If you’re searching for an expert witness, you’ve no doubt discovered that finding the perfect candidate is a daunting task. The types of experts that can be retained are as varied as the subjects that can be litigated, expert directories are full of recycled experts paying exorbitant listing fees for your click, and search engines produce millions of moderately relevant results for any expert witness query. Finding even one viable candidate can take days of searching for top professionals, reading through hundreds of CVs, running background checks, confirming litigation histories, tracking down candidates with reasonable fee schedules, and overcoming logistical hurdles. In spite of all these time-consuming efforts, the importance of retaining the right expert for your case cannot be overstated.
The overall purpose of an expert witness is to provide insight into an area of knowledge or skill that may not be readily known or understood by the average fact finder. The more complex your case, the more likely it is that you will need one or more expert witnesses. Since expert testimony helps to address those questions or facts on which liability issues hinge, expert witnesses can make or break a case. To ensure success, you need to find an expert with more than just the proper credentials — you need an expert who advances your case theory, trial strategy, and increases the chances of a favorable outcome.
Finding an expert witness who accomplishes this can feel like searching for a needle in a haystack. That’s why we’ve compiled this comprehensive guide to help you find the perfect expert witness for your next case.
There’s no shortage of professionals advertising as experts out there, but finding an individual who matches the exact criteria of your case is a challenging endeavor. Use the details of your case and your case theory to keep your search as narrow as possible. Be sure you’re looking for expert witnesses with specializations, training, and certifications that enable them to speak to the central questions of fact with authority. Once you know exactly what you are looking for, it becomes much easier to focus your search and avoid potential pitfalls.
Research the Subject Matter of the Case
One of the best ways to find an expert witness is by familiarizing yourself with resources available in your desired expert’s subject area. Reading through peer-reviewed publications, trade association websites, or articles geared towards the practice area will help you thoroughly search for and vet expert candidates. You should be able to hold an informed conversation with a potential expert about your intended case strategy before retaining them. This will allow you to determine if your chosen expert’s opinion aligns with your case theory.
Familiarize Yourself With Federal Rules of Expert Evidence
Rule 702 in the Federal Rules of Evidence grants wide judicial discretion in determining admissibility and serves as the basis of expert evidence admissibility in many jurisdictions. The breadth of Rule 702 establishes that exclusion of expert testimony is the exception rather than the rule.
Rule 703 establishes the basis on which experts may form their opinions. Under Rule 703, experts may base their opinions on inadmissible evidence so long as such information is reasonable to rely upon. Inadmissible evidence in the context of Rule 703 usually relates to hearsay issues. However, Rule 703 is not limited to hearsay, as experts may also rely on information rendered inadmissible by the other rules of evidence and the Constitution.
Familiarize Yourself With the Standards of Admissibility for Expert Testimony
Prior to trial – and ideally, prior to retaining your expert – it is critical to have a working understanding of the Daubert and Frye admissibility standards, their specific jurisdictional variations, and applicable case law.
The two major governing standards can be found in two seminal cases – a D.C. Circuit case, Frye v. United States, and a U.S. Supreme Court decision, Daubert v. Merrell Dow Pharmaceuticals, Inc. The general premise in Frye states that an expert opinion is admissible if the scientific technique on which the opinion is based is “generally accepted” as reliable in the relevant scientific community. In Daubert, the Court emphasized the importance of a trial judge’s “gatekeeping responsibility” and held that the twin standards of Rule 702 – relevance and reliability – are incompatible with the stricter “general acceptance” test.
The federal court system exclusively follows Daubert, while state courts are generally divided between interpretations that mirror both Daubert and Frye. Since each state has taken on its own interpretation of these two benchmark cases, the admissibility of expert testimony can vary significantly between state jurisdictions.
Navigating Search Engine Results
Search engines are the “first stop” for a wide range of searches. However, while they can help you find expert witnesses, they do have their limits. Unless your search query is precisely tailored, you will end up sifting through a heap of moderately relevant results.
