping function,” the trial court may consider a number of nonexclusive factors. The Court identified several factors: (1) testability, (2) peer review and publication, (3) error rate, (4) maintenance of standards, and (5) general acceptance.
- In 2000, Rule 702 was amended to codify Daubert and Kumho Tire. The Advisory Committee Note lists a number of additional factors: (1) whether the underlying research was conducted independently of litigation, (2) whether the expert unjustifiably extrapolated from an accepted premise to an unfounded conclusion, (3) whether the expert has adequately accounted for obvious alternative explanations, (4) whether the expert was as careful as she would be in her professional work outside of paid litigation, and (5) whether the field of expertise claimed by the expert is known to reach reliable results.
General Elect - second opinion in the Daubert trilogy. The Court ruled that the proper standard for reviewing a trial court’s admissibility decision under Daubert was an abuse-of-discretion standard. Nevertheless, some states use a de novo standard of review.
Kumho - Court extended Daubert’s reliability requirement to nonscientific testimony under Rule 702. In addition, the Court acknowledged the relevance of the Daubert factors in determining reliability in this context.
Daubert - SC made this a stringent standard (at least in civil cases)
On the one hand, the Daubert Court referred to Frye as an “austere” test and cited its earlier cases, emphasizing the liberal thrust of the Federal Rules. On the other hand, there was the “gatekeeper” language and the “reliability requirement” upon which a more restrictive test could be built. In any event, a decade later it became clear that Daubert had erected a formidable barrier to the admissibility of expert testimony at least in civil cases. In Weisgram v. Marley Co., which involved a summary judgment in a wrongful death action against a manufacturer of an allegedly defective baseboard heater, the Court wrote: “Since Daubert, moreover, parties relying on expert evidence have had notice of the exacting standards of reliability such evidence must meet.” As amended in 2000, Rule 702 now contains an explicit reliability requirement.
702 Qualifications
- A witness may be qualified as an expert “by knowledge, skill, experience, training, or education.” The expert need not be the best witness on the subject, nor an outstanding practitioner in the field. The expert generally need not be licensed in the field, although this factor is relevant to the qualification issue. Nor must the expert’s qualifications match those of the opposing side’s expert. Experience alone may qualify a witness to express an opinion. There is no “degree” requirement, per se. In deciding the qualification issue, the trial judge has wide discretion.
Ultimate Issue Rule 704
Rule 704(a) abolishes the “ultimate issue” prohibition, under which a witness was precluded from giving an opinion on the ultimate issues in a case. Abolition of the rule prohibiting opinions, lay or expert, on ultimate issues does not mean that all such opinions are admissible. It means only that admissibility is governed by Rule 701 (lay opinions) and Rule 702 (expert opinions), both of which use a helpfulness standard.
Rule 704(b) is an exception to Rule 704(a). It prohibits ultimate expert testimony on insanity and other ultimate mental states of a criminal defendant.
Court-Appointed Experts
Rule 706 recognizes the authority of the trial judge to appoint expert witnesses and technical advisors.
Right to Defense Experts
The appointment of an expert for an indigent criminal defendant may be required on due process grounds. In Ake v. Oklahoma, the Supreme Court held that “when a State brings its judicial power to bear on an indigent in a criminal proceeding, it must take steps to assure that the defendant has a fair opportunity to present his defense.”
Expert Opin on Credibility
- not admissible because the opinion exceeds the scope of the expert’s specialized knowledge and therefore merely informs the jury that it should reach a particular conclusion.”
BUT - ## The court went on to rule that expert psychiatric testimony that the defendant suffered from “pseudologia fantastica” that caused him to make grandiose statements similar in nature to the statements the prosecution was seeking to use against him was admissible under Rule 702.
Expert Opinion on the Law
admissibility depends on the purpose for which the testimony is offered.37 For example, the use of experts to testify about legal ethics is often admitted.38
Expert Opinion on the Law
admissibility depends on the purpose for which the testimony is offered.37 For example, the use of experts to testify about legal ethics is often admitted.38
Sub matter - Reliability of Expert Evidence
The reliability of evidence derived from a scientific theory or principle depends upon three factors: (1) the validity of the underlying theory, (2) the validity of the technique applying that theory, and (3) the proper application of the technique on a particular occasion. In short, neither an invalid technique nor a valid technique improperly applied will produce reliable results
Methods of proof - The validity of a scientific principle and the validity of the technique applying that principle may be established through (1) judicial notice, (2) legislative recognition, (3) stipulation, or (4) the presentation of evidence, typically expert testimony.
