Expert testimony…

Studying the rules of evidence is one thing, applying them in the real world is another. Law students and lawyers read the rules and memorize the rules until they can cite them in their sleep, yet we still fail to utilize them appropriately while in the middle of a hearing or trial.

This failure isn’t incompetence.  After all, a single attorney, in the middle of a trial, has thousands of things to keep track of; which witnesses to call, what to ask them, what is unfolding while they are on the stand, how to respond to what is unfolding, what the jury seems to be responding to, how to get the elements of their claim or defense met, not to mention the unending creativity required to bring the information they need out of witnesses who, while well prepared off the stand, are dealing with their own mess of nerves on it.

It’s like herding cats through a sea of herring while insuring none of them eat anything.

One of the things a lawyer can do to really help their case is rely on expert witnesses. Experts should have fewer nerve induced memory lapses while testifying simply because they have likely spent time testifying before. They can be very powerful tool, this  a professional witness, someone who doesn’t lose the thread of their testimony under the pressure of trial.

My first trial taught me the value of experts. I was still trying to figure out my theme the first time I interviewed him. He was the treating psychiatrist for my client, who was an abused child. He said, during our interview, that the opportunity to help children is a perishable one. BOOM! It was instantly clear to me that this was exactly what I needed to get the factfinder to understand. We needed to help this child and now was the time.  I told him that I would like him to remember his statement for the trial, and I used it in my opening and my closing. He used it during his testimony.

Taking the time to prepare your expert witness can help you turn their testimony into a strong and compelling part of your case.

The rules that govern the admission of expert testimony are C.R.E. 702-705:

RULE 702 Testimony by Experts

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

RULE 702 in plain english: 

A qualified expert can give their opinion about a fact in your case if that fact falls outside the realm of knowledge held by everyday people.  For example: In a divorce involving issues of Domestic Violence, having an expert testify as to the power and control cycle may help the judge understand why the parties behave in a certain way.

In order to qualify that person as an expert you have to show that they have expertise in the area. This is accomplished in a few different ways. First, you and the opposing party can exchange information about your proposed experts and can stipulate to their qualification. If that doesn’t happen, you can offer your witness as an expert after you run through the list of what makes them an expert during the beginning of their direct examination.

Experts fall into many categories. We often think of them as Doctors or other specialists with a long line of degrees behind their names. While Doctors can be experts, expertise can also arise from experience.

For example, an officer who isn’t trained to be an expert in alcohol abuse can probably testify as an expert on drunkenness because he has seen a lot of drunk people during his career. He knows what they look/smell/sound like, how they talk, how they walk, etc. He can testify as to whether or not the person in question was drunk, even without a specific education in alcohol abuse.

A teacher could testify as to whether or not a home school mom’s lesson plan deviated from the required standards because that teacher has developed lesson plans that meet those standards.

The longer someone has done something improves the amount of weight their testimony can be given, especially in cases of experience based expertise. However, education based experts don’t have to have been working in their area of expertise particularly long in order to qualify.

RULE 703 Bases of Opinion Testimony by Experts

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert¹s opinion substantially outweighs their prejudicial effect.

Rule 703 in plain English: 

The expert can testify as to her opinion based on the facts available to the fact finder and some facts or information that is not available to the fact finder, including facts that would be inadmissible. The expert can’t reveal those inadmissible facts during their testimony.

This restriction, that of being able to rely on inadmissible evidence in forming an opinion but not being able to disclose it to the jury, allows experts to consider what they need to consider without letting attorneys use them as a way to get inadmissible evidence in to trial.

RULE 704 Opinion on Ultimate Issue

(a) In General — Not Automatically Objectionable. An opinion is not objectionable just because it embraces an ultimate issue.

(b) Exception. In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.

RULE 704 in plain English: 

An expert can speak as to their opinion, even if doing so results in them testifying as to the ultimate issue before the Court. However, the expert can’t testify as to the defendant’s mental state regarding the commission of a crime.

For example: A doctor could testify that the strenuous activity performed at work by the plaintiff’s dead husband could have resulted in his death, but a doctor can’t testify that the defendant intended to hurt his victim.

RULE 705 Disclosure of Facts or Data Underlying Expert Opinion

The expert may testify in terms of opinion or inference and give reasons therefor without first testifying to the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.

Rule 705 in plain English: 

The expert might have to tell the Court what facts she relied upon in making her opinion, either at the Court’s request or during cross-examination.

The Daubert Trilogy: 

Three cases have created the standard of review and criteria for expert witness testimony. These cases are Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993), General Electric v. Joiner, 522 U.S. 136, 118 S.Ct. 512 (1997), and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 1174 (1999).

Daubert established criteria for scientific experts, General Electric added an abuse of discretion standard for appellate courts to follow when reviewing lower court’s decisions regarding the admission of scientific expert testimony, and Kumho expanded the Daubert ruling to include nonscientific experts as well. Kumho also stated that the Daubert criteria were not an exhaustive list of criteria for expert witnesses so much as it set forth examples.

So, what are the Daubert Trilogy criteria?

(Remember, these are not exhaustive.)

To begin with we have the question of reliability. Is the information being presented to the court by the expert reliable? In order to determine this the person offering the expert must show that the theory or technique been empirically tested.

The second factor requires a showing that the expert’s theory has been subjected to peer review and publication. This means people with a similar degree of expertise have reviewed the theory and found it valid.

Thirdly, the rate of error and the existence of standards of control regarding the theory should be considered. (This is easier for scientific evidence than it is non-scientific evidence.)

Fourth,  that the methods and techniques are generally accepted by peers within their industry. Generally accepted means a significant portion of other people who work in your expert’s area of expertise also follow the standard/technique/theory she is presenting.

In departing from the Frye standard, the Supreme Court clearly wanted a more careful analysis of expert witness testimony than simply determining if the theory is generally accepted. The Daubert trilogy contains the “generally accepted” element within it, but it requires additional indicia of reliability. In other words, you have to show your expert’s testimony will help the fact finder resolve an issue before the court with information that is reliable, tested, and reviewed and accepted by others in the same field as your expert.

So there you have it! Your expert witness can be a great resource for you during your trial. They can help you pave the way for memorable testimony. They can help you establish the theme and theory of your case, and they can assist you in lending support to your position. In order to best utilize them, you should consider taking as much time working with your expert in preparation for trial as you do your other witnesses.

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About Misty Ewegen

I am a writer, a jeweler, and a Spoonie. Before becoming a Spoonie I was a very busy high achieving attorney and advocate bent on saving the world. Now I'm struggle to redefine my life to fit within my reduced energy level. Some days are better than others. I have fibromyalgia and chronic daily migraine.
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