Oftentimes, finding the expert you’re looking for depends on how well you phrase your request. One way to improve your search engine results is by using the “advanced” options offered by the search engine of your choice, where you can focus your search using key phrases. A key phrase is a string of two or more words that tells a search engine where focus on items that contain that particular string of words. Similarly, a “keyword” is a single word that accomplishes the same task.
Still, utilizing advanced search features won’t always yield more precise search results. It is important to remember that the first few expert results on Google are often paid listings, meaning anyone can pay to have their credentials rank in the top spot for certain search queries. While turning to search engines may seem like a simple and cost-effective route to finding expert witnesses, using them to locate a specialized expert who meets your exact needs can be complex and time-consuming. More often than not, they won’t produce the nuanced results you need.
Working With Expert Witness Directories
Expert witness directories can also help you find the right expert in some instances, as they allow the researcher to browse for consultants in a particular area of expertise.
Many local bar associations maintain local expert witness directories. These can be useful if time or cost are of the essence, or if your case involves a feature or event that is location-specific. Many large online legal directories maintain expert directories as well – although, as with any internet search, you’ll need to closely tailor your search terms and take advantage of any advanced search features to optimize your results. The downside to expert witness directories is that their experts usually pay a listing fee. This limits the number of qualified experts that may be members and, worst of all, may include a significant number of “experts” who spend the majority of their time in courtrooms, rather than practicing in their area of expertise.
Consulting Expert Witness Referral Services
Working with a qualified expert witness referral service (also known as an expert witness consulting firm or expert witness agency) will typically yield the best results while saving you significant time and money in both the short and long term.
Expert witness referral services can totally alleviate the burden of finding experts, as they are professionals trained in connecting attorneys and litigants with experts who are custom-selected to meet a given set of specifications. This is a particularly good choice if you’re looking for an experienced expert with a narrow, or esoteric, field. With access to vast databases of qualified experts across practice areas and industries, as well as other search tools that are not widely available, expert witness referral services have a much higher probability of locating an expert ideally suited to the needs of a specific case. For example, The Expert Institute has a proprietary internal database with expert candidates who do not advertise their services. The Expert Institute is also unique in that we can custom recruit experts to ensure an ideal fit on any case.
A few referral services (including The Expert Institute) are particularly useful at the preliminary stages of litigation, as they may have a team of on-staff experts who can assess the merits of a claim and decide which course of action is best. If several experts are necessary for a case, a referral service may also be able to assemble a team of professionals from different industries to work together. Expert witness referral services are equipped with researchers who can identify the kind of experts that would work for the attorneys’ needs. The Expert Institute, for example, offers a team of in-house physicians that can be consulted for review of medical claims.
Historically, a common contractual practice among referral services has been to charge attorney clients a marginal rate on top of the expert’s hourly rate. The major issue with this practice is that costs in the long-term will be significantly greater than if the expert was identified through other channels. While this billing structure still holds for many expert witness referral services, The Expert Institute only charges a one-time fee to execute a custom expert search.
The best way to increase your chances of finding the right expert is through an exhaustive search approach. Seek out local university departments, consulting firms, and organizations that provide access to experts. Consider tapping into your own professional networks and those of your clients. Trusted colleagues can either serve as experts or provide referrals to other qualified experts.
Essential Expert Qualifications To Look For
What makes an expert “qualified” to assist on any given case is highly variable, and largely depends on the facts of the case at hand as well as the norms and standards of the expert’s field. Choosing the right expert for your case starts with digging into the minutiae of your case fact pattern.
Typically, expert witnesses come from one of three backgrounds:
Practitioners whose expertise comes from hands-on work in a particular industry. Physicians, auditors, and engineers often fall into this category.
Academics whose field of study encompasses the questions or facts at issue in the case. Academics with experience in specific methodological approaches, such as statistical analysis or assessment, may also fall into this category.
Professional experts who work with expert consulting firms or their own companies. These individuals often start their careers as academics, practitioners, or both, then transition into providing expert testimony in their field as a part- or full-time career. They are often well-versed in courtroom and deposition rules, but may also be confronted with accusations of being a “hired gun” more frequently than their peers in the field or academia.
