Expert Witness rules Flashcards
What does FRE 701 require of lay witness opinions?
Lay witness (not offering expert testimony) is limited to testimony which is:
1.) Based on witness perception
2.) Material
3.) Not specialized testimony
What are the factors for admissibility of expert testimony under FRE 702 (think crim investigation)
1.) Would testimony be helpful for trier of fact (i.e. bears on some fact or issue in dispute)
2.) The testimony is supported by facts and data
3.) The testimony is based on reliable scientific principles
4.) expert reliably applied those scientific principles to the facts of the case
Can an expert ONLY be a professional?
No. Anybody with specialized knowledge can be an expert (i.e. gang member on prison slang, mechanic on the operation of a car)
Can professional experts be impeached for bias based on their fee agreement?
Yes.
What must proponent of expert witness do in order to show that the expert testimony will be helpful and is based on reliable principles, and the qualifications of the witness?
Proponent must lay foundation.
Are experts able to testify as an expert OUTSIDE of the scope of their qualifications?
No. only an expert within scope of their qualifications.
What is the Frye test for expert testimony?
Whether the testimony is based on a scientific principle which is generally accepted by the relevant scientific community
What is the Daubert test for expert testimony?
1.) Is the method able to be tested for reliability
2.) Has the method been subjected to peer review or publication
3.) Known/Potential rate of error
4.) existence and maintenance of standards of control
5.) is it generally accepted by the scientific community
MAKES THE JUDGE THE ARBITER OF VALID SCIENTIFIC PRINCIPLES
What are other considerations under Daubert for expert testimony?
1.) Whether the testimony grows naturally and directly from research conducted outside of litigation
2.) If the witness came to an unfounded conclusion
3.) Whether in their testing the witness was just as careful as usual
4.) Has the witness taken in account for other plausible explanations?
5.) whether the field is generally known to give the kind of results the expert is proposing
What party bears the burden to show that their expert witness satisfies Daubert and FRE 702?
The proponent.
Who makes the determination on whether an expert is reliable?
The Judge, usually in a pre-trial hearing
Under FRE 703 may an expert base testimony on personal observations?
Yes. If the expert would generally reasonably rely on such observations when forming an opinion.
If a proponent would like to admit expert testimony based on personal observations which are NOT generally relied on when forming an opinion in their field, what must the proponent show? (BONUS WHAT IF OPPONENT WANTS TO BRING IN THE SAME OBSERVATIONS?)
That probative value substantially outweighs prejudicial effect.
AND
Opponent can bring them in no issue
Is expert testimony automatically objectionable because it touches on the “ultimate issue?” (i.e. elements in a tort case)
No.
Under the Hinckley rule, may an expert testify that a CRIMINAL DEFENDANT would have a specific mental state which is an element of the crime?
(BONUS: MAY they testify that members of a group would GENERALLY have a specific mental state)
No. they cannot testify to a specific mental state which is an element of a crime in a criminal case
BUT
Yes an expert can testify that members of a group (i.e. gang members or thieves would generally have a mental state in a certain situation)
Under FRE 705 does an expert first have to state the underlying facts and data supporting their testimony before tetsifying?
No. Unless specifically ordered by court or questioned during cross.
May a court appoint an expert witness?
Yes.
If a court appoints an expert witness who may cross examine that witness?
Both parties.
MUST the court disclose to the jury that a witness is appointed by the court at its own discretion?
No. but they are permitted to
