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An expert witness, particularly in
common law In law, common law (also known as judicial precedent or judge-made law, or case law Case law is the collection of past legal decisions written by courts and similar tribunal A tribunal, generally, is any person or institution with authority ...
countries such as the
United Kingdom The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain,Usage is mixed. The Guardian' and Telegraph' use Britain as a synonym for the United Kingdom. Some prefer to use Britain as shorth ...

United Kingdom
,
Australia Australia, officially the Commonwealth of Australia, is a Sovereign state, sovereign country comprising the mainland of the Australia (continent), Australian continent, the island of Tasmania, and numerous List of islands of Australia, sma ...

Australia
, and the
United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country Continental United States, primarily located in North America. It consists of 50 U.S. state, states, a Washington, D.C., ...

United States
, is a person whose opinion by virtue of
education Education is the process of facilitating learning, or the acquisition of knowledge, skills, value (ethics), values, morals, beliefs, habits, and personal development. Educational methods include teaching, training, storytelling, discussion ...

education
,
training Training is teaching, or developing in oneself or others, any skill A skill is the learned ability to perform an action with determined results with good execution often within a given amount of time, energy, or both. Skills can often be divid ...

training
,
certification Certification is the formal attestation or confirmation of certain characteristics of an object, person, or organization. This confirmation is often, but not always, provided by some form of external review, education, assessment, or audit ...

certification
, skills or
experience Experience refers to conscious , an English Paracelsian Paracelsianism (also Paracelsism; German: ') was an early modern History of medicine, medical movement based on the theories and therapies of Paracelsus. It developed in the second half ...

experience
, is accepted by the judge as an
expert An expert is somebody who has a broad and deep understanding Understanding is a psychological process related to an abstract or physical thing, such as a person, situation, or message whereby one is able to use concepts to model that thing ...

expert
. The judge may consider the witness's specialized (scientific, technical or other) opinion about
evidence Evidence for a proposition In logic and linguistics, a proposition is the meaning of a declarative sentence (linguistics), sentence. In philosophy, "Meaning (philosophy), meaning" is understood to be a non-linguistic entity which is shared by a ...

evidence
or about
fact A fact is something that is true True most commonly refers to truth Truth is the property of being in accord with fact or reality.Merriam-Webster's Online Dictionarytruth 2005 In everyday language, truth is typically ascribed to things ...
s before the court within the expert's area of expertise, to be referred to as an "expert opinion". Expert witnesses may also deliver "expert evidence" within the area of their expertise. Their testimony may be rebutted by testimony from other experts or by other evidence or facts.


History

The forensic expert practice is an ancient profession. For example, in ancient
Babylonia Babylonia () was an and based in central-southern which was part of Ancient Persia (present-day and ). A small -ruled state emerged in 1894 BCE, which contained the minor administrative town of . It was merely a small provincial town dur ...
,
midwives A midwife is a health professional A health professional (or healthcare professional) may provide treatment and advice based on formal training and experience. The field includes those who work as a , (such as , , , , , etc), , , , , , , , ...
were used as experts in determining pregnancy, virginity and female fertility. Similarly, the
Roman Empire The Roman Empire ( la, Imperium Rōmānum ; grc-gre, Βασιλεία τῶν Ῥωμαίων, Basileía tôn Rhōmaíōn) was the post-Republican Republican can refer to: Political ideology * An advocate of a republic, a type of governme ...

Roman Empire
recognized midwives, handwriting experts and land surveyors as legal experts. The codified use of expert witnesses and the admissibility of their testimony and scientific evidence has developed significantly in the Western court system over the last 250 years. The concept of allowing an expert witness to testify in a court setting and provide opinionated evidence on the facts of other witnesses was first introduced by
Lord Mansfield William Murray, 1st Earl of Mansfield, PC, SL (2 March 170520 March 1793) was a British barrister A barrister is a type of lawyer A lawyer or attorney is a person who practices law, as an advocate, attorney at law, barrister A b ...

Lord Mansfield
in the case of ''Folkes v. Chadd'' in 1782. In this particular case, the court was hearing litigation regarding the silting of Wells Harbor in Norfolk and allowed leading civil engineer,
John Smeaton John Smeaton (8 June 1724 – 28 October 1792) was a British civil engineer A civil engineer is a person who practices civil engineering Civil engineering is a Regulation and licensure in engineering, professional engineering discip ...

