02.1expert Testimony

Expert Testimony
Tom Anglim, Chief Assistant

District Attorney-District 2
An Expert?
 Rule: 702(a): Assist Trier of fact?
 Testify in the form of an opinion
 Ultimate Issue?
 Yes
What can an expert testify about?
 Rule 703: Opinion based on facts or data in

case
 Relied upon in field in making opinions
 Rule 704: Opinion on Ultimate Issue
–1
Case Law
 Admissibility
 Howerton v. Arai Helmet, Ltd., 358 N.C. at 458
 Expert Qualifications
 knowledge, skill, experience, training, or
education
 Trial courts get ‘wide latitude’ of discretion
when making a determination about the
admissibility of expert testimony
Howerton three step process:

1. Is the expert's proffered method of proof
sufficiently reliable as an area for expert
testimony?
a. The trial court should look to precedent for guidance
in determining whether the theoretical or technical
methodology underlying an expert's opinion is
reliable.
b. If none, the trial court must look to other "'indices of
reliability' to determine whether the expert's proffered
scientific or technical method of proof is sufficiently
reliable.”
(1) Such indices may include the expert's