Class 26: Subjects for Expert Testimony, Qualifying Experts, Bases of Expert Opinions and Limits, Court-Appointed Experts - Apr. 16 Flashcards
On what basis may a witness be qualified as an expert? (Q)
A witness may be qualified as an expert based on the witness’s:
knowledge;
skill;
practical experience;
training, including on-the-job or work-related training; or
education, whether formal or informal.
There is no set test to determine whether a witness qualifies as an expert. Courts generally look at the totality of the witness’s background in light of the issues presented in the case.
What are proper topics for expert testimony? (Q/Russo)
An expert may testify on any topic, as long as the topic:
(1) involves scientific, technical, or other specialized knowledge and
(2) helps the trier of fact understand the evidence or determine a fact at issue.
(4/16)
May a witness be qualified as an expert without any formal training in the relevant subject area? (Q)
Yes. A witness may be qualified as an expert even if the witness is without any formal training or education in the relevant subject area. Any witness may qualify as an expert if he or she has sufficient knowledge, skill, experience, training, or education in the pertinent subject area.
May a single witness testify as both a lay witness and as an expert witness? (Q)
Yes. One witness may testify as both a lay witness (sometimes called a “fact witness”) and an expert witness.
Does an expert need personal knowledge of the facts about which he or she will testify? (Q)
No. Unlike a lay witness, an expert does not need personal knowledge of the facts to testify about the facts of the case. An expert’s testimony may be based on three possible sources:
(1) The expert’s firsthand observation, as in the case of a physician who treats a patient or an investigator who views accident wreckage;
(2) Facts or data provided to the expert in court, such as by an attorney asking the expert a hypothetical question during her testimony or by the expert listening to the testimony of other witnesses; and
(3) Facts or data given to the expert outside of court, such as by the parties providing an expert with reports or studies before trial.
May an expert base his or her testimony on inadmissible evidence? (Q)
Yes. Unless barred by the United States Constitution or a statute, an expert may base his or her testimony on inadmissible evidence, as long as experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject.
Under what circumstances may an expert who based an opinion on inadmissible evidence disclose that evidence to the jury on direct examination? (Q)
The proponent of expert testimony may disclose the fact that the expert opinion was based on inadmissible evidence to the jury on direct examination if the probative value of the evidence in helping the jury evaluate the expert’s opinion substantially outweighs its prejudicial effect.
May an expert base an opinion solely on facts provided to her in a hypothetical question? (Q)
Yes. An expert may base an opinion on facts provided to her in a hypothetical question.
In the hypothetical, the expert may be asked to presume that certain facts or data are true, even if that evidence is in dispute, and then give an opinion based on those facts or data. The facts or data must be independently proved during the trial.
What is an ultimate issue? (Q)
An ultimate issue is a final question that must be decided by the trier of fact, such as whether a defendant in a personal-injury action was negligent or whether a criminal defendant was sane or insane. Both lay and expert witnesses may give opinions about ultimate issues, although they must meet the requirements for opinion testimony by lay witnesses, testimony by expert witnesses, and opinions on ultimate issues.
Additionally, an expert may not testify to a criminal defendant’s mental state if the mental state is an element of the crime charged or defense asserted.
May a lay witness give an opinion on the ultimate issue in a case? (Q)
Yes. A lay witness may give an opinion on the ultimate issue in the case. The ultimate issue is the final question that must be decided by the trier of fact. Nevertheless, an opinion is not necessarily inadmissible because it relates to an ultimate issue. However, a lay witness may testify in the form of an opinion on the ultimate issue only if the opinion:
is rationally based on the witness’s perception;
will help the jury clearly understand the witness’s testimony or determine a fact in the case; and
is not based on any scientific, technical, or other specialized knowledge.
Lay witnesses may draw reasonable inferences from their own experience, as long as they use a process of reasoning familiar in everyday life. (NOF)
May an expert witness give an opinion on the ultimate issue in a case? (Q)
Yes. An expert witness may usually give an opinion on the ultimate issue in the case. The ultimate issue is the final question that must be decided by the trier of fact, such as whether a defendant in a personal-injury action was negligent. The expert witness’s opinion must meet the other requirements for admissibility of expert testimony, including helping the trier of fact understand the evidence or determine a fact at issue in the case.
This rule does have an important exception: an expert in a criminal case may not give an opinion about the defendant’s mental state if the mental state constitutes an element of the crime charged or a defense. (NOF)
What are the steps of the Daubert Test? (Russo)
(1) Has the expert’s theory ever been tested? (Falsifiability)
(2) Has the expert’s theory been subject to peer review and publication?
(3) Does the theory have a known or potential rate of error?
(4) Are there standards that control the theory’s operation?
(5) Has the scientific community accepted the expert’s theory? (4/16)
How can an attorney lay foundation for expert testimony? (Russo)
(1) Qualify the witness as an expert to testify based upon scientific, technical or specialized knowledge, education, skill, training or expertise (FRE 702)
(2) Demonstrate that the proposed testimony of the expert is based upon valid science and/or methodology, such that it is “reliable” (FRE 702 and Daubert)
(3) Demonstrate that the expert used accepted, reliable techniques to apply the scientific theory, technical or specialized knowledge (etc.) to the facts of this case (FRE 702 and Daubert)
(4) Show that the expert’s testimony will be helpful to the jury in determining some fact of consequence in the case (the “Fit” requirement of FRE 702, relevance under FRE 401 and balancing under FRE 403) (4/16)
What things do only experts get to do? (Russo)
(1) Despite exclusion order under FRE 615, experts may remain in court and observe testimony of other witnesses if experts in the field reasonably rely on such testimony in forming opinions
(2) Certify books and other reference materials as “Learned Treatises” under FRE 803(18)
(3) Testify to opinions and conclusions not based solely on their own perceptions and personal knowledge, but also on hearsay and other inadmissible evidence - if experts in the field “reasonably rely on such information in rendering opinions.” (FRE 703, 705)
(4) Be asked and answer hypothetical questions based on evidence presented at trial (FRE 611, Common Law) (4/16)
What helps proponents of expert testimony? (Russo)
(1) May elicit the expert’s opinion without first eliciting the facts and/or data upon which that opinion is based (FRE 705)
(2) If the facts and/or data relied upon by the expert in forming an opinion are otherwise inadmissible the proponent of the testimony may only disclose the facts and/or data to the jury if the probative value in helping the jury evaluate the expert’s opinion substantially outweighs the prejudicial effect (FRE 705; FRE 105) (4/16)