John Smeaton
, to provide scientific rationale behind the proposed legislation. The decision by the English Court to allow for an expert to provide contextual background and detail on a case is often cited as the root of modern rules on expert testimony.


Role

Expert witnesses are called upon in the court system to serve as an objective party to the lawsuit and never function as an advocate for one side or the other. Expert witnesses are present in litigation to explain complicated scientific issues, not to influence the jury or judge with fervor. The main responsibilities of expert witnesses are to evaluate potential problems, defects, deficiencies, or errors only when able to fully appreciate a process or system.Cohen, Kenneth (2015-08-05). ''Expert Witnessing and Scientific Testimony : A Guidebook, Second Edition''. Chapman and Hall/CRC. . Expert witnesses are obligated to study the processes prior to making a survey or postpone the assignment prior to potentially missing the target due to lack of specific condition understanding. They are called to testify under the assumption that all the preparation required for a competent evaluation of the process has been made. Typically,
expert An expert is somebody who has a broad and deep understanding Understanding is a psychological process related to an abstract or physical thing, such as a person, situation, or message whereby one is able to use concepts to model that thing ...

expert
s are relied on for opinions on severity of
injury Injury, also known as physical trauma, is damage to the body caused by an external force. This may be caused by accidents, falls, hits, weapons, and other causes. Major trauma is injury that has the potential to cause prolonged disability or ...

injury
, degree of
sanity Sanity (from la, sānitās) refers to the soundness, rationality Rationality is the quality or state of being rational – that is, being based on or agreeable to reason Reason is the capacity of consciously applying logic by Logical con ...

sanity
, cause of failure in a machine or other device, loss of earnings and associated benefits, care costs, and the like. In an
intellectual property Intellectual property (IP) is a category of property Property is a system of rights that gives people legal control of valuable things, and also refers to the valuable things themselves. Depending on the nature of the property, an owner o ...
case an expert may be shown two music scores, book texts, or circuit boards and asked to ascertain their degree of similarity. In the majority of cases, the expert's personal relation to the defendant is considered and usually adjudged to be irrelevant. The
tribunal A tribunal, generally, is any person or institution Institutions, according to Samuel P. Huntington Samuel Phillips Huntington (April 18, 1927 – December 24, 2008) was an American political scientist, adviser and academic. He spent ...

tribunal
itself, or the
judge A judge is a person who presides over court A court is any person or institution, often as a government A government is the system or group of people governing an organized community, generally a State (polity), state. In th ...

judge
, can in some systems call upon experts to technically evaluate a certain
fact A fact is something that is true True most commonly refers to truth Truth is the property of being in accord with fact or reality.Merriam-Webster's Online Dictionarytruth 2005 In everyday language, truth is typically ascribed to things ...
or
action ACTION is a bus operator in Canberra, Australia owned by the ACT Government. History On 19 July 1926, the Federal Capital Commission commenced operating public bus services between Eastlake (now Kingston, Australian Capital Territory, Ki ...
, in order to provide the court with a complete knowledge on the fact/action it is judging. The expertise has the legal value of an acquisition of data. The results of these experts are then compared to those by the experts of the parties. The expert has a great responsibility, and especially in penal trials, and
perjury Perjury is the intentional act of swearing a false oath Traditionally an oath (from Anglo-Saxon The Anglo-Saxons were a cultural group Culture () is an umbrella term which encompasses the social behavior Social behavior is beha ...
by an expert is a severely punished
crime In ordinary language, a crime is an unlawful act punishable by a state State may refer to: Arts, entertainment, and media Literature * ''State Magazine'', a monthly magazine published by the U.S. Department of State * The State (newspaper ...

crime
in most countries. The use of expert witnesses is sometimes criticized in the
United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country Continental United States, primarily located in North America. It consists of 50 U.S. state, states, a Washington, D.C., ...

