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