#11412 - Expert Witness - Evidence

Expert Witness: 702, 703, 705

1. FRE 701: Lay opinions

   1. Non-expert testimony must be limited by the following:

      1. rationally based on W’s perceptions

      2. helpful to clearly understand the W’s testimony or to determining a fact in issue; and

      3. not based on scientific, technical, or other specialized knowledge within the scope of 702

2. FRE 702: Conditions for expert’s ability to testify

   1. Their scientific/technical/medical/specialized knowledge will help trier of fact to understand evidence/determine a fact in issue

      1. Intentionally broad

         1. Because of other evidentiary checks – in rules, jury’s ability to judge credibility, cross-X

      2. Courts reluctant to admit:

         1. Lie detector test results

         2. Problems with eyewitness identification

         3. Astrology/palm reading

      3. Elements

         1. Trier of Fact must be ignorant to substance of testimony

         2. Specialized knowledge must be gained by experience

            1. No requirement for formal education

            2. Based on “knowledge, skill, experience, or training” as well as education

   2. Testimony based on sufficient facts/data

   3. Testimony produced using reliable principles/methods

   4. Expert has reliably applied the principles and methods to the facts of the case

   5. Practice tips

      1. If opposing party tries to stipulate to level of experience, refuse – because it is more convincing if jury is able to hear why the person is an expert

      2. Attorney should consider several things before deciding on using expert

         1. Experts often cost money

         2. Jurors may reject expert straight out, if the specialized evidence is of a seemingly bizarre nature

         3. The thought: “if the party must resort to this type of unreliable evidence, the party’s case must be a wak one.

      3. The nature of scientific evidence increases the possibility that unrealiable evidence will be exposed on cross-X

   6. Whether the person is an expert is decided by Judge pursuant to 104(a).

      1. 403 Concern

         1. because expert testimony can be so powerful, there is a high danger of misleading jury

3. Summary Witness

   1. If just reciting facts (human tape recorder): lay witness

   2. If drawing conclusions from those facts: maybe expert

   3. Blurred line

4. Cases re: scientific evidence

   1. Frye (1923)

      1. D sought to introduce results of early type of lie detection device (technology not well recognized yet, perhaps still in experimental stage rather than demonstrable stage)

      2. General Acceptance test: “the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.”

      3. Criticism: prevents use of scientific evidence based on emerging disciplines/cross-disciplinary studies

   2. Daubert v Merrel Dow Pharmaceuticals (1994)

      1. Facts: child born with serious birth defects, alleged cause is mother’s ingestion of prescription drug. R submits Dr as expert, who reviewed all literature/studies of the drug and found no evidence that it causes birth defects. P retaliates with 8 experts, saying that despite the literature already produced, drug can cause birth defects (unpublished studies).

      2. Held:

         1. Frye test is superseded by the federal rules of evidence (1975), which include no general acceptance rule… FRE 702 is much broader. “must rest on a reliable foundation and be relevant to the task at hand”

            1. “no common law of evidence remains”

      3. Rule

         1. 702’s “scientific” implies a grouding in the methods and procedures of science. And “knowledge” connotes more than subjective belief or unsupported speculation. And “helpfulness” standard requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility.

         2. Factors for the judge to consider (flexible)

            1. Whether assetion can be tested

            2. Whether assertion has been published/submitted for peer review

            3. Known/potential rate of error

            4. Existence and maintenance of standards controlling the technique’’s operation

            5. General acceptance (not required, but permitted)

   3. Kumho Tire Company v. Carmichael (1999)

      1. Facts: Tire blows out and passenger dies. Sues manufacturer. Tire failure expert used certain observations that R disputed, and disagreed with expert’s methodology. “technical or otherwise specialized knowledge”

      2. Held: Supreme Court deferred to trial court’s rejection to admit. TC’s reasoning was that expert said that his inspection of the tire led to the conclusion that a defect caused the tire to explode because he did not see evidence of other causes.

      3. Rule

         1. Daubert “relelvant and reliable” standard applies to all 702 types of evidence, not just scientific

         2. Daubert factors neither necessarily or exclusively apply to all experts in every case, but serve as a flexible guide. Rather than being “Daubert criteria,” these factors are a “neither necessary nor sufficient” list of possible relevant factors.

         3. Reiterates from Joiner: court has broad discretion, review is based on abuse-of-discretion standard.

         4. Standard/factors apply to conclusions as well as methods

5. FRE 703: Opinions based on otherwise inadmissible evidence

   1. Expert opinions based on otherwise inadmissible hearsay (or any other FRE) are to be admitted only if the facts or data are “of a types reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.”

      1. If facts/data would otherwise be inadmissible, jury can only hear if their probative value ssubstantially outweigh their prejudicial effect

   2. Problems

      1. Generally, this results in an “incomprehensible” jury instruction that they should consider the evidence only as a basis for expert testimony, but not as substantively true

      2. At least one case has held that statements to psychiatrists are testimonial, thus triggering the Crawford analysis (not all courts do this)

   3. Williams v. Illinois (2011)

      1. Stranger rape case. Illinois state police collect vaginal swab from victim and send to Cellmark Lab. Analyst produced DNA profile from semen, sent to ISP. ISP analyst matched that profile to D’s profile which as in state’s DNA database from an unrelated arrest. V identified D in line-up 14 months after the assault. At trial, ISP expert testified that profiles matched and that chances of that profile’s occurrence was at least 1 in 8.4 quadrillion.

         1. Alito

            1. Cellmark findings not hearsay, because not admitted for their truth, so CC not implicated

            2. Even if hearsay, findings were not “prepared for the primary purpose of accusing a targeted individual” –so not testimonial

         2. Kagan dissents (4 justices)

            1. Statement was offered for its truth – that this DNA profile is the profile of the semen contributor; otherwise the statement has no utility to the witness analyst’s analysis

            2. “Have we not decided this case?”

               1. statement was testimonial under Melendez-Diaz and Bullcoming

         3. Thomas: plurality opinion. Cellmark findings not testimonial, but other forensic reports will still be considered testimonial.

   4. Key point: FRE 703 allows opinions based on reasonably reliable but otherwise inadmissible data. The underlying data normally is not admitted at trial....