United States
because in civil trials, they are often used by both sides to advocate differing positions, and it is left up to a
jury A jury is a sworn body of people (the jurors) convened to render an impartial Impartiality (also called evenhandedness or fair-mindedness) is a principle of justice holding that decisions should be based on objectivity (philosophy), objective ...

jury
to decide which expert witness to believe. Although experts are legally prohibited from expressing their opinion of submitted evidence until after they are hired, sometimes a party can surmise beforehand, because of reputation or prior cases, that the testimony will be favorable regardless of any basis in the submitted data; such experts are commonly disparaged as "hired guns."


Qualifications

An expert witness at the time of trial is qualified by the court and must be re-qualified each time that person comes to trial for the offering of opinions. The qualification is given by each trial judge and takes place regardless of prior appearances by a particular expert witness. Expert witnesses are those whom the court has deemed qualified to speak on a topic to provide background to anyone on a lay jury.


Duties in United States Courts

In high stakes cases multiple experts, in multiple topics, are often retained by each party. Although it is still relatively rare, the court itself may also retain its own independent expert. In all cases, fees paid to an expert may not be contingent on the outcome of the case. Expert evidence is often the most important component of many civil and criminal cases today.
Fingerprint A fingerprint is an impression left by the friction ridge The dermis or corium is a layer of skin between the epidermis (skin), epidermis (with which it makes up the cutis (anatomy), cutis) and subcutaneous tissues, that primarily consists ...

Fingerprint
examination,
blood analysis A blood test is a medical laboratory, laboratory analysis performed on a blood sample that is usually extracted from a vein in the arm using a hypodermic needle, or via fingerprick. Multiple tests for specific blood components, such as a glucose ...
,
DNA fingerprinting DNA profiling (also called DNA fingerprinting) is the process of determining an individual's DNA Deoxyribonucleic acid (; DNA) is a molecule File:Pentacene on Ni(111) STM.jpg, A scanning tunneling microscopy image of pentacene mole ...
, and
forensic firearm examination Forensic firearm examination is the forensic process of examining the characteristics of firearms or bullets left behind at a crime scene. Specialists in this field are tasked with linking bullets to weapons and weapons to individuals. Obliterat ...
are common kinds of expert evidence heard in serious criminal cases. In civil cases, the work of accident analysis, forensic engineers, and forensic accountants is usually important, the latter to assess
damages At common law In law, common law (also known as judicial precedent or judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions. ''Black's Law Dictionary ...
and
costs In production Production may be: Economics and business * Production (economics) * Production, the act of manufacturing goods * Production, in the outline of industrial organization, the act of making products (goods and services) * Production ...
in long and complex cases.
Intellectual property Intellectual property (IP) is a category of property Property is a system of rights that gives people legal control of valuable things, and also refers to the valuable things themselves. Depending on the nature of the property, an owner o ...
and
medical negligence Medical malpractice is a legal cause of action that occurs when a medical or health care professional, through a negligent act or omission, deviates from standards in their profession, thereby causing injury to a patient. The negligence might ...
cases are typical examples. Electronic evidence has also entered the courtroom as critical forensic evidence. Audio and video evidence must be authenticated by both parties in any litigation by a forensic expert who is also an expert witness who assists the court in understanding details about that electronic evidence.
Voice-mail A voicemail system (also known as voice message or voice bank) is a computer-based system that allows users and subscribers to exchange personal voice message A voicemail system (also known as voice message or voice bank) is a computer-based ...
recordings and closed-circuit television systems produce electronic evidence often used in litigation, more so today than in the past. Video recordings of bank robberies and audio recordings of life threats are presented in court rooms by electronic expert witnesses.


Rules of evidence and code of procedure


Hearsay rule

One important rule that applies to the expert witness but not the percipient witness is the exception to the hearsay rule. A percipient witness tells only what he/she actually knows about a case and nothing more. Percipient witnesses cannot give opinions nor conjecture regarding a hypothetical set of conditions. Conversely, the court does allow an expert to testify about issues that may not be personally known by them. This allows the expert to rely upon scientific articles, discussions with colleagues on the subject, testimony read in preparation for testimony in the case and similar pieces of information not personally known to the expert.