Conducting a Thorough Background Check
While finding a qualified, experienced, and knowledgeable expert who is free of conflicts is certainly the goal, it is only half the battle. Before making the decision to retain an expert, you should always look into the expert’s CV and references to confirm that the potential expert is in good standing within their field. This can help avoid an embarrassing or potentially case-damaging situation if the expert’s stated credentials do not match reality.
A comprehensive screening procedure for each of your expert candidates should include:
Daubert / Frye Challenges
Litigation History and Transcripts
Professional Licenses and Board Certifications
Board Sanctions and Malpractice Claims
Publications and Lectures
Subject Matter Expertise
Although this one seems like a no-brainer, you can never be 100% sure that an expert doesn’t have any skeletons in their closet. It goes without saying that you should not retain a formerly convicted felon to testify as your expert witness. But even minor indiscretions, such as motor vehicle violations, might be used against an expert during cross examination to impeach their character and credibility. Check and double check your expert candidate’s criminal history before making the decision to retain.
Previous Daubert/Frye Challenges
When deciding whether to admit expert testimony, a judge will consider the expert’s opinions within the framework for admitting or excluding expert testimony within their jurisdiction. When vetting a potential expert, it is important to analyze court records in order to identify the key reasons for exclusion or admission of their previous opinions. Daubert / Frye gatekeeping challenges should be monitored across:
When reviewing an expert candidate’s litigation history, you should note their number of case reviews, depositions, and testimonies at trial, as well as their tendency to work for either plaintiffs or the defense. In some instances, an expert’s litigation experience can also affect how much time initial expert disclosures will take. If the case is pending in Federal Court, it’s helpful to have an expert with federal court experience, because the disclosure process is very detailed and exacting. If the expert has no experience doing such disclosures, the attorney will have to spend much more time shepherding the disclosure process. However, in many state court proceedings, prior litigation experience for the expert is not essential. When it comes to disclosures,..
As any true crime purveyor (or Netflix-binge-watcher) knows, the murder of Kathleen Peterson has become an enigma over the past two decades. On December 9, 2001, her husband, Michael Peterson, found her unconscious at the bottom of the stairs of their mansion. Peterson was subsequently charged and convicted of his wife’s murder and sentenced to life imprisonment without the possibility of parole. The case, however, was far from over. Following a lengthy appellate process and scheduled retrial, Peterson was eventually released from prison in 2017 after entering into an Alford plea, during which he admitted the existence of evidence against him while maintaining his innocence. Over a decade of appeals (and a roving camera crew) later, the trials and tribulations, as well as the strengths and weaknesses of the case, have been exposed for public consumption in the Netflix miniseries, The Staircase.
Remarkably, Peterson’s (somewhat) exonerated ending stems from the faulty testimony of a self-described blood spatter expert. The Staircase not only examines how this particular expert shaped the (arguably) wrongful conviction of Peterson, but it also exposes the greater issue of expert unreliability in the forensic sciences and the implications of entrusting an accused’s fate to perception-based expert testimony.
The Facts of the Case According to the Blood Spatter Expert
Duane Deaver, the North Carolina State Bureau of Investigation agent and blood spatter analyst that examined the murder of Kathleen Peterson, is as ubiquitous a name to the documentary as the murder victim and accused. At Michael Peterson’s trial, Deaver testified that Kathleen died from being beaten to death and that the blood spatter patterns found on the stairwell walls and on Michael and Kathleen’s clothes proved that Michael killed her by bludgeoning her with a blunt object, namely, a blow poke. Contrastingly, the defense argued that Kathleen died by accidentally falling down the stairs. As part of Deaver’s qualifications as an expert, he testified that he participated in 500 cases involving bloodstain pattern analysis and had written 200 reports throughout his career. He also testified that he had personally investigated 15 crime scenes which involved falls. On this basis, Deaver was qualified as an expert witness in bloodstain pattern analysis. Deaver was considered to be a key prosecution witness and partly responsible for the guilty verdict that resulted in life imprisonment for Michael Peterson.
