Expert testimony

Question 2

702: Admission of Expert Testimony

Boardwork

Answer 2

• 1. Reliable principles and methods
• 2. Technique reliably applied
• 3. Evidence fits the facts
• 4. Expert must be qualified
• 5. Rule 403 considerations

Question 3

702: Admission of Expert Testimony

Rule 702 principles

Answer 3

• 1. The judge must find that the witness qualifies as an expert
• 2. An expert is a witness who offers scientific, technical or other specialized knowledge
• 3. The testimony must help the trier of fact (jury)
     * Must fit the facts of the case
     * The “fit” requirement is stricter than mere relevance
• 4. The testimony must rest on sufficient facts or data
• 5. Reliability hurdles
     * 1. The testimony must be the product of reliable principles and methods
     
     • Must satisfy the Daubert reliability test
       * 2. The witness must have reliably applied the principles and methods to the facts of the case
     • For example, must follow protocols
       * 3. Evidence must fit the facts

Question 4

702: Expert Witnesses

Daubert reliability Test

Answer 4

• Shifts the gatekeeping role to judges, to decide whether an expert’s approach is sufficiently reliable to present to the jury.
• Judge relies upon a variety of factors (that include the previous Frye test of “general acceptance”)
  
  • Whether the theory or technique has been tested
  • Whether it has been subject to peer review and publication
  • The technique’s error rate
  • The existence of standards controlling the technique’s application
  • Whether the theory or technique has been “generally accepted” in the relevant scientific community

Question 5

702: Expert witness

Necessary to qualify as an expert:

Answer 5

• Skill
• Knowledge
• Experience
• Training
• Education

Question 6

702: Expert Witnesses

Pathway through

Answer 6

• 1. Is the evidence based on scientific, technical, or other specialized knowledge?
• 2. The trial judge serves as gatekeeper
• 3. Are the principles and methods supporting the evidence reliable? Use the Daubert test
• 4. Has the technique been reliably applied?
• 5. Does the evidence fit the facts of the case? Will it help the jury?
• 6. Is the evidence excludable under 403?
• 7. Proffered evidence that clears these hurdles is an appropriate subject for expert testimony

Question 7

Expert Witnesses

CALIFORNIA

Answer 7

CALIFORNIA HAS NOT ADOPTED DAUBERT.

• Uses a case that is more like Frye- “general acceptance” (called Kelly-Frye rule).
  
  • However, they still check for reliability.
    
    • Was the evidence made up to reach a conclusion for litigation purposes? If so, it’s not reliable.

Question 8

Qualifying Experts

Answer 8

• Stages
  
  • Stage 1. Laying a foundation
  • Stage 2. Voir Dire by opposing counsel
    
    • In practice it is extremely difficult to persuade a judge that a witness fails to qualify as an expert
  • Stage 3. Judge rules on motion to certify the witness
• Expert need not have formal education or training
  
  • An expert witness’s qualifications must closely match the testimony she offers
• The process may be shortened if the parties stipulate that the witness is an expert
  
  • But good advocacy usually means having the witness testify as to their credentials in front of the jury
• What does it take to be qualified?
  
  • Knowledge
  • Skill
  • Experience
  • Training
  • Education

Question 9

Expert Witnesses

Factual bases of expert opinions

Answer 9

• Personal knowledge
• Facts or data admitted into evidence
• Inadmissible facts or date IF they are the type reasonably relied upon by experts in the particular field
  
  • if admitted, cannot be offered for the truth of the matter

Question 10

4 special powers afforded expert witnesses

(as opposed to lay witnesses)

Answer 10

• 1. Expert witness may remain in the courtroom when other witnesses are excluded
     * Some experts rest their opinions on facts learned by watching other witnesses testify at trial
     * *experts may respond to facts in a hypothetical question posed by the examining attorney
• 2. Experts are the only witnesses who can certify documents as learned treatises under 803
     * The treatises may then be read to the jury and considered for the truth of the matter asserted
• 3. Experts may do more than give commonsense opinions.
     * They may state conclusions based on their special training or experience
• 4. Experts do not have to base their opinions exclusively on personal observations.
     * They may rely on a wide range of data, including hearsay, that is not admissible in court. As long as experts in the field reasonably rely upon such data.
     * Reliance must be reasonable. Reasonable reliance standard.

Question 11

If the facts supporting an expert’s opinion are inadmissible, the expert may not disclose those facts unless:

Answer 11

• The court determines that the probative value of admitting the facts to help the jury evaluate the expert’s opinion substantially outweighs the prejudice of admitting the facts; or
• Opposing counsel asks about the underlying facts on cross-examination

Question 12

Limits on opinion and expert testimony

704

Answer 12

• Declares that testimony is not objectionable just because it embraces an ultimate issue
  
  • HOWEVER, can’t make the legal conclusion
• Exception
  
  • Criminal cases: expert cannot give opinion about mental state or condition that constitutes an element of a crime charged or a defense. Such as intent.
    
    • Courts construe this narrowly- primarily restricts the types of words used, rather than their content
      
      • “Negligent,” “guilty beyond a reasonable doubt”
• Judges are concerned about testimony that invades the jury’s province. They admit all 3, but it is scrutinized closely to determine whether it is sufficiently helpful to the jury and avoids unfair prejudice
  
  • Expressing probabilities
  • Reporting polygraph results
  • Describing research on the reliability of eyewitness testimony