Chain of custody

It is important that expert witnesses who handle evidence maintain a proper
chain of custody Chain of custody (CoC), in legal contexts, is the chronological documentation or wiktionary:paper trail, paper trail that records the sequence of custody, control, transfer, analysis, and disposition of materials, including physical or electronic ...
such that they are able to authenticate the evidence, prove that it is what they represent it to be, when testifying at trial. Most notably in the context of a criminal prosecution, an expert witness who evaluates or examines an item pertinent to an investigation or case evaluation may add an entry to a “chain of custody” document, a form that contains the item's description, the time and date of release for all prior custodians of the item, and the time and date of release to the witness.


Weight of testimony

In the case of an expert witness, the weight of his/her evidence depends heavily on the foundation support established prior to an opinion being given. Examples include educational background, review of scholarly works, field studies and trainings which all lead up to developing a foundation of knowledge for credibility of a testimony. Before trial, all experts must prepare a report summarizing their analysis and conclusions and share the report with all other parties. This allows other parties to effectively cross-examine the expert.


Types


Testifying experts

If the witness needs to testify in court, the privilege is no longer protected. The expert witness's identity and nearly all documents used to prepare the testimony will become discoverable. Usually an experienced lawyer will advise the expert not to take notes on documents because all of the notes will be available to the other party. An expert testifying in a United States federal court must satisfy the requirements of Fed. R. Evid. 702. Generally, under Rule 702, an expert is a person with "scientific, technical, or other specialized knowledge" who can "assist the trier of fact," which is typically a jury. A witness who is being offered as an expert must first establish his or her competency in the relevant field through an examination of his or her credentials. The opposing attorney is permitted to conduct a
voir dire (; often ; from an Anglo-NormanAnglo-Norman may refer to: *Anglo-Normans The Anglo-Normans ( nrf, Anglo-Normaunds, ang, Engel-Norðmandisca) were the medieval ruling class in England, composed mainly of a combination of ethnic Anglo-Saxons, ...
of the witness in order to challenge that witness’ qualifications. If qualified by the court, then the expert may testify "in the form of an opinion or otherwise" so long as: "(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case." Although experts can testify in any case in which their expertise is relevant, criminal cases are more likely to use
forensic scientists Forensic science, also known as criminalistics, is the application of science to Criminal law, criminal and Civil law (legal system), civil laws, mainly—on the criminal side—during criminal investigation, as governed by the legal standards ...
or
forensic psychologists Forensic psychology, a subfield of psychology, involves the application of psychological knowledge and methods to both civil and criminal legal questions. Traditionally, it has a broad definition as well as a narrow definition. The broader classifi ...
, whereas civil cases, such as personal injury, may use forensic engineers, forensic accountants, employment consultants or
care CARE (Cooperative for Assistance and Relief Everywhere, formerly Cooperative for American Remittances to Europe) is a major international humanitarian aid, humanitarian agency delivering emergency relief and long-term international development pro ...

care
experts. Senior
physician A physician (American English), medical practitioner (English in the Commonwealth of Nations, Commonwealth English), medical doctor, or simply doctor, is a professional who practices medicine, which is concerned with promoting, maintainin ...

physician
s – UK, Ireland, and Commonwealth
consultants A consultant (from la, consultare "to deliberate") is a professional A professional is a member of a profession or any person who earns a living from a specified professional activity. The term also describes the standards of education and tr ...
, U.S.
attending physician {{Globalize, date=September 2013 In the United States and Canada, an attending physician (also known as an attending, rendering doc, or staff physician) is a physician A physician (American English), medical practitioner (English in the ...
s – are frequently used in both the civil and criminal courts. The
Federal Court of Australia The Federal Court of Australia is an Australian superior court of record which has jurisdiction to deal with most civil disputes governed by federal law (with the exception of family law matters), along with some summary (less serious) criminal ...
has issued guidelines for experts appearing in Australian courts. This covers the format of the expert's written testimony as well as their behaviour in court. Similar procedures apply in non-court forums, such as the Australian
Human Rights and Equal Opportunity Commission The Australian Human Rights Commission is the National human rights institutions, national human rights institution of Australia, established in 1986 as the Human Rights and Equal Opportunity Commission and renamed in 2008. It is a statutor ...
.


Educating witness

The educating witness teaches the fact-finder (jury or, in a bench trial, judge) about the underlying scientific theory and instrument implementing theory. This witness is an expert witness, called to elicit opinions that a theory is valid and the instruments involved are reliable. The witness must be qualified as an expert witness, which may require academic qualifications or specific training.