However, Deaver’s testimony was eventually called into question after he was fired by the State Bureau of Investigation for misrepresenting evidence in other major trials. During a 2010 innocence hearing for a later exonerated defendant in another case, Deaver stated that the State Bureau of Investigation had been consistently withholding blood evidence from defense attorneys on numerous occasions and he was only following their policy. It was then discovered that North Carolina’s State Bureau of Investigation had withheld or misrepresented evidence in over 200 cases. It was also revealed that Deaver grossly falsified his qualifications during his testimony, as his experience was much more limited than what he had represented to the jury. These groundbreaking discoveries formed the basis of Michael Peterson’s appeal.
In 2011, the Court held that Peterson was entitled to a new trial on the grounds that Deaver misled the jury and provided false and misleading testimony which was material to the case. Set for a retrial, Michael Peterson elected to enter into an Alford plea by which he was essentially sentenced to time served.
While the trial of Michael Peterson had finally come to a cinematic close, it also brought forth more questions concerning the legitimacy of a science that had previously been responsible for innumerous convictions.
Bloodstain Pattern Analysis: Reliable Evidence or Faulty Science?
The Peterson case has been one of the most publicized examples of unreliable and faulty blood spatter experts, however, the discipline of bloodstain pattern analysis as a whole continues to be scrutinized within the forensic science communities. But what exactly is bloodstain pattern analysis? Is it a legitimate science? And if so, how does one become an expert in the field?
Bloodstain pattern analysis refers to the physics of blood and the visual pattern recognitions that are found at a crime scene. Through blood spatter, an event can be reconstructed and information concerning the type of incident (murder, suicide, accident, etc.) can be ascertained. Principles of physics, such as gravity, liquid movement, and air resistance, are applied to bloodstain pattern analysis. The overall purpose is to define the facts surrounding an incident in question based on the specific patterns and flow of blood left at the scene.
Although there was some experimentation in the field of blood spatter dating back hundreds of years, the first significant expert testimony concerning this obscure science occurred in the 1955 case, Ohio v. Sheppard. The defendant, on trial for the murder of his wife, was found guilty then eventually exonerated at his retrial in 1966 in large part due to the testimony of Dr. Paul Kirk. Using blood velocity and angle impact data, Dr. Kirk testified that the murderer used his left hand to bludgeon the victim. The defendant notably suffered from a motor-sensory in his left arm. Dr. Kirk later developed a research project concerning the case.
Around the time of the Sheppard case, bloodstain pattern analysis began to pick up steam in the mainstream sciences and in the courtroom. In the 1957 precedential case, People v. Carter, the Supreme Court of California affirmed that bloodstain pattern analysis is an appropriate field of expertise and that Dr. Kirk qualified as an expert in this area. In this case, Dr. Kirk (who was testifying for the prosecution) performed an experiment involving sponge rubber, and a plastic sheet, and involved beating a wooden contraption to conclude how far away the murderer had to have been from the victim. Although affirmed as an expert, Supreme Court Justice Jesse W. Carter notably dissented in part, commenting that, “It most certainly cannot be said that an object made of wood, sponge rubber and a plastic sheet constitutes the same thing as a human head.”
In 1971, after receiving a grant from the Law Enforcement Assistance Administration, Herbert Leon MacDonell published Flight Characteristics and Stain Patterns of Human Blood, followed by his Laboratory Manual on the Geometric Interpretation of Human Bloodstain Evidence in 1973. He then created a training program for bloodstain pattern interpretation at the first bloodstain institute in Jackson, Mississippi and trained over 1,000 analysts in the field. In 1983, the International Association of Bloodstain Pattern Analysis was formed, giving further legitimacy to this relatively new forensic science. Since then, a number of cases have hinged on blood spatter expert testimony, with numerous states holding that bloodstain pattern analysis is a legitimate science and can be the basis of expert’s opinion.
