Successful Expert Testimony

Max M. Houck, Christine Funk, Harold Feder

• Publisher: CRC Press
• Year: 2018
• ISBN:
  9781315305691
• Edition: 5
• Topic: Diritto
• Subtopic: Scienza forense

A major revision of the landmark book on expert testimony Feder's Succeeding as an Expert Witness, Successful Expert Testimony, Fifth Edition highlights the book's value to both attorneys and expert witnesses in promoting effective, impactful courtroom testimony. The book outlines the role of expert testimony in a trial, including explanations of methods, testing, and science, the legal process, and an overview of the roles of each player.

Succeeding as an expert witness requires a basic understanding of who and what experts are and what role they play in rendering their opinions within the courts. The new edition has been fully updated to present key information on the most vital topics, including the deposition, a discussion of false or unsupported testimony, adherence to scientific principles, and direct and cross-examination testimony of expert witnesses. Each chapter includes key terms, review questions, and thought-provoking discussion questions for further consideration of the topics addressed.

Given many high profile cases and increasing incidents of misconduct, this edition focuses heavily on the role of ethics in expert testimony and forensic practice. The full revised chapter on ethics, covers unethical conduct of forensic witnesses, admissibility of expert testimony, inter-professional relations, abuse of and by experts, and forensic professional codes of ethics.

Offering useful career insights and established trial-tested tips, forensic scientist Max M. Houck and attorney Christine Funk update renowned lawyer Harold A. Feder's classic book. Successful Expert Testimony, Fifth Edition serves as an ideal reference for forensic science students entering the work force—in labs and investigative positions—in addition to serving as a crucial resource for more experienced civil, private, and testifying experts in all disciplines.

1

Expert Witnesses

An Overview

Key Terms

Appellate court

Burden of proof

Civil law

Complainant

Criminal justice process

Criminal law

Depositions

Discovery

Expert

Federal Rule of Evidence

Grand jury

Jargon

Jury of peers

Lay witness

Opinion

Petit jury

Prosecutor’s information

Sixth Amendment of the Constitution of the United States

Technique

Work product

It is the job of the law, and not science, to determine how science is to be used in the courts. But in another sense, our passivity has served both ourselves and the legal system poorly. It is the job of science, and not of law, to determine what is good science and what is not.1

Introduction

Succeeding as an expert witness requires a basic understanding of who and what experts are. The U.S. legal system permits certain witnesses to render opinions based on data rather than merely reciting information. These opinions are sought to explain past, present, and future events. You may be or already are such a witness. In this book, you will learn why experts are unique and how they are selected to be witnesses. An expert is a special, often controversial, position in our court and hearing procedures. Federal Rule of Evidence 702 defines Testimony by Experts:

If scientific, technical, or other specialized knowledge will assist the trier of fact [judge or jury] 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, if (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.

This may seem to be a moot description—what’s the big deal? Contrast Rule 702 with Rule 701, Opinion Testimony by Lay Witness:

If the witness is not testifying as an expert, the witness testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

If you are guessing that a “lay witness” is everybody who does not possess “scientific, technical, or other specialized knowledge,” you are correct. In religious organizations, all persons who are not members of the clergy or any monastic order are called “laypersons” and collectively make up the laity. The term in the law, in the context of any specialized profession, is used to refer to those who are not members of that profession, in this case, scientists, technicians, or other specialists. If you are not one of these specific people, your testimony must be limited to any facts—what you have experienced with your five senses—or opinions drawn from those experiences.

Experts, on the other hand, are given a special license in testimony: they can testify about their professional opinion based on their education, training, and experience in a specific topic. A recent article described an expert as:

a person who, by virtue of training and experience, is able to do things the rest of us cannot. Experts are not only proficient in what they do, but are also smooth and efficient in the actions they take. Experts know a great many things and have tricks for applying these things to problems or tasks. Experts are good at plowing through irrelevant information in order to get at basic issues or actual problems. Experts are also good at recognizing problems as instances of ones with which they are familiar, generalizing alternative solutions and making good choices among the alternatives.

A few examples may help clarify the difference between laity and experts. Here are some statements of testimony designated either with L for laity or E for expert.

L: The man I saw leaving the bank was tall, about 6′.

E: The individual in the bank surveillance video is between 5′11″ and 6′2″ based on the photogramametric calculations I performed.

L: The woman was wearing a blue sweater.

E: The victim’s sweater was composed of dark blue round polyester and blue bi-lobed acrylic fibers.

L: The guy looked like he was bleeding.

E: The victim has suffered a contusion, one and a half to two inches in diameter over his left orbital at the juncture of the left temporal bone.

It is not only the wording characteristic of a particular group (jargon), in this case, experts, that makes these examples expert testimony, it is the knowledge, skills, and expertise behind the statements and the interpretations that result from them. The expert’s knowledge of methods (photogramm...