EV 4

Question 1

Why is it useful for a Witness to be Designated as an Expert?

Answer 1

o Their testimony is bound by FRE 702, not FRE 701.
 This allows them to offer their opinions on the matter as it relates to their field of expertise and means that they aren’t limited to first-hand knowledge.

o Jurors tend to trust expert witnesses more than other witnesses.

o They aren’t bound by hearsay rules.

o The proponent of the expert witness will appear to be well prepared.

Question 2

Who can be an expert witness?

Answer 2

o The Advisory Committee note to FRE 702 says that “within the scope of this rule are not only experts in the strictest sense of the word, e.g. physicians, physicists, and architects, but also the large group sometimes called ‘skilled’ witnesses, such as bankers or landowners testifying to land values.”
o A prisoner could be an expert about prison slang, and a drug dealer could be an expert about drug packaging.

o The key question is whether the judge, following FRE 702, will certify a particular witness as an expert on a particular subject.

Question 3

For expert witnesses, the proponent must lay a foundation by showing that the witness:

1.
2.
3.

Answer 3

1) has particular knowledge, skill, experience, training, education, etc.;

2) is relying on valid principles or techniques that have been applied appropriately in this case; and

3) has something to offer that is useful for the jury

Question 4

What are the 3 ways of certifying an expert?

Answer 4

1. Frye Test
2. Daubert Test
3. FRE 702

Question 5

What is the Frye test for certifying an expert witness?

Answer 5

Is there “general acceptance” of the technique used within the relevant scientific community?

Question 6

What is the Daubert test for certifying an expert witness?

Answer 6

Daubert Test: Factor Test with the following factors:

1) Can the expert’s technique or theory be tested?

2) Has the technique or theory been subject to peer review and publication?

3) What is the known or potential rate of error of the technique or theory when it was applied?
o It’s better to have a 40% error rate than to have no known error.

4) Are there existence and maintenance of standards and controls?

5) Has the technique or theory been generally accepted in the scientific community?

Question 6

What is FRE 702 - Testimony by Expert Witnesses?

Answer 6

“A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that:

      * (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’s opinion reflects a reliable application of the principles and methods to the facts of the case.

Question 7

What are the recent amendments to FRE 702?

Answer 7

One amendment clarified that the proponent of expert testimony bears the burden of demonstrating, by a preponderance of the evidence, that the proposed testimony meets all the reliability requirements set forth in FRE 702. The judge, not the jury, determines whether the proponent’s showing is sufficient for admission of the expert testimony.

Another amendment required the proponent of expert testimony to demonstrate that “the expert’s opinion reflects a reliable application of the principles and methods” the expert has used. This requirement would extend the current language, which only requires that the expert reliably applied the principles and methods (e.g., through out-of-court testing), but not that of the opinion itself is a reliable application of those principles and methods.

Question 8

What is rule 703 - Bases of an Expert?

Answer 8

An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed.
If experts in the particular field would reasonably 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. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.

Question 8

What is the 1 sentence breakdown for rule 701 - Opinion and Testimony by Lay Witnesses?

Answer 8

Lay witnesses cannot testify about anything other than they have personally perceived.

Question 8

What is rule 701 - Opinion and Testimony by Lay Witnesses?

Answer 8

If a witness is not testifying as an expert, testimony in the form an opines limited to one that is:

• (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 Rule 702.

Question 9

What is the 1 sentence breakdown of rule 702 - Testimony by Expert Witnesses?

Answer 9

• Expert witnesses aren’t limited to their personal knowledge when testifying and thus are permitted to offer opinions, but their opinions are limited to their field of expertise and the techniques and theories used to arrive at these opinions must pass a factor test listed above.

Question 10

What is the 1 sentence breakdown of rule 703 - Bases of an Expert?

Answer 10

Experts can base their opinion on facts or data in the case that they’re aware of or personally observed if other experts in their field would base their opinions on those facts, but these facts can’t be disclosed to the jury unless the probative value of these facts substantially outweighs their prejudicial effect (read: Reverse 403 Balancing Test).

Note: the opponent has no trouble inquiring about underlying facts, even if they are inadmissible.

Question 11

What is rule 704 - Opinion on an Ultimate Issue?

Answer 11

(a) In General – Not Automatically Objectionable. An opinion is not objectionable just because it embraces an ultimate issue.

(b) Exception. In a criminal case, 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 the trier of fact alone.

Question 12

What is the 1 sentence breakdown for rule 704(a) - Opinion on Ultimate Issue - In General - Not Automatically Objectionable?

Answer 12

An expert witness can testify about an element of a tort claim, element of an affirmative defense, element of a crime, etc., but this testimony is still subject to the Rule 403 Balancing Test.

Question 13

What is the 1 sentence breakdown of rule 705 - Disclosing the Facts or Data Underlying an Expert?

Answer 13

An expert doesn’t have to disclose the specific facts or data that give reason to their testimony, but they do have to give reason to their testimony and can be cross-examined for the specifics.

Question 13

What is the 1 sentence breakdown for rule 704(b) - Opinion on Ultimate Issue - Exception - aka the Hinckley rule?

