Expert Testimony
What’s the expert’s role
FOCProffered Evidence
Evidentiary Hypothesis
P thumb numb
Thumb numbness makes it SML that spine was injured
P spine injured
What’s the
expert’s role?
Expert testifies to the EH
Frye Test
• What is the relevant scientific community.
• Has that community generally accepted this technique as reliable
General Acceptance v. Substantial Acceptance
Daubert Approach
• Do I (Judge) think this technique is reliable
• Do I think it should be barred under FRE 403.
What are the Daubert Factors
1. Testability
2. Publication & Peer Review
3. Error Rate
4. Protocols for Use
5. Acceptance in Scientific Community
What
does
Kum
ho tell
us ab
out thes
e fa
ctors
?
Ellen Expert & the Roulette Wheel
Deciding if Ellen Is an Expert
Do Problem 46
Qualify Willie As an Expert
Have Willie Explain His Methodology
Run Willie’s Methodology Through Daubert Factors
1. Testability
2. Publication & Peer Review
3. Error Rate
4. Protocols for Use
5. Acceptance in Scientific Community
When Is Expert Testimony Permitted?
Helpful v. Outside Lay Knowledge
FOCProffered Evidence
Evidentiary Hypothesis
D called P a N__
ER’s who use racial epithets are SML to fire because of race.
ER fired because of race
Is this outside a lay jury’s knowledge?
Would expert’s testimony on issue help
the jury?
What’s the expert’s role
FOCProffered Evidence
Evidentiary Hypothesis
P thumb numb
Thumb numbness makes it SML that spine was injured
P spine injured
Is this outside a lay jury’s knowledge?
Would expert’s testimony on issue help
the jury?
Helpful v. Outside Lay Knowledge
When Is Expert Testimony Required (for P to Make a Submissible Case)?
When reasonable jurors could not decide whether to draw the inference without expert assistance?
Thumb numbness makes it SML that spine was injured
ER’s who use racial epithets are SML to fire because of race.
Are Either of These Required?
On What Facts Can an Expert Base an Opinion?
Common Law FRE
Facts supported by evidence admitted at trial
Facts of a sort generally relied on by experts in
the field.
No
How Is Basis Disclosed to Jury?Common Law FRE
Listed in Hypothetical Question
Expert Testifies to Basis Facts Based on Personal Knowledge
Expert testifies to conclusion, and
basis is disclosed (if at all) by later questions or on
cross.
No
Do Problem 47
Do Problem 48
Do Problem 49