Expert Witnesses Flashcards
(24 cards)
Who can be an expert?
Anyone with specialized knowledge. Not limited to people with certain degrees - it has become more inclusive.
What are some examples of unconventional experts?
skilled witnesses, like bankers, landowners, prisoners, and even drug dealers
How does an expert get designated/certified as such?
A Judge designates/certifies who is an expert on a particular subject
What is an testimony from an expert witness is considered “expert”
testimony that is within their expertise
What 3 things must a proponent do to show a witness is an expert
the proponent must show that the witness:
- has particular knowledge, skill, experience, training, education, etc.
- is relying on valid principles or techniques that have been applied appropriately in this case
- has something that is useful for the jury
Can profession expert witnesses be impeached on the basis of their fees and/or loyalty to one side?
Yes, these are possible grounds for bias
Why is it useful for a witness to be designated as an expert (5 reasons)
- Jury will give testimony greater weight after judge gives her stamp of approval
- witness need not testify based on first-hand knowledge
- witness will have great latitude in offering opinions
- WITNESS CAN RELY ON HEARSAY AS BASIS FOR TESTIMONY
- Proponent of witness will appear to be well-prepared
Why is predictability in how expert testimony will be handled important?
Helps parties settle (they know how good the cards in their hand are)
What makes an opinion a lay opinion (3 things)
- rationally based on the witness’s perception
- Helpful to clearly understanding the testimony or to determining a fact in issue (i.e., relevant)
- Not based on scientific, technical, or another specialized knowledge
Does FRE 701(c) distinguish between lay and expert testimony or between law and expert witnesses?
LAY AND EXPERT TESTIMONY
What are three things that expert testimony requires?
- Specialized knowledge
- Helpfulness
- Reliability
What three things must be reliable with respect to expert testimony?
- Inputs: facts, data, etc.
- Technique
- Application: applying the 1 and 2 reliably.
(Daubert)
What are some other considerations regarding expert testimony?
- Whether they are proposing to testify about matters growing naturally and directly out of reserach they have conducted independent of the litigation, or whether they have develoepd their opinions expressly for pruposes of testifying.
- whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion
- whether the expert has adequately accounted for obvious alternative explanations
- whether the expert is being careful as he would be in his regular professional work outside his paid litigation consulting
- Whether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the epxert would give.
Who has the burden to establish the reliability elements are met?
The proponent of the expert testimony has the burden, by a preponderance of the evidence, of establishing that the reliability requirement is met, and the judge determines whether the showing is sufficient for admission. If the reliability requirement is met, the judge determines whether the showing is sufficient.
What msut the opinion testimony by experty be based on?
facts or data in the case that the expert has been made aware of personally
Do facts that an expert relies on for opinion testimony have to be admissible for the opinion to be admitted?
No, but they cannot reveal the underlying methods/data if that information would be inadmissible unless the probative value in helping the jury substantially outweighs their prejudcial effect. (e.g., expert can testify that land used to be a burial ground, but can’t say that an elder of the tribe told them that (b/c hearsay)
What balancing test must a proponent who wants to admit underlying inadmissible evidence to support an expert’s opinion testimony pass?
The reverse balancing test: probative value must substantially outweigh prejudicial effect)
What is the opinion on the ultimate issue rule?
Generally, expert can discuss the ultimate issue UNLESS the Hinckley rule applies
What is the Hinckley rule?
In criminal cases, experts cannot talk about mens rea. (e.g., expert can’t say “D lacks capacity to tell right and wrong,” but can say, “D has an IQ in the 10th percentile.
Can the court pay for and appoint experts?
Yes
When are experts appointed, usually?
For indigent parties
What type of compensation are experts entitled to?
reasonable compensation
In civil cases, can the court impose the costs of an appointed expert on the parties?
Yes
Can a party ask the court to tell the jury that the court appointed an expert?
Yes.
