MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001
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Part V. Evidence - Part V(A) 5. Admissibility: Receipt Of Expert Testimony
Part
V(A) 5a Receipt Of Expert Testimony: Qualification Of
Expert Witness
Part V(A) 5b
Receipt Of Expert Testimony: Determination Of Admissibility Of Expert Testimony
Part V(A) 5c
Receipt Of Expert Testimony: Expert Opinion Testimony
Part V(A) 5d
Receipt Of Expert Testimony: Evaluation Of Reasonable Reliance
Part V(A) 5e
Receipt Of Expert Testimony: Opinion Testimony On Ultimate Issue
MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001
Part V(A) 5a Admissibility: Receipt Of Expert Testimony: Qualification Of Expert Witness
CAVEAT: See Publication Preface and Caveats.
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29.1 Expert Qualification And Scope Of Expert Testimony
The trial court has broad discretion to determine whether a proffered expert qualifies as an expert.
784 F.2d 782 (7th Cir. 1986)United States v. Tomasian,
MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001
Part V(A) 5b Admissibility: Receipt Of Expert Testimony: Determination Of Admissibility Of Expert Testimony
CAVEAT: See Publication Preface and Caveats.
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Chapter 29: Expert Opinion Testimony
FRE 702 provides:
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.
In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Supreme Court held that admissibility of expert testimony is governed by FRE 702 rather than the previous Frye test. Under Daubert, a trial judge faced with a proffer of expert scientific testimony must determine at the outset, pursuant to FRE 104(a), whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue. Pertinent considerations in making this determination are whether a theory or technique can be (and has been) tested; whether it has been subjected to peer review and publication; the known or potential rate of error; and whether the theory or technique is generally accepted.
In
Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), the Court ruled that the Daubert "gatekeeping" obligation applies not only to scientific testimony but to all expert testimony. The gatekeeping inquiry must be tied to the particular facts, and the Daubert factors may or may not be helpful in assessing reliability in a specific case.Appellate decisions applying Daubert include the following:
3 F.3d 1191 (8th Cir. 1993) (DNA)United States v. Martinez,
In making an admissibility determination, a judge must be mindful of other evidence rules, such as FRE 403, which permits the exclusion of relevant evidence "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."
113 S. Ct. 2786 (1993)Daubert v. Merrell Dow Pharmaceuticals, Inc.,
Under Daubert, the court can take judicial notice of the reliability and scientific validity of the general theory and techniques of DNA profiling. (If new techniques are offered, however, the court must hold an in limine hearing.)
3 F.3d 1191 (8th Cir. 1993)United States v. Martinez,
In
Martinez, the Eighth Circuit held that even though judicial notice may be taken, this does not mean that testimony concerning DNA profiling is automatically admissible. There must be a preliminary showing that the expert properly performed a reliable methodology in arriving at his or her opinion. The court should make an initial inquiry into the particular expert’s application of the scientific principle or methodology in question. The court should require the testifying expert to provide affidavits attesting that he or she properly performed the protocols involved in DNA profiling. If the opponent of the evidence challenges the application of the protocols in a particular case, the court must determine whether the expert erred in applying the protocols, and, if so, whether such error so infected the procedure as to make the results unreliable. An alleged error in the application of a reliable methodology should provide the basis for exclusion of the opinion only if that error negates the basis for the reliability of the principle itself., 40 F.3d 1069 (10th Cir. 1994); United States v. Chischilly, 30 F.3d 1144 (9th Cir. 1994)See also United States v. Davis
A trial judge's expanded role in assessing the admissibility of scientific expert testimony under Daubert does not allow the judge to usurp the jury's function in determining the sufficiency of the evidence already admitted.
, 52 F.3d 1124 (2d Cir. 1995)In Re Joint Eastern & Southern Dist. Asbestos Lit.
MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001
Part V(A) 5c Admissibility: Receipt Of Expert Testimony: Expert Opinion Testimony
CAVEAT: See Publication Preface and Caveats.
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Chapter 29: Expert Opinion Testimony
FRE 701 requires that a lay witness’s testimony be scrutinized
under the rules regulating expert opinion to the extent that the witness’s testimony is based on scientific, technical, or other specialized knowledge within the scope of Rule 702. This scrutiny eliminates the risk of counsel’s evading the reliability requirements of Rule 702 by proffering an expert as a lay witness.Under FRE 703, if facts or data on which the expert bases an opinion or inference are of a type reasonably relied on by experts in the particular field in forming opinions or inferences, the facts or data need not be admissible in evidence.
865 F.2d 164 (8th Cir. 1988)Davis v. United States,
FRE 703 makes available to the expert all of the data that an expert in the witness's area of expertise would normally rely on in forming an opinion, without requiring that such data be admissible in evidence. Under the rule the expert is free to give an opinion relying on the types of data an expert in the witness's area of expertise would normally use in forming an opinion.
, 869 F.2d 348 (7th Cir. 1989)United States v. Smith
At the defendant's request, the government must disclose a written summary of expert testimony it intends to use under FRE 702, 703, and 705 during its case-in-chief. The summary must describe the witnesses' opinions, the bases and reasons for those opinions, and the witnesses' qualifications. A defendant who makes such a request must provide reciprocal disclosure of expert witnesses' testimony to the government.
FRCRP 16(a)(1)(E), (b)(1)(C).
MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001
Part V(A) 5d Admissibility: Receipt Of Expert Testimony: Evaluation Of Reasonable Reliance
CAVEAT: See Publication Preface and Caveats.
FORECITE National™ Materials Related To This Issue:
Chapter 29: Expert Opinion Testimony
When an expert's opinion is based on facts not admissible in evidence, the court should make a threshold factual inquiry to determine whether the data providing the basis for the opinion are of a type reasonably relied on by experts in that field to form such opinions, and in making such an inquiry, the court may inquire into the relevance of the data as well as their reliability.
751 F.2d 1484 (5th Cir. 1985)Greenwood Utilities Comm’n v. Mississippi Power Co.,
The judge, not the expert, makes the determination of reasonable reliance under Rule 703. In making an independent evaluation of reasonableness, the trial judge should assess whether there are good grounds on which to find the data reliable.
35 F.3d 717 (3d Cir. 1994)In Re Paoli R.R. Yard PCB Litig.,
Because the question of reliability is an admissibility requirement governed by Rule 104(a), a proponent must do more than simply make a prima facie case on reliability. Although a proponent does not have to prove that the proffered expert testimony is correct, he or she must prove by a preponderance of the evidence that the testimony is reliable.
35 F.3d 717 (3d Cir. 1994)In Re Paoli R.R. Yard PCB Litig.,
In admitting expert testimony based on inadmissible evidence, a court does not have to make an explicit finding that the underlying sources of information used by the expert are trustworthy.
6 F.3d 924 (2d Cir. 1993)United States v. Locasio,
MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001
CAVEAT: See Publication Preface and Caveats.
Part V(A) 5e Admissibility: Receipt Of Expert Testimony: Opinion Testimony On Ultimate Issue
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Chapter 29: Expert Opinion Testimony
29.1.6 Expert Witness: Ultimate Issue Rule Abolished In Federal System
FRE 704(a) provides that testimony in the form of an opinion is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. One purpose of the FRE was to make opinion evidence admissible if it would be of assistance to the trier of fact.
593 F.2d 837 (8th Cir. 1979)United States v. Scavo,
FRE 704(b) forbids forbids expert testimony as to whether the
defendant had the requisite mental state or condition constituting an element of the crime charged. Decisions dealing with expert testimony under this rule include the following:, 962 F.2d 1243 (7th Cir. 1992)United States v. West