However, not all blood spatter analysts are experts. For example, in State v. Halake, the Tennessee Court of Criminal Appeals overturned a first-degree murder conviction on the basis that a police officer, who had never attended a full course in bloodstain pattern analysis, was improperly admitted as an expert.
Bloodstain pattern analysis has been met with some criticism that questions the reliability of the science. A 2009 study conducted by the National Academy of Sciences found serious deficiencies in the field of bloodstain pattern analysis concluding that generally, opinions on blood spatter “are more subjective than scientific.” The report stressed that experts analyzing blood patterns should have, at a minimum, “an understanding of applied mathematics, the physics of fluid transfer and the pathology of wounds.” As stated in the study, “extra care must be given to the way in which the analyses are presented in court. The uncertainties associated with bloodstain pattern analysis are enormous.” The study linked faulty forensics to wrongful convictions, finding a “potential danger of giving undue weight to evidence and testimony derived from imperfect testing and analysis.”
A follow-up to the 2009 study further explored of the forensic sciences generally, with obvious implications for bloodstain pattern analysis. The 2016 Report to the President: Forensic Science in Criminal Courts studied the reliability and validity of pattern-based forensic science methods, such as latent print analysis, firearms and tool marks, shoe and tire prints, and bite mark analysis. The study focused on the problem of perception and cognitive bias of the analyst. For example, the study found that fingerprint examiners can be influenced by the interpretations of other examiners. The authors of the study recommended that forensic scientists have minimal exposure to other evidence in crime scenes (such a confessions or eyewitness identifications) to minimize the potential for bias.
That is not to say that blood pattern analysis can never be accurate. Like any scientific testimony, the reliability of the expert’s methodology is critical. Unlike the infamous Duane Deaver, an expert’s testimony that is based on reliable methodology, unbiased analysis, and of course, the requisite professional qualifications, can hopefully avoid the unnecessary problems that plagued Peterson’s trial.
A number of cases demand the expertise of an appraiser to help the judge and jury understand key parts of the case, such as the value of property involved in the case, what a comparable sale of a similar item would be, what it costs to create an item, or the process by which a particular asset produces value. And while the matter of value can be crucial to a case, the estimation of that value can be highly subjective.
Here, we explore the types of cases that commonly call for appraisers as expert witnesses, the types of appraisal experts commonly seen in court, and the role a qualified appraiser may play both before and during trial.
What Types of Cases Call for Appraisers as Expert Witnesses?
Generally speaking, an “appraiser” is someone who evaluates the significance, status, or monetary value of an asset. While court cases involving business disputes, real estate disputes, or arguments over intellectual or personal property most often involve appraisers, an appraiser’s help may be necessary for any case in which the parties argue over what something is worth.
An appraiser may be called as an expert witness in any case in which the parties are arguing over value. Typically, the side that calls the appraiser as an expert witness would benefit from the item in question having either a higher or a lower value. The appraiser is called as an expert who can comment knowledgeably on what the item in question should be worth and why.
Attorneys may also choose to work with appraisers as consultants. When an appraiser works on a case as a consultant, he or she may be asked not only to conduct an appraisal or to critique the opposition’s appraisal, but also to help the attorney determine which questions to ask in discovery, deposition, and at trial. The more complex an appraisal is, the more likely that an attorney will consult an appraiser for assistance.
Appraisers can be called in a wide number of cases to testify about an appraisal they performed that is relevant to the case, such as an appraisal of land in a real estate malpractice case or an appraisal of a privately-owned art collection in a divorce. In this situation, the appraiser is not acting as an expert witness.
What Types of Appraisers Commonly Serve as Expert Witnesses?
Generally speaking, the larger the perceived or disputed value of an asset, the more likely it is that attorneys for one or both sides will seek the help of an appraiser as a consultant, an expert witness, or both. Consequently, appraisers who specialize in large business assets, investments, and intellectual property typically find themselves sought as expert witnesses more often than their professional peers.
