Article VII. Opinions and Expert Testimony Flashcards
What are the limitations on testimony for lay witnesses?
Must be:
(a) rationally based on the witness’s perception;
(b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge within the scope of testimony by expert witnesses.
FRE 701 (2012).
What qualifies a witness as an expert?
”. . . knowledge, skill, experience, training, or education.”
FRE 702 (2012)
When may an expert testify in the form of an opinion or otherwise?
An expert may testify in the form of an opinion or otherwise, if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
FRE 702 (2012)
On what may an expert base testimony?
The expert must have been “made aware of or personally observed” the facts or data in the case. The reasonable experts in the same field must reasonably be able to rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. Any facts that would not otherwise be admissible, must be disclosed to the jury if their probative value substantially outweighs their prejudicial effect.
FRE 703 (2012)
Is opinion testimony automatically objectionable because it embraces an ultimate issue?
No. An exception exists in criminal cases: an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for hte trier of fact alone.
FRE 704 (2012).
May an expert state an opinion with the reasons justifying that opinion without first testifying to the underlying facts or data?
Yes, unless the court orders otherwise. The expert may be required to disclose those facts or data on cross-examination.
FRE 705 (2012).
What is the process for court-appointed expert witnesses?
Either by a party’s motion or on its own, a court may order the parties to show cause as to why expert witnesses should not be appointed. Additionally the court may ask the parties to submit nominations, but will not be limited to those nominations. The court may only appoint someone who consents to act.
The court may authorized disclosure to the jury that the court appointed the expert. (FRE 706(d) (2012)).
This rule does not limit a party in calling its own experts. (FRE 706(e) (2012)).
FRE 706(a) (2012).
When an expert as been appointed by the court, what role do they play?
After the court informs the expert of their duties by writing (with a copy filed with the clerk) or orally at a conference where both parties participate, the expert:
(1) must advise the parties of any findings the expert makes;
(2) may be deposed by any party;
(3) may be called to testify by the court or any party; and
(4) may be cross-examined by any party, including the party that called the expert.
FRE 706(b) (2012).
How are court-appointed experts compensated?
Court-appointed experts are entitled to reasonable compensation as per the following:
(1) in a criminal case or in a civil case involving just compensation under the Fifth Amendment, from any funds that are provided by law; and
(2) in any other civil case, by the parties in the proportion and at the time that the court directs – and the compensation is then charged like other costs.
FRE 706(c) (2012).