Answer 13

An expert witness can not testify about the mental state of a criminal defendant as it relates to the mens rea element of a crime; they could discuss that people with similar mental illnesses often experience delusions or similar statements, but they can not make definitive statements about a defendant’s intent, knowledge, etc. or lack thereof.

Question 14

What is rule 705 - Disclosing the Facts or Data Underlying an Expert?

Answer 14

Unless the court orders otherwise, an expert may state an opinion –
and give the reasons for it – without first testifying to the underlying facts or data. But the expert may be required to disclose those facts or data on cross-examination.

Question 15

What is rule 706 - Court Appointed Expert Witnesses?

Answer 15

• (a) Appointment Process. On a party’s motion or on its own, the court may order the parties to show cause why expert witnesses should not be appointed and may ask the parties to submit nominations. The court may appoint any expert that the parties agree on and any of its own choosing. But the court may only appoint someone who consents to act.
• (b) Expert’s Role. The court must inform the expert of the expert’s duties. The court may do so in writing and have a copy filed with the clerk or may do so orally at a conference in which the parties have an opportunity to participate. The expert:

  o	(1) must advise the parties of any findings the expert makes;
  
  o	(2) may be deposed by any party;
  
  o	(3) may be called to testify by the court or any party; and
  
  o	(4) may be cross-examined by any party, including the party that called the expert.

• (c) Compensation. The expert is entitled to reasonable compensation, as set by the court. The compensation is payable as follows:

  o	(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
  
  o	(2) in any 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.

• (d) Disclosing the Appointment to the Jury. The court may authorize disclosure to the jury that the court appointed the expert.
• (e) Parties’ Choice of Their Own Experts. This rule does not limit a party in calling its own experts.

Question 16

What is the 1 sentence breakdown for rule 706 - Court Appointed Expert Witnesses?

Answer 16

The court may appoint an expert witness, but they must be a willing expert and they must be justly compensated; they can then be deposed by any party, be called to testify, cross-examined, etc. and the parties will bear the costs of the appointment unless it’s a criminal case or a civil case involving just compensation under the Fifth Amendment.

Question 17

What is the Expert Witness Testimony Flowchart?

Answer 17

o Step 4. Is the witness qualified by education, experience, knowledge, or skill to render an expert opinion?

 If Yes: Go to Step 5.
 If No: The witness may not offer expert testimony (FRE 702).

o Step 5. Does the expert’s opinion derive from any of the following: (1) personal knowledge; (2) any information the expert learned in preparation for testimony; or (3) training and study?

 If Yes: The witness is qualified as an expert. Go to Step 6.
 If No: The witness may not offer expert testimony (FRE 702).

o Step 6. Does the expert’s opinion rely on inadmissible evidence?

 If Yes: Go to Step 7.
 If No. Go to Step 8.

o Step 7. Do experts in the field reasonably rely on those kinds of facts or data?

 If Yes: The expert’s opinion may be admissible even if the expert relied on inadmissible evidence. Go to Step 8.
* The fact that the expert may rely on inadmissible evidence does not mean that the expert may repeat such evidence in court, thereby serving as a conduit for inadmissible evidence. The expert may provide the otherwise inadmissible evidence only if the probative value in helping the jury evaluate the opinion substantially outweighs its prejudicial effect (Reverse FRE 403 Balancing Test). Such information may also be inquired not on cross-examination (FRE 705).
 If no: The judge as gatekeeper should reject the expert testimony.

o Step 8. Is the expert’s opinion based on sufficient facts or data?

 If Yes: Go to Step 9.
 If No: The witness may not offer expert testimony.

o Step 9. Does the expert’s opinion pass the Daubert test?

 If Yes: Go to Step 10.

     *	   The Daubert Test
              o	1) Can the expert’s technique or theory be tested?
              o	2) Has the technique or theory been subject to peer review and publication?
              o	3) What is the known or potential rate of error of the technique or theory when it was applied?
                         	It’s better to have a 40% error rate than to have no known error.
              o	4) Are there existence and maintenance of standards and controls?
              o	5) Has the technique or theory been generally accepted in the scientific community?

 If No: The witness may not offer expert testimony.

o Step 10. Did the expert apply the scientific or technical principles correctly?

 If Yes: Go to Step 11.
 If No: The witness may not offer expert testimony.

o Step 11. Is this expert testifying in a criminal case about the mental state of the accused relating to a criminal element or defense?

 If Yes: That part of the expert’s testimony is prohibited by the Hinckley Rule (FRE 704(b)).
 If No: The expert’s testimony is admissible.

Question 17

What is the Lay Witness Testimony flowchart?

Answer 17

o Step 1. Is the opinion rationally based on the witness’s perceptions?

 If Yes: Go to Step 2.
 If No: The lay opinion is not admissible (FRE 701(a)). Go to Step 4.

o Step 2. Is the lay opinion helpful to the finder-of-fact because it clarifies the witness’s testimony or helps to determine a dispute fact?

 If Yes: Go to Step 3.
 If No: The lay opinion is not admissible (FRE 701(b), FRE 403). Go to Step 4.

o Step 3. Is the witness testifying as an expert?

 If yes: The portion that is lay testimony may be admitted as such, but the expert testimony must be qualified separately and is not lay testimony. Go to Step 4.
 If No: The lay opinion is admissible.