Expert witness

An expert witness, professional witness or judicial expert is a witness, who by virtue of education, training, skill, or experience, is believed to have expertise and specialised knowledge in a particular subject beyond that of the average person, sufficient that others may officially and legally rely upon the witness's specialized (scientific, technical or other) opinion about an evidence or fact issue within the scope of his expertise, referred to as the expert opinion, as an assistance to the fact-finder.^[1] Expert witnesses may also deliver expert evidence about facts from the domain of their expertise.^[2] At times, their testimony may be rebutted with a learned treatise, sometimes to the detriment of their reputations.

In Scots Law, 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 opinion on that area.^[3]

Experts in the real world

Typically, experts are relied on for opinions on severity of injury, degree of sanity, cause of failure in a machine or other device, loss of earnings, care costs, and the like. In an intellectual property 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 irrelevant.

The tribunal itself, or the judge, can in some systems call upon experts to technically evaluate a certain fact or action, 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 heavy responsibility, especially in penal trials, and perjury by an expert is a severely punished crime in most countries. The use of expert witnesses is sometimes criticized in the 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 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."^[4][5]

Duties of experts

In England and Wales, under the Civil Procedure Rules 1998 (CPR), an expert witness is required to be independent and address his or her expert report 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 are usually 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 (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 subpoenaed (issued with a witness summons), although this is normally a formality to avoid court date clashes.

In the 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 specialized education, training, or practical experience in the subject matter relating to the case.^[6] The expert's testimony must be based on facts in evidence, and should offer opinion about the causation or correlation to the evidence in drawing a conclusion.

History

The earliest known use of an expert witness in English law came in 1782, when a court that was hearing litigation relating to the silting-up of Wells harbour in Norfolk accepted evidence from a leading civil engineer, John Smeaton. This decision by the court to accept Smeaton's evidence is widely cited as the root of modern rules on expert evidence. However, it was still such an unusual feature in court that in 1957 in the Old Bailey, Lord Justice Patrick Devlin could describe the case of suspected serial killer Dr John Bodkin Adams thus: "It is a most curious situation, perhaps unique in these courts, that the act of murder has to be proved by expert evidence."^[7]

On the other hand, expert evidence is often the most important component of many civil and criminal cases today. Fingerprint examination, blood analysis and DNA fingerprinting 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 and costs in long and complex cases. Intellectual property and medical negligence 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 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.

Non-testifying experts

In the U.S., a party can hire experts to help him/her evaluate the 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. If the expert finds something that is against its client, the opposite party will not know it. This privilege is similar to the work product protected by the attorney/client privilege. The non-testifying expert can be present at trial or hearing to aid the attorney in asking questions of other expert witnesses.

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.^[1] 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 qualified 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 or forensic psychologists, whereas civil cases, such as personal injury, may use forensic engineers, forensic accountants, employment consultants or care experts. Senior physicians – UK, Ireland, and Commonwealth consultants, U.S. attending physicians – are frequently used in both the civil and criminal courts.

The Federal Court of Australia has issued guidelines for experts appearing in Australian courts.^[8] 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.^[9]

See also

• Ambush defence
• Daubert Standard and Daubert v. Merrell Dow Pharmaceuticals
• Death of an Expert Witness - a novel
• Employment consultant
• Expert shopping
• Expertpages
• Forensic accountant
• Forensic economics
• Forensic engineering
• Forensic science
• Forensic psychology
• Forensic video analysis
• Frye Standard of evidence
• Gibson's law
• In limine
• Jones v Kaney — English caselaw abolishing witness immunity from civil action for negligence
• Kumho Tire Co. v. Carmichael
• Questioned document examination
• Saisie-contrefaçon
• R. v. Mohan — Canadian caselaw establishing qualifications for expert witnesses
• Ultimate issue
• Vehicular accident reconstruction

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).
• 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

• Experts & Institutions: Centre for the study of expert knowledge in law and society
• 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)

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