Reporting witness

Called after teaching witness leaves stand. Usually the laboratory technician who personally conducted the test. Witness will describe both the test and the results. When describing test, will venture opinions that proper test procedures were used and that equipment was in good working order.


Non-testifying experts

In the U.S., a party may hire experts to help them evaluate a given case. For example, a car maker may hire an experienced mechanic to decide if its cars were built to specification. This kind of expert opinion will be protected from
discovery Discovery may refer to: * Discovery (observation), observing or finding something unknown * Discovery (fiction), a character's learning something unknown * Discovery (law), a process in courts of law relating to evidence Discovery, The Discovery ...
by the opposing party. In other words, if the expert finds evidence against their client, the opposite party will not automatically gain access to it. This privilege is similar to the
work-product doctrine In American civil procedure, the work-product doctrine protects materials prepared in anticipation of litigation from discovery (law), discovery by opposing counsel. It is also known as the work-product rule, the work-product immunity, the work-p ...
(not to be confused with
attorney–client privilege Attorney–client privilege or lawyer–client privilege is the name given to the common law In law, common law (also known as judicial precedent or judge-made law, or case law) is the body of law created by judges and similar quasi-judicial t ...
). The non-testifying expert can be present at the trial or hearing to aid the attorney in asking questions of other expert witnesses. Unlike a testifying expert, a non-testifying expert can be easily withdrawn from a case. It is also possible to change a non-testifying expert to a testifying expert before the expert disclosure date.


United States

In the
United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country Continental United States, primarily located in North America. It consists of 50 U.S. state, states, a Washington, D.C., ...

United States
, under the Federal Rule of Evidence 702 (FRE), an expert witness must be qualified on the topic of testimony. In determining the qualifications of the expert, the FRE requires the expert have had specialized education, training, or practical experience in the subject matter relating to the case."Rule 702. Testimony by Expert Witnesses". ''Cornell Law School''. Retrieved 6 September 2017. The expert's testimony must be based on facts in evidence, and should offer opinion about the causation or
correlation In statistics Statistics is the discipline that concerns the collection, organization, analysis, interpretation, and presentation of data Data (; ) are individual facts, statistics, or items of information, often numeric. In a m ...

correlation
to the evidence in drawing a conclusion. Experts in the U.S. typically are paid on an hourly basis for their services in investigating the facts, preparing a report, and if necessary,
testifying In law and in religion, testimony is a solemn attestation as to the truth of a matter. Etymology The words "testimony" and "testify" both derive from the Latin word ''testis'', referring to the notion of a disinterested Third-party source, thir ...
during pre-trial discovery, or at trial. Hourly fees range from approximately $200 to $750 or more per hour, varying primarily by the expert's field of expertise, and the individual expert's qualifications and reputation. In several fields, such as
handwriting analysis Graphology is the analysis of the physical characteristics and patterns of handwriting with attempt to identify the writer, indicate the psychological state at the time of writing, or evaluate personality characteristics. No scientific evidence ...
, where the expert compares signatures to determine the likelihood of a forgery, and medical case reviews by a physician or nurse, in which the expert goes over hospital and medical records to assess the possibility of malpractice, experts often initially charge a flat fixed fee for their initial report. As with the hourly fees discussed previously, the amount of that flat fee varies considerably based on the reviewing expert's field, experience and reputation. The expert's professional fee, plus his or her related expenses, is generally paid by the party retaining the expert. In some circumstance the party who prevails in the litigation may be entitled to recover the amounts paid to its expert from the losing party.


Scientific evidence

In
law Law is a system A system is a group of Interaction, interacting or interrelated elements that act according to a set of rules to form a unified whole. A system, surrounded and influenced by its environment, is described by its bounda ...
, scientific evidence is evidence derived from
scientific Science () is a systematic enterprise that Scientific method, builds and organizes knowledge in the form of Testability, testable explanations and predictions about the universe."... modern science is a discovery as well as an invention. ...

scientific
knowledge or techniques. Most
forensic evidence Forensic identification is the application of forensic science Forensic science, also known as criminalistics, is the application of to and , mainly—on the criminal side—during , as governed by the legal standards of and . Forensic sc ...

forensic evidence
, including genetic evidence, is scientific evidence.