Real estate is the most common field in which an appraiser’s help is sought as an expert witness. The value of real property can vary significantly depending on a wide range of factors, and it can be difficult to determine without expert knowledge and skill. As a result, appraisers are often asked to discuss the methodology for determining the value of real estate in order to help one side establish that a performed appraisal is too high, too low, or just right.
What Role Does an Appraiser Play Before and During Trial?
Like other experts, appraisers must be evaluated for their suitability for the role they will play in the preparation and presentation of trial arguments. Their methodology should be considered as well, particularly in states where the rules governing the admission of expert witnesses dictate that questions about the appraiser-as-expert’s methodology may be raised.
As with all experts, appraisers should be chosen with attention to due diligence. Membership in an appraisal organization, such as the Appraisers Association of America, American Society of Appraisers, or INS, as well as the appraiser’s education, experience, publications, and participation in previous litigation are examples of key areas to consider when seeking an appraiser to serve as an expert witness.
One particularly important point to consider is that appraising is, ultimately, subjective. As a result, it is vital to address the question of bias both before and during trial by exploring whether your appraiser has ever given an unfavorable opinion and under what circumstances.
When offering the testimony of an expert witness, trial attorneys often make the mistake of presenting experts as they would any other witness. But experts aren’t just like any other witness. Unlike fact witnesses, experts are allowed to offer opinions on things that are relevant to the case at hand. When offering direct testimony of an expert witness, an attorney should not only consider how they will get the information before the fact finder, but also how to keep the fact finder’s interest and ensure their comprehension of the relevant material. At the end of the day, if only the attorney and the expert understand what was presented, the expert has provided nothing of value.
Work with Your Expert Ahead of Time
The fatal mistake attorneys often make begins and ends with prep time. It is never a good idea to ask an expert to write the direct examination questions. Nor is it a good idea for the attorney to assume what the answers will be, either based on a review of a prior transcript or based on prior experience. Every case is different. There may be facts and circumstances that change an expert’s methods, processes, or conclusions. Finally, it would be an error to simply rely on an expert’s written report. Sometimes, words have a different meaning within the context of a given scientific community than the meaning understood by lay people. Sometimes, the addition or subtraction of a single fact can change the conclusion. Meeting with the expert ahead of time is critical to a successful direct examination.
When done properly, meeting with the expert ahead of time accomplishes at least two goals:
· The meeting provides the attorney an opportunity to confirm they truly understand the issues, including the strengths and weaknesses of the expert’s methods, and conclusions
· The meeting provides the attorney the opportunity to develop a strategy consistent with the facts and good science, to present the evidence in a way the fact finder will understand
Consider Front Loading
Often, when presenting evidence, the temptation is to proceed in chronological order. This makes sense with fact witnesses, who can establish:
· First, I saw this
· Then I did that
· Next, I did another thing
· Finally, I saw something else
With an expert, however, unlike the lay witness, the goal is slightly different. You are not putting the expert on the stand to testify that first, they received a bit of evidence, then they analyzed the evidence, next they wrote a report. You are putting the expert on to offer a conclusion that supports your position. Consider leading with that conclusion.
Leading with the conclusion and backfilling as necessary is permitted in most jurisdictions. Once you have established your witness as an expert, consider immediately going to the expert’s findings.
· Did you have occasion to review the evidence in this case?
· After reviewing the evidence, did you develop any opinions about the evidence?
· Tell the jury your expert opinion.
Once the conclusion is out there, you can backfill by asking questions such as, “How did you come to that conclusion?” How much detail you allow your expert to get into should be something you discuss ahead of time. This is not to suggest you deliberately conceal information, rather, it is a recognition that every painstaking detail does not need to be drawn out before the fact finder in order for them to draw a conclusion about the sufficiency of the expert’s opinion.
Consider the big picture. Offer the conclusion. Give the jury what they need to know the conclusion is sound. Repeat the conclusion. Get out. The minutia of a given case may or may not be relevant. Does the jury really need to know how many drops of a given reagent were added to a solution, or the lot number, or expiration date of the reagent, in order for the expert’s opinion to be valid? They do if the reagents were expired, certainly. But if everything was done in accordance with scientifically accepted principles, detailing the process down to the last date the pipettes were calibrated and other less than relevant details will likely lose the jury.
