Evidence spring 2017 outline lollar o c the testimony

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Evidence Spring 2017 Outline Lollar o (c) the testimony is the product of reliable principles and methods; and o (d) the expert has reliably applied the principles and methods to the facts of the case. Subject Matter The Need for Expert Testimony (702(a)) (a.k.a. Relevancy) o Expert testimony should not come in unless it “will help the trier of fact to understand the evidence or to determine a fact in issue.” o An unqualified expert witness is not a helpful expert witness. Gilbert . Reliability of the Evidence o Two Ways of Judging Reliability Frye (Followed in about 22 states) The expert testimony must be grounded in scientific principles sufficiently established to have gained general acceptance in the particular field in which it belongs. This only applies to scientific evidence, not other technical or skilled expert testimony. This is followed in about 22 states. Daubert , etc. (Followed elsewhere and in the FREs) The court acts as a gatekeeper, judging the reliability of the testimony and evidence, that it is not just personal opinion and unsupported speculation. Thus, it is a 104(a) question. The test of reliability is a factor test, none of which are dispositive: o Whether the method can be and has been tested. o Whether it has been subjected to peer review and publication. o The known rate of error. o The existence and maintenance of standards determining reliability in the field. o Whether the method has received general scientific acceptance in the field in which it belongs ( Frye ). o Whether the expert has developed the opinion expressly for the purpose of litigation. Page 33 of 65 Nathan Hardymon
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Evidence Spring 2017 Outline Lollar o Whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion. o Whether obvious alternative explanations have been accounted for. o Whether the level of care is the same as the expert would use for his regular professional work outside the litigation context. o Whether the expert’s claimed field of expertise is known to reach a reliable result for the type of opinion the expert will give. Kumho Tire made clear that Daubert and 702 does not apply only to scientific experts. Malpractice o Some states require an expert witness in medical malpractice cases. o Kentucky does so in cases where these are at issue.: the standard of skill expected of a reasonably competent medical practitioner; or proximate causation between the negligence and the injury. 403 applies. Qualification of the Expert Witness (702) The expert must be one by knowledge, skill, experience, training, or education. This is a question for the judge under 104(a). The expert may not go beyond their expertise. Permissible Bases of Expert Testimony 703. Bases of an Expert o An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming
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