Term
| Is the subject matter appropriate for expert testimony? |
|
Definition
FRE 702 provides expert testimony is proper if it will 'assist the trier of fact to understand the evidence or to determine a fact in issue'
in short, does the expert testimony help the jury understand the facts and resolve the issues? |
|
|
Term
|
Definition
FRE 702 provides an expert is anyone "qualified as an expert by knowledge, skill, experience, training, or education"
an expert must have greater knowledge than a lay person to make his testimony "useful" to the jury |
|
|
Term
| Is the expert testimony reliable? |
|
Definition
used to be Frye (tests or principles must be sufficiently established to have gained general acceptance in the field)
but now is DAUBERT: key inquiry is now whether the offered expert testimony is relevant and reliable
trial judge must determine initially if the expert will testify to scientific knowledge that will assist the trier of fact to understand or determine a fact in issue - this requires the judge to look at the DAUBERT FACTORS |
|
|
Term
|
Definition
trial judge must assess whether the reasoning or methodology properly can be applied to the facts in issue
1. whether theory or technique can and has been tested
2. whether it has been subjected to peer review and publication
3. the known or potential rate of error
4. whether the theory or technique has been generally accepted in the scientific community |
|
|
Term
|
Definition
under Daubert the JUDGE controls admissibility
Daubert hearings are required to make this assessment |
|
|
Term
|
Definition
| some courts continue to follow Frye - in those courts the expert himself can testify that the scientific tests and methods on which his testimony is based have gained general acceptance in the relevant scientific community |
|
|
Term
|
Definition
| judge's gatekeeping function in federal court applies to ALL experts, not just those providing "scientific" testimony (as opposed to other specialized knowledge) |
|
|
Term
| Daubert analysis of scientific vs other experts |
|
Definition
if based on scientific tests and methods the full Daubert analysis is necessary
if not, then the judge must still determine if testimony is RELIABLE and in making this determination may consider one or more of the Daubert factors |
|
|
Term
|
Definition
FRE 701 was amended to provide that expert witnesses cannot avoid the trial court's gatekeeping scrutiny required by 702 by testifying as a lay witness under 701
702 was amended to make it clear that an expert may testify if (1) testimony is based on sufficient facts or data and (2) the testimony is the product of reliable principles and methods and (3) the witness has applied principles and methods reliably to the facts |
|
|
Term
| Were tests done properly in this case? |
|
Definition
| in most cases, tests are well established (e.g. breathalyzer or paternity) by still must prove that tests were properly conducted using reliable equipment |
|
|
Term
| Are the sources the expert relied on proper? |
|
Definition
FRE 703 provides that if the facts or data are of a type reasonably relied upon by experts in the particular field...the facts or data need not be admissible in evidence."
e.g. physican can base opinion on xrays and lab reports even though those are not admitted into evidence |
|
|
Term
| When should the sources of info be disclosed? |
|
Definition
FRE 705 provides an expert can testify "without first testifying to the underlying facts or data, unless the court requires otherwise" However, the cross-examiner can require the expert to disclose the underlying facts or data.
i.e. may give opinion followed by reasons |
|
|
Term
| Are the sources themselves admissible? |
|
Definition
FRE 703 permits the expert to testify without first having facts and data that testimony is based on admitted into evidence
also makes clear that the bases for the opinion are presumptively inadmissible unless trial judge rules their probative value outweighs prejudicial value (can't backdoor hearsay into the trial anymore) |
|
|
Term
| Are the forms of the expert's testimony proper? |
|
Definition
702 permits expert to testify in form of an opinion or otherwise so can testify to:
1. a conclusion
2. an opinion (to a reasonable degree of scientific certainty in some jurisdictions)
3. hypothetical questions
CANNOT BE:
1. conjecture or speculation
2. "it is conceivable that..."
these are not helpful to the jury |
|
|
Term
| Can the expert testify to ultimate issues? |
|
Definition
704 provides that expert testimony otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by trier of fact (except mental state in criminal cases)
HOWEVER it MUST "assist the trier of fact to understand the evidence or to determine a fact in issue" |
|
|
Term
| example of acceptable ultimate issue testimony |
|
Definition
a psychiatrist in a committment hearing's testimony that someone is paranoid schizophrenic and is danger to himself and society is helpful because average jury is not equipped to make that determination
on other hand, accident reconstruction expert could testify to where the car was, but could not testify that accident was defendant's "fault" or that D was "negligent" because this is not helpful - jury can use factual conclusions to resolve ultimate issue just as well as the expert can |
|
|
Term
| jury's concerns about experts |
|
Definition
Three basic questions:
1. what did expert do?
2. how did he do it?
3. what does it mean?
4. jury expects expert to be boring - make him interesting
5. wonders if he is really an expert - show qualifications
6. wonders if he is biased - show he used reliable methods
7. expects expert to be condescending - show them he's just a regular guy |
|
|
Term
| qualities of a winning expert |
|
Definition
1. they have expertise
2. they are trustworthy
3. they are likeable |
|
|
Term
| can use leading questions to establish background |
|
Definition
| are proper for introductory and background information and matters not in dispute - can use this with any witness |
|
|
Term
| establishing trustworthiness |
|
Definition
primarily depends on how capable a communicator the expert is
but also should mention compensation to get it out of the way (unless both sides have compensated experts in which case sometimes pointless) |
|
|
Term
|
Definition
1. formal education and training
2. actual work experience
keep in mind that hands on experience usually is more impressive to jurors than education |
|
|
Term
|
Definition
you want the witness to be impressive, but also likeable
do this by keeping it short and using leading questions to volunteer the expert's most impressive credentials |
|
|
Term
| credentials to bring out: |
|
Definition
1. undergrad, grad, professional degrees
2. licenses and certifications
3. teaching and publications
4. positions held in important professional organizations
5. public offices held
6. previous experience as an expert
7. any other accomplishments that have a direct bearing on expertise
8. how many times has expert done what he is testifying about |
|
|
Term
| offers to stipulate to expertise |
|
Definition
generally don't do it
don't accept it - instead suggest a more favorable stipulation which other side will invariably refuse |
|
|
Term
|
Definition
| are no longer necessary but some lawyers still like to use them - give summarizing facts and then ask conclusion based on those facts - can be effective at end of exam |
|
|
Term
|
Definition
| FRE 803(18) can be relied on by experts during testimony and may be read into evidence (but not received as exhibits) |
|
|
Term
| preparation for cross exam |
|
Definition
| use your own expert to help you prepare for cross of other expert; read literature in the field and everything the expert has ever published; learn about other testimony and review expert's written report |
|
|
Term
|
Definition
two purposes:
1. elicit favorable testimony
2. conduct destructive cross
start strong, end strong, keep it simple; maintain control; and stop when point is made; keep questions simple and leading |
|
|
Term
| voir dire on qualifications |
|
Definition
| don't do it unless you really think you can disqualify witness; save questions for cross otherwise |
|
|