Let the Expert Teach
A good expert is not only technically qualified, but they can also teach. If you have spent sufficient time with your expert, and selected your expert carefully, you already know they can teach in a manner the fact finder can understand. Sit back and let them do it. Consider questions such as:
· How did you arrive at that opinion?
· What methods did you use?
· Why did you select this method over another method?
· Are there other conclusions that could be drawn from this evidence?
If you have spent sufficient time with your expert, you already know the answers to all of these questions. You have also spent time with your expert discussing how to best convey scientific concepts in a manner someone with an eighth-grade education might understand. Now that you’ve done the prep work, sit back and let your expert teach the fact finder what they need to know.
Exhibits, Exhibits, Exhibits
Different people learn differently. Distilled down to the core, the three types of learners are auditory, visual, and kinesthetic. About 30 % of the population are auditory learners. These people learn best by hearing information presented to them. The problem is, 70 % of people aren’t auditory learners. In other words, just having an expert talk will not convey the information in the way that is best for the majority of the population to understand it.
Visual learners learn best by seeing information presented. Kinesthetic learners learn best hands on. Lucky for litigators, kinesthetic learners make up only 5 % of the population. The frequencies presented for each type of learner reflect the preferred method of learning. However, most of us learn best when a combination of audio, visual, and hands on information is presented. Creating an exhibit appeals to visual learners. Passing the exhibit around can give kinesthetic learners at least some opportunity to incorporate information.
Litigators, along with their experts, should put considerable thought into how an exhibit might illustrate a point. From providing a video, to creating a model to scale, to designing a PowerPoint presentation, a copy of which is distributed to the jury, having a physical and visual representation of evidence from which the expert can teach provides an effective form of communication to drive the relevant points home.
When Working with an Expert
One advantage of expert witnesses over lay witnesses is often times, the attorney has the ability to select their expert, whereas fact witnesses are not typically interchangeable. Selecting an expert who can teach both the attorney and the fact finder is critical to successfully presenting evidence in either a criminal or civil case. Attorneys can grab the fact finder’s attention by offering the most important testimony, the opinion, first. Allow the expert to teach, especially with the use of exhibits, to provide the jury with only the information they need in a manner that is easy to digest. In tandem, these approaches better convey necessary information, and lead to a successful direct examination.
In Daubert v. Merrell Dow Pharmaceuticals, Inc., the petitioners, the parents of two minor children, sought to sue Merrell Dow on the grounds that their use of a prescription anti-nausea medication, Bendectin, during pregnancy, caused their children’s birth defects. The suit was originally dismissed after the District Court reviewed an affidavit from a “well credentialed expert.” This expert wrote the literature did not support the petitioners’ position that Bendictin leads to birth defects in humans despite the petitioners presenting the following evidence:
Testimony of eight of their own “well credentialed experts” who opined Bendictin caused birth defects in animals
Chemical structure analyses of the drug
An unpublished reanalysis of previously published human statistical studies
The Supreme Court reversed the District Court, holding the Federal Rules of Evidence, in particular, Federal Rule of Evidence 702 properly imposed the limits of admissibility of scientific evidence. Commonly referred to as “the Daubert factors,” the court found the following factors should be considered by the court when assessing the admissibility of expert testimony:
Whether the theory or technique in question can be (and has been) tested
Whether it has been subjected to peer review and publication
Its known or potential error rate
The existence and maintenance of standards controlling its operation, and
Whether it has attracted widespread acceptance within a relevant scientific community
The court also noted the judge should be mindful of other applicable rules regarding admissibility. Id. 592 – 595.
The trial court has broad discretion in determining the admissibility of experts, in whole or in part. There is at least some indication federal courts are far more likely to admit experts the prosecution offers in criminal cases than the experts offered by criminally charged defendants. Further, it appears the appellate federal courts are far more likely to question the trial court’s judgment of the admissibility of purported scientific evidence in civil cases over criminal cases.
