Monday, May 6, 2013

Expert Witnesses

A few points to know about experts, as you study Evidence in preparation for the MBE:

Questions arise as to whether a witness is allowed to provide an opinion regarding a subject-matter that requires specialized knowledge. The Federal Rules of Evidence does not allow for such testimony by a lay witness, but may allow such testimony by an expert. So, then, who is an expert, and when is such testimony allowable?

An expert is one who possesses specialized knowledge, skill, experience, training, and education. If the subject-matter is one where scientific, technical or other specialized knowledge would assist the trier of fact, then an expert may be allowed to provide opinion testimony, provided that the witness has been qualified as an expert, the expert possesses reasonable probability regarding his opinion, and the opinion is supported by a proper factual basis. The factual basis will be proper if it is based on the expert’s personal observation, facts made known to the expert at trial, or facts not known personally but supplied to the expert outside the courtroom and of a type reasonably relied upon by experts in the particular field.

Also note that other commonly tested questions within this area deal with the cross-examination of experts. If an expert has, on direct examination, established as reliable authority a certain publication, the expert may be cross-examined as to any statement contained in that publication. Even if the expert has not personally established such facts as reliable, the statements can still be used to cross-examine the expert if another expert established the reliability, or if the court chooses to take judicial notice of the reliability. These statements may be used not only to impeach the expert, but also as evidence of the truth of the matter asserted, as these statements fall within an exception to the rule against hearsay.


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