''Frye'' test

The ''Frye'' test, coming from the case '' Frye v. United States'' (1923), said that admissible scientific evidence must be a result of a theory that had "general acceptance" in the scientific community. This test results in uniform decisions regarding admissibility. In particular, the judges in ''Frye'' ruled that: : ''Just when a scientific principle or discovery crosses the line between experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, 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.'' In 1923, the case of Frye v. United States instituted significant change to both criminal and civil law by addressing the use of expert witness testimony in conjunction with scientific testimony. In Frye v. United States, the defense team attempted to introduce both the results of a polygraph test administered to Frye to determine Frye's innocence as well as the testimony of an expert witness to verify and explain the results. However, the court rejected the expert's testimony, ruling that: “While courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, 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.” Through this ruling, the judge's opinion in Frye v. United States set precedent and the standard by which expert witnesses would be utilized in the court system for decades. In the federal courts, between 1948 and 1975, Frye was cited 55 times; however, the use and application was not consistent. One of the major struggles that came out of this precedent was the application to both civil and criminal cases. Many of the courts and judges had trouble interpreting the "general acceptance" notion of a particular field in a concise and non-arbitrary manner. In 2012, courts in nine states still used the ''Frye'' standard when analyzing state expert witness rules. The Federal Rules of Evidence In 1975, the United States Congress issued the Federal Rules of Evidence. FRE 702 was issued to provide a standard for expert witness testimony to be upheld by the United States court system. The rule specified that the application of expert witnesses had to be attributed to a person with “scientific or technical knowledge,” in conjunction with a list of qualifications that would quality one to be an expert in terms of “knowledge, skill, experience, training or education”. This rule thus clarified the acceptable use of expert witnesses in both criminal and civil cases. However, FRE 702 still left some courts in confusion. The courts who would use this new rule were confused as to whether FRE 702 served to bolster the "general acceptance" ruling in Frye or if FRE 702 was the replacement of this rule. For instance, in ''U.S. v. Williams'' (1978), the
Second Circuit The United States Court of Appeals for the Second Circuit (in case citations, 2d Cir.) is one of the thirteen United States Courts of Appeals. Its territory comprises the states of Connecticut, New York (state), New York and Vermont. The court ha ...
responded that “the applicable considerations or expert witness testimonyare ‘probativeness, materiality, and reliability of the evidence on the one side, and any tendency to mislead, prejudice or confuse the jury on the other.’” The court appeared to reject the previous precedent set by ''Frye''. The rationale in the Williams case was later adopted by other federal courts, including the
Third Circuit The United States Court of Appeals for the Third Circuit (in case citation Case citation is a system used by legal professionals to identify past court case A legal case is in a general sense a dispute between opposing parties which may be ...
which adopted a "reliability" test in 1984. Meanwhile, other federal courts stuck to the ''Frye'' precedent, causing a
circuit split In United States federal courts The federal judiciary of the United States is one of the three branches of the federal government of the United States The federal government of the United States (U.S. federal government or U.S. gove ...
which would not be solved until the Supreme Court set a new expert standard in ''Daubert v. Merrell Dow Pharmaceuticals, Inc.'' (1993).


Daubert standard

The
Daubert standard In United States federal law, the ''Daubert'' standard is a rule of evidence regarding the admissibility of expert witness testimony. A party may raise a ''Daubert'' motion, a special motion in limine, motion ''in limine'' raised before or during ...
arose out of the U.S. Supreme Court case ''Daubert v. Merrell Dow Pharmaceuticals, Inc.'' It provides four factors that courts ought to consider when determining whether expert testimony is admissible under the Federal Rules of Evidence: #"Whether the expert’s theory or technique can be (and has been) tested" #"Whether the theory or technique has an acceptable known or potential rate of error" #"The existence and maintenance of standards controlling the technique’s operation" #"Whether the theory or technique has attained 'general acceptance'" In 2012, twenty-two states used the ''Daubert'' test when analyzing their own expert witness rules.


United Kingdom


England and Wales

In
England and Wales England and Wales () is a legal jurisdiction covering England and Wales, two of the four countries of the United Kingdom, parts of the United Kingdom. England and Wales forms the constitutional successor to the former Kingdom of England and follows ...

England and Wales
, under the
Civil Procedure Rules The Civil Procedure Rules (CPR) were introduced in 1997 as per the Civil Procedure Act 1997 and are the rules of civil procedure Civil procedure is the body of law Law is a system A system is a group of Interaction, interacting or ...
(CPR), an expert witness is required to be independent and address his or her
expert report An expert report is a study written by one or more experts, authorities that states findings and offers opinions. In law, expert reports are generated by expert witnesses offering their opinions on points of controversy in a legal case and are typi ...
to the court. A witness may be jointly instructed by both sides if the parties agree to this, especially in cases where the liability is relatively small. Under the CPR, expert witnesses may be instructed to produce a joint statement detailing points of agreement and disagreement to assist the court or tribunal. The meeting is held quite independently of instructing lawyers, and often assists in resolution of a case, especially if the experts review and modify their opinions. When this happens, substantial trial costs can be saved when the parties to a dispute agree to a settlement. In most systems, the
trial In law Law is a system A system is a group of Interaction, interacting or interrelated elements that act according to a set of rules to form a unified whole. A system, surrounded and influenced by its environment, is described by ...

trial
(or the procedure) can be suspended in order to allow the experts to study the case and produce their results. More frequently, meetings of experts occur before trial. Experts charge a professional fee which is paid by the party commissioning the report (both parties for joint instructions) although the report is addressed to the court. The fee must not be contingent on the outcome of the case. Expert witnesses may be
subpoena A subpoena (; also subpœna, supenna or subpena) or witness summons is a writ In , a writ (Anglo-Saxon ''gewrit'', Latin ''breve'') is a formal written order issued by a body with administrative or judicial ; in modern usage, this body is gen ...
ed (issued with a witness summons), although this is normally a formality to avoid court date clashes.Davie v Magistrates of Edinburgh 1953 SC 34


Scotland

In
Scots Law Scots law () is the legal system The contemporary national legal systems are generally based on one of four basic systems A system is a group of interacting or interrelated elements that act according to a set of rules to form a unified ...
, '' Davie v Magistrates of Edinburgh'' (1953) provides authority that where a witness has particular knowledge or skills in an area being examined by the court, and has been called to court in order to elaborate on that area for the benefit of the court, that witness may give evidence of his/her opinion on that area.


Comparison of UK and US law


Similarities


Purpose

* ''United Kingdom'': Expert evidence is to furnish the Judge or jury with necessary scientific criteria for testing the accuracy of their conclusions * ''United States'': Expert evidence is admissible on the basis that the knowledge will help the trier of fact to understand the evidence or to determine a fact in issue


Qualification

* ''United Kingdom'': Expert witness is qualified to give evidence, where the court itself cannot form an opinion and special study, skill or experience is required for the purpose * ''United States'': An expert witness is qualified by knowledge, skill, experience or education


Admissibility of Evidence

* ''United Kingdom'': Expert evidence must be provided in as much detail as possible in-order to convince the judge that the expert's opinions are well founded * ''United States'': Expert testimony to be based on sufficient facts, data or products of a credible source of test and tried principles and methods


Differences


Conduct

* ''United Kingdom'': Expert's “duties to the Court override any obligation to the person from whom they have received instructions or have been paid by” * ''United States'': Expert's duty is not formally defined under the Federal Rules of Civil Procedure /Evidence


Depositions

* ''United Kingdom'': Expert evidence is examined before the Judge (or Arbitrator) * ''United States'': Expert evidence can be compelled to deposition


Ultimate Issues

* ''United Kingdom'': Expert opinion on ultimate issue is not admissible * ''United States'': Expert opinion on ultimate issue is admissible


See also

* Ambush defence *
Daubert standard In United States federal law, the ''Daubert'' standard is a rule of evidence regarding the admissibility of expert witness testimony. A party may raise a ''Daubert'' motion, a special motion in limine, motion ''in limine'' raised before or during ...
and '' Daubert v. Merrell Dow Pharmaceuticals, Inc.'' *
Death of an Expert Witness ''Death of an Expert Witness'' is an Adam Dalgliesh novel by P. D. James, published in 1977. It begins with the discovery of a murder by a young girl. However, this is not the focus of the novel, but rather is used as a method to introduce the r ...
- a novel * Employment consultant * Expert shopping *
Forensic accountant Forensic accountants are experienced auditorAn auditor is a person or a firm appointed by a company A company, abbreviated as co., is a Legal personality, legal entity representing an association of people, whether Natural person, natural, Lega ...
* Forensic economics *
Forensic engineering Forensic engineering has been defined as ''"the investigation of failures - ranging from serviceability to catastrophic - which may lead to legal activity, including both civil and criminal".'' It includes the investigation of materials Mate ...
*
Forensic science Forensic science, also known as criminalistics, is the application of to and , mainly—on the criminal side—during , as governed by the legal standards of and . Forensic scientists collect, preserve, and analyze scientific during the c ...
*
Forensic psychology Forensic psychology, a subfield of psychology Psychology is the scientific Science () is a systematic enterprise that builds and organizes knowledge Knowledge is a familiarity or awareness, of someone or something, such as facts ...
* Forensic video analysis *
Frye standard The ''Frye'' standard, ''Frye'' test, or general acceptance test is a test used in United States courts to determine the admissible evidence, admissibility of scientific evidence. It provides that expert opinion based on a scientific technique is ...
of evidence * Gibson's law * ''
In limine In Law of the United States, U.S. law, a motion ''in limine'' (; "at the start", literally, "on the threshold") is a motion (legal), motion, discussed outside the presence of the jury, to request that certain testimony be excluded. A motion ''in l ...
'' * ''
Jones v Kaney ''Jones v Kaney'' Case citation,
011 An international call prefix or dial out code is a trunk prefix A trunk prefix is a digit sequence to be dialed before a telephone number to initiate a telephone call A telephone call is a connection over a telephone network between the called ...
UKSC 13 is a 2011 decision of the Supreme Court of the United Kingdom on whether expert witnesses retained by a party in litigation can be sued for professional negligence in England and Wales, or whether t ...
'' — English caselaw abolishing witness immunity from civil action for negligence * ''
Kumho Tire Co. v. Carmichael ''Kumho Tire Co. v. Carmichael'', 526 U.S. 137 (1999), is a United States Supreme Court case that applied the Daubert Standard, ''Daubert'' standard to expert testimony from non-scientists. Background Patrick Carmichael was driving his minivan o ...
'' *
Questioned document examination In forensic science, questioned document examination (QDE) is the examination of document A document is a writing, written, drawing, drawn, presented, or memorialized representation of thought, often the manifestation of nonfiction, non-fiction ...
* '' R v Mohan'' — Canadian case law establishing qualifications for expert witnesses *
Saisie-contrefaçonUnder French law, the ''saisie-contrefaçon'' is a means of proof of the Intellectual property infringement, infringement and, more generally, any violation of an intellectual property right. This Procedural law, procedure permits the holder of the i ...
* Traffic collision reconstruction * Ultimate issue


References


Bibliography

* Bronstein, DA, ''Law for the Expert Witness'', CRC Press,2nd Ed (1999). * Dwyer, D, ''The Judicial Assessment of Expert Evidence'', Cambridge University Press (2008). * * Jasanoff, Sheila, ''Science at the Bar: Law, Science, and Technology in America'' (Cambridge, Massachusetts: Harvard University Press, 1997). * Reynolds, MP and King, PSD, ''The Expert Witness and his Evidence'', Blackwell (1992). * Smith, D, ''Being an Effective Expert Witness'', Thames Publishing (1993).


External links


Expert Testimony in Federal Civil Trials: A Preliminary Analysis (pdf)
(Federal Judicial Center, 2000) * Project on Scientific Knowledge and Public Policy
''Daubert''-The Most Influential Supreme Court Ruling You've Never Heard Of (pdf)
* Kenton K. Yee
Dueling Experts and Imperfect Verification
28.4 International Review of Law and Economics, 246-255 (2008) * Cole, Simon A.
Where the Rubber Meets the Road: Thinking about Expert Evidence as Expert Testimony

Archive
. '' Villova Law Journal''. Villanova University School of Law. Volume 52, Issue 4, Article 4. p. 803-840. {{DEFAULTSORT:Expert Witness Evidence law Forensic evidence