In granting motions challenging expert testimony, courts have taken three approaches, depending on the circumstances.
Exclusion Based on Daubert Factors
When an expert’s testimony is excluded, the court may rely on the failure of the attorney offering the expert to establish the Daubert factors have been met. This may be due to the failings of the attorney, or the court’s belief a science has not advanced to the stage of meeting the Daubert factors. A scientific method in its infancy may be too new to have been subject to rigorous peer review and publication. Because the Daubert factors allow a court to use their judgment, a court may find a lack of an error rate to be perfectly acceptable, and permit the testimony, or may find the lack of an established error rate an indication the field has not been studied enough to be sufficiently reliable.
Limitations Based on Daubert Factors
Courts may limit the admissibility of certain expert testimony based on facts and circumstances. For example, in United States v. Willock, a Magistrate limited a firearms examiner’s testimony to opinions and the bases for the opinions “without any characterization as to degree of certainty.” It was determined the examiner found no meaningful distinction after testifying his identification with “an absolute certainty” stating, “the likelihood of another firearm having fired these cartridges is so remote as to be considered a practical impossibility.” United States v. Willock, 696 F. Supp. 2d 536, 572–73 (D. Md. 2010).
But it is not just the courts who are issuing limitations. In September of 2016, then Attorney General Loretta Lynch issued a Memorandum for Heads of Department Components directing all federal forensic laboratories to review their policies and procedures, ensuring their forensic scientists were no longer testifying to a “reasonable scientific certainty” or to a “reasonable [forensic discipline] certainty” in reports or in testimony. Further, Department prosecutors were instructed to abstain from using these expressions when either presenting forensic reports or when questioning forensic experts in court, except where required by law or by a presiding judge.
Exclusion Based on Other Rules of Evidence
Of course, the Daubert factors aren’t the only basis to exclude expert testimony. In order to be admissible, a party must establish an expert as one “qualified as an expert by knowledge, skill, experience, training, or education.” Federal Rule of Evidence 702. There are three situations where this may present itself. The first is when a party seeks to offer testimony from one not qualified on any front regarding a topic at issue. The second is when the witness is not helpful to the trier of fact, regardless of their qualifications. Finally, when a party seeks to introduce testimony beyond the bounds of their qualifications, the court may exclude their testimony.
An Expert Not Qualified
In some instances, a court will prevent an offered expert witness from testifying at all. The court may decide the expert does not have sufficient knowledge to assist the trier of fact in understanding the evidence. This is a judgment call. The party introducing the testimony bears the burden of establishing qualifications. As such, attorneys should be mindful of their responsibility. Experts can assist by providing information to lay the proper foundation.
An Expert Not Helpful
Alternatively, the court may find the expert can’t assist the trier of fact in determining a particular fact at issue in a case. For example, imagine an expert offered to testify a particular individual is “predisposed” to undue influence. Will this help a jury decide whether the person was unduly influenced in a given case? If not, even if the expert is fully qualified to testify about predisposition, the court may reject the expert’s testimony.
An Expert Testifying Beyond the Bounds of Their Expertise
An expert in arson, for example, probably is not in a position to opine about whether the autopsy photos indicate the presence of smoke in the lungs of a person found dead at the scene of a fire. An expert in cancer causing chemicals may not have the requisite “knowledge, skill, experience, training, or education” to testify about the effects of antidepressants combined with excessive alcohol use.
It is not uncommon, with a scientist on the stand, for attorneys to ask for information about things beyond the expertise of the testifying expert. In this particular situation, both the expert and the attorneys have a certain amount of responsibility. Attorneys should object if an expert is asked for information beyond their expertise. However, experts should also refrain from offering speculation or otherwise testifying beyond their training and experience.
Courts as Gatekeepers
At the end of the day, judges are charged with being gatekeepers of evidence. However, attorneys and experts themselves also have a duty to exercise care when soliciting or providing testimony.