What Criteria Might Be Used to Establish Someone as an Expert Witness?

Person whose opinion is accustomed by the judge as an skillful

An expert witness, particularly in common law countries such every bit the U.k., Australia, and the Usa, is a person whose stance past virtue of pedagogy, training, certification, skills or experience, is accepted by the estimate equally an expert. The judge may consider the witness's specialized (scientific, technical or other) opinion about evidence or about facts before the court within the expert'southward area of expertise, to be referred to equally an "adept opinion".^[1] Expert witnesses may also deliver "expert show" within the expanse of their expertise.^[2] Their testimony may be rebutted by testimony from other experts or by other bear witness or facts.

History

The forensic expert practice is an ancient profession. For example, in aboriginal Babylonia, midwives were used as experts in determining pregnancy, virginity and female person fertility. Similarly, the Roman Empire recognized midwives, handwriting experts and land surveyors as legal experts.^[3] The codified use of proficient witnesses and the admissibility of their testimony and scientific evidence has developed significantly in the Western court arrangement over the terminal 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 past Lord Mansfield in the instance 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, to provide scientific rationale backside the proposed legislation. The determination by the English Court to permit for an expert to provide contextual background and detail on a case is often cited as the root of modern rules on practiced testimony.^[4] ^[5]

Role

Practiced witnesses are called upon in the courtroom arrangement to serve as an objective party to the lawsuit and never part as an abet for one side or the other. Skillful witnesses are nowadays in litigation to explain complicated scientific issues, not to influence the jury or guess with fervor. The principal responsibilities of good witnesses are to evaluate potential problems, defects, deficiencies, or errors only when able to fully capeesh a process or organization.^[6] 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 fabricated.

Typically, experts are relied on for opinions on severity of injury, degree of sanity, cause of failure in a car or other device, loss of earnings and associated benefits, intendance costs, and the like. In an intellectual property case an skillful 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 skillful's personal relation to the defendant is considered and commonly adjudged to exist irrelevant.

The tribunal itself, or the judge, can in some systems telephone call upon experts to technically evaluate a certain fact or action, in order to provide the courtroom with a consummate knowledge on the fact/action it is judging. The expertise has the legal value of an acquisition of information. The results of these experts are then compared to those by the experts of the parties.

The expert has a great responsibleness, and especially in penal trials, and perjury by an expert is a severely punished crime in well-nigh countries. The utilize of expert witnesses is sometimes criticized in the United States because in civil trials, they are often used past both sides to advocate differing positions, and it is left up to a 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 ground in the submitted information; such experts are commonly disparaged as "hired guns."^[vii] ^[8]

Qualifications

An expert witness at the fourth dimension of trial is qualified by the courtroom and must be re-qualified each time that person comes to trial for the offer of opinions. The qualification is given by each trial judge and takes place regardless of prior appearances by a particular expert witness. Skilful witnesses are those whom the courtroom has accounted qualified to speak on a topic to provide groundwork to anyone on a lay jury.^[9]

Duties in United States Courts

In loftier stakes cases multiple experts, in multiple topics, are oft retained past each party. Although it is however relatively rare, the court itself may also retain its own contained good. In all cases, fees paid to an expert may not be contingent on the event of the example.

Expert testify is ofttimes the most important component of many ceremonious and criminal cases today. Fingerprint examination, blood analysis, Deoxyribonucleic acid fingerprinting, and forensic firearm test are common kinds of expert prove heard in serious criminal cases. In civil cases, the piece of work of accident analysis, forensic engineers, and forensic accountants is usually important, the latter to appraise damages and costs in long and circuitous cases. Intellectual property and medical negligence cases are typical examples.

Electronic evidence has besides entered the courtroom every bit critical forensic testify. Audio and video evidence must exist authenticated by both parties in whatever litigation past a forensic skillful who is also an expert witness who assists the court in understanding details well-nigh that electronic evidence.

Voice-mail recordings and closed-circuit tv set systems produce electronic show often used in litigation, more then today than in the past. Video recordings of bank robberies and sound recordings of life threats are presented in court rooms past electronic skillful witnesses.

Rules of evidence and code of procedure

Hearsay rule

One important rule that applies to the adept witness simply not the percipient witness is the exception to the hearsay dominion. A percipient witness tells just what he/she actually knows about a case and nothing more than. Percipient witnesses cannot give opinions nor theorize regarding a hypothetical set of conditions.^[half-dozen] Conversely, the court does allow an expert to bear witness about issues that may non be personally known past them. This allows the adept to rely upon scientific articles, discussions with colleagues on the subject, testimony read in preparation for testimony in the instance and similar pieces of information not personally known to the good.

Chain of custody

It is important that good witnesses who handle evidence maintain a proper chain of custody such that they are able to authenticate the evidence, testify 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 "concatenation of custody" document,^[6] a grade that contains the item's description, the fourth dimension and engagement 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 proficient witness, the weight of his/her bear witness 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 upwards to developing a foundation of knowledge for credibility of a testimony. Earlier trial, all experts must prepare a report summarizing their analysis and conclusions and share the written report with all other parties.^[6] This allows other parties to finer cross-examine the skillful.

Types

Testifying experts

If the witness needs to testify in court, the privilege is no longer protected. The skillful witness's identity and nearly all documents used to prepare the testimony will become discoverable. Usually an experienced lawyer will advise the expert non to accept notes on documents because all of the notes will be available to the other political party.

An skillful testifying in a U.s.a. federal court must satisfy the requirements of Fed. R. Evid. 702.^[ane] 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 every bit an adept must first establish his or her competency in the relevant field through an examination of his or her credentials. The opposing chaser is permitted to conduct a voir dire of the witness in order to claiming that witness' qualifications. If qualified past the court, then the expert may prove "in the form of an opinion or otherwise" so long every bit: "(1) the testimony is based upon sufficient facts or information, (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 bear witness in any case in which their expertise is relevant, criminal cases are more than likely to use forensic scientists or forensic psychologists, whereas civil cases, such equally personal injury, may use forensic engineers, forensic accountants, employment consultants or care experts. Senior physicians – Great britain, Ireland, and Republic consultants, U.S. attending physicians – are frequently used in both the civil and criminal courts.

The Federal Courtroom of Commonwealth of australia has issued guidelines for experts appearing in Australian courts.^[ten] This covers the format of the skilful's written testimony as well as their behaviour in courtroom. Similar procedures apply in not-court forums, such as the Australian Human Rights and Equal Opportunity Commission.^[xi]

Educating witness

The educating witness teaches the fact-finder (jury or, in a demote trial, guess) about the underlying scientific theory and musical instrument implementing theory. This witness is an expert witness, called to arm-twist 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 grooming.

Reporting witness

Chosen subsequently teaching witness leaves stand. Commonly the laboratory technician who personally conducted the examination. Witness will describe both the test and the results. When describing test, will venture opinions that proper exam procedures were used and that equipment was in proficient working gild.^[12]

Non-testifying experts

In the U.S., a political party may hire experts to assistance them evaluate a given case. For example, a car maker may rent an experienced mechanic to decide if its cars were congenital to specification. This kind of skillful stance will be protected from discovery by the opposing party. In other words, if the expert finds evidence against their client, the contrary political party will not automatically gain admission to it. This privilege is similar to the work-product doctrine (not to be confused with attorney–client privilege).

The not-testifying expert can be nowadays at the trial or hearing to aid the attorney in asking questions of other skilful witnesses. Unlike a testifying expert, a non-testifying practiced tin be hands withdrawn from a example. Information technology is also possible to change a non-testifying skilful to a testifying skilful earlier the expert disclosure engagement.^[13]

Us

In the Us, under the Federal Rule of Bear witness 702 (FRE), an expert witness must be qualified on the topic of testimony. In determining the qualifications of the expert, the FRE requires the proficient take had specialized education, training, or applied experience in the field of study thing relating to the instance.^[xiv] The skilful'south testimony must be based on facts in bear witness, and should offer opinion most the causation or correlation to the show in drawing a determination.^[xiv]

Experts in the U.S. typically are paid on an hourly footing for their services in investigating the facts, preparing a written report, and if necessary, testifying during pre-trial discovery, or at trial. Hourly fees range from approximately $200 to $750 or more per hour, varying primarily by the practiced'south field of expertise, and the individual adept's qualifications and reputation. In several fields, such as handwriting analysis, where the skilful compares signatures to decide the likelihood of a forgery, and medical case reviews by a physician or nurse, in which the practiced goes over hospital and medical records to appraise the possibility of malpractice, experts often initially charge a flat stock-still fee for their initial report. As with the hourly fees discussed previously, the amount of that flat fee varies considerably based on the reviewing good's field, experience and reputation.^[xv]

The skillful's professional fee, plus his or her related expenses, is generally paid past the political party retaining the skillful. In some circumstance the political party who prevails in the litigation may be entitled to recover the amounts paid to its expert from the losing party.^{[ citation needed ]}

Scientific evidence

In law, scientific evidence is evidence derived from scientific noesis or techniques. Most forensic evidence, including genetic show, is scientific testify.^{[ citation needed ]}

Frye exam

The Frye examination, coming from the example Frye v. U.s. (1923), said that open-door scientific evidence must be a result of a theory that had "full 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 ascertain. Somewhere in this twilight zone the evidential forcefulness of the principle must be recognized, and while courts will become a long way in albeit expert testimony deduced from a well-recognized scientific principle or discovery, the matter from which the deduction is made must be sufficiently established to accept gained general acceptance in the particular field in which it belongs. ^[sixteen]

In 1923, the case of Frye v. United States instituted significant alter to both criminal and civil law past addressing the apply of good witness testimony in conjunction with scientific testimony. In Frye v. United states, the defense team attempted to innovate both the results of a polygraph test administered to Frye to determine Frye's innocence likewise as the testimony of an expert witness to verify and explain the results.

All the same, the court rejected the skilful's testimony, ruling that: "While courts will go a long mode in admitting practiced testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is fabricated must be sufficiently established to have gained full general acceptance in the item field in which it belongs."^[five]

Through this ruling, the judge's stance in Frye v. U.s. set precedent and the standard by which expert witnesses would be utilized in the court system for decades. In the federal courts, betwixt 1948 and 1975, Frye was cited 55 times; however, the utilize and application was not consistent.^[5] Ane 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 "full general acceptance" notion of a particular field in a concise and not-arbitrary way. In 2012, courts in nine states still used the Frye standard when analyzing land adept witness rules.^[17]

The Federal Rules of Evidence

In 1975, the United states Congress issued the Federal Rules of Testify. FRE 702 was issued to provide a standard for proficient witness testimony to be upheld by the U.s.a. court system. The rule specified that the application of expert witnesses had to exist attributed to a person with "scientific or technical noesis," in conjunction with a list of qualifications that would quality one to exist an expert in terms of "knowledge, skill, feel, training or instruction".^[14] This rule thus clarified the acceptable use of expert witnesses in both criminal and ceremonious cases.

However, FRE 702 yet left some courts in confusion. The courts who would apply this new rule were dislocated equally to whether FRE 702 served to bolster the "general credence" ruling in Frye or if FRE 702 was the replacement of this rule. For example, in U.S. five. Williams (1978), the 2d Circuit responded that "the applicable considerations [for expert witness testimony] are 'probativeness, materiality, and reliability of the evidence on the one side, and any tendency to mislead, prejudice or misfile the jury on the other.'"^[fourteen] The court appeared to refuse the previous precedent gear up by Frye.^[18] The rationale in the Williams instance was afterwards adopted by other federal courts, including the 3rd Excursion which adopted a "reliability" test in 1984.^[18] Meanwhile, other federal courts stuck to the Frye precedent, causing a circuit split which would not be solved until the Supreme Courtroom fix a new expert standard in Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993).^[18]

Daubert standard

The Daubert standard arose out of the U.South. Supreme Courtroom case Daubert five. Merrell Dow Pharmaceuticals, Inc. It provides four factors that courts ought to consider when determining whether expert testimony is open-door under the Federal Rules of Bear witness:^[18] ^[nineteen]

"Whether the skillful'south theory or technique tin exist (and has been) tested"
"Whether the theory or technique has an adequate 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-ii states used the Daubert test when analyzing their ain expert witness rules.^[17]

United Kingdom

England and Wales

In England and Wales, under the Civil Procedure Rules (CPR), an practiced witness is required to be independent and address his or her skilful report to the court. A witness may exist 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 argument 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 concur to a settlement. In most systems, the trial (or the procedure) tin 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 political party commissioning the report (both parties for joint instructions) although the study is addressed to the court. The fee must not be contingent on the effect of the case. Expert witnesses may be subpoenaed (issued with a witness summons), although this is unremarkably a formality to avoid court date clashes.^[twenty]

Scotland

In Scots Constabulary, Davie v Magistrates of Edinburgh (1953) provides dominance that where a witness has particular knowledge or skills in an area being examined by the courtroom, and has been called to court in gild to elaborate on that area for the benefit of the court, that witness may requite prove of his/her opinion on that area.

Comparing of Great britain and The states law

Similarities

Purpose

Uk: Expert testify is to replenish the Gauge or jury with necessary scientific criteria for testing the accuracy of their conclusions
Usa: Skillful testify is open-door on the basis that the cognition will help the trier of fact to sympathise the show or to make up one's mind a fact in upshot

Qualification

United Kingdom: Expert witness is qualified to give evidence, where the court itself cannot form an stance and special study, skill or experience is required for the purpose
United States: An skilful witness is qualified by cognition, skill, experience or education

Admissibility of Testify

Uk: Expert testify must exist provided in as much detail equally possible in-society to convince the gauge that the practiced'due south opinions are well founded
United states: Good testimony to be based on sufficient facts, data or products of a credible source of exam and tried principles and methods

Differences

Deport

United Kingdom: Expert'southward "duties to the Court override whatsoever obligation to the person from whom they take received instructions or have been paid by"
United States: Expert'south duty is not formally defined under the Federal Rules of Civil Procedure /Evidence

Depositions

Britain: Practiced evidence is examined before the Judge (or Arbitrator)
Us: Expert prove tin be compelled to deposition

Ultimate Issues

United Kingdom: Expert opinion on ultimate issue is not admissible
United States: Expert stance on ultimate event is admissible

References

^ ^a ^b "Federal Rules of Testify, Rule 702. Testimony by Expert Witnesses". Legal Information Institute. Cornell Law School. 30 November 2011. Retrieved 21 November 2018.
^ Black's Police force Lexicon, manufactures "Testify", "Expert", "Witness"
^ "Forensic Ideals and the Skillful Witness". 2007. doi:x.1007/978-0-387-35383-8
^ Rosemary J. Erickson, Rita James Simon, The Employ of Social Science Information in Supreme Court Decisions (1998), p. 19/
^ ^a ^b ^c Ryskamp, Dani (x May 2018). "A Cursory History of Expert Witnesses in U.S. Courts". The Expert Found . Retrieved 2 July 2019.
^ ^a ^b ^c ^d Cohen, Kenneth (2015-08-05). Practiced Witnessing and Scientific Testimony : A Guidebook, 2d Edition. Chapman and Hall/CRC. ISBN 9781498721097.
^ Snow, J.Due north., & Weed, R. (1997). Mental health forensic issues in Georgia: The role of the expert witness. Georgia Journal of Professional Counselors, 53-65.
^ Snow, J.N. & Weed, R. (1996). Forensic issues in mental wellness: The role of the adept witness. Journal of Legal Nurse Consulting, 7(4), 2-thirteen.
^ "Forensic Ethics and the Skillful Witness". 2007. doi:10.1007/978-0-387-35383-8.
^ Guidelines for Expert Witnesses in Proceedings in the Federal Court of Australia, Practice Direction, (Federal Courtroom of Australia, 2007)
^ The accidental practiced witness, Tom Worthington, Information Age (IDG, 2005)
^ Carlson, Ronald L.; Imwinkelried, Edward J.; Kionka, Edward J. (1991). Prove in the nineties: cases, materials, and problems for an age of science and statutes. Michie Co. ISBN978-0-87473-740-0.
^ Eri J.D., Christopher (19 November 2013). "What are the differences between an practiced witness and a consultant non testifying expert". Forensis Group . Retrieved 19 November 2013.
^ ^a ^b ^c ^d "Rule 702. Testimony by Expert Witnesses". Cornell Law School. Retrieved half dozen September 2017.
^ Matson, Jack 5. (2012). Effective Expert Witnessing, Fifth Edition: Practices for the 21st Century. CRC Press. pp. 107–110. ISBN 1466578645. Retrieved 12 Dec 2017.
^ Frye v. Usa, 293 F. 1013 (D.C. Cir. 1923).
^ ^a ^b Fisher, George (2013). Evidence (3 ed.). New York. pp. 807–10. ISBN978-1-60930-060-9. OCLC 823514237.
^ ^a ^b ^c ^d Ryskamp, Dani Alexis; J.D. (2018-05-10). "A Brief History of Expert Witnesses in U.South. Courts". Expert Establish . Retrieved 2021-11-01 .
^ Daubert 5. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).
^ Davie v Magistrates of Edinburgh 1953 SC 34

Bibliography

Bronstein, DA, Police for the Expert Witness, CRC Press,second Ed (1999).
Dwyer, D, The Judicial Assessment of Practiced Prove, Cambridge University Press (2008).
Federal Judicial Center; National Research Quango, eds. (2011). Reference Manual on Scientific Testify (3rd. ed.). Washington, DC: National Academies Press. ISBN978-0-309-21421-6.
Jasanoff, Sheila, Science at the Bar: Constabulary, Science, and Technology in America (Cambridge, Massachusetts: Harvard University Printing, 1997).
Reynolds, MP and Male monarch, PSD, The Expert Witness and his Prove, Blackwell (1992).
Smith, D, Being an Constructive Expert Witness, Thames Publishing (1993).

External links

Expert Testimony in Federal Ceremonious Trials: A Preliminary Assay (pdf) (Federal Judicial Center, 2000)
Project on Scientific Cognition and Public Policy. Daubert-The Well-nigh Influential Supreme Court Ruling Y'all've Never Heard Of (pdf)
Kenton Thousand. Yee, Dueling Experts and Imperfect Verification, 28.4 International Review of Police force and Economics, 246-255 (2008)
Cole, Simon A. "Where the Rubber Meets the Route: Thinking about Expert Prove every bit Good Testimony" (Archive). Villova Law Journal. Villanova University School of Police. Volume 52, Outcome 4, Article 4. p. 803-840.

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Source: https://en.wikipedia.org/wiki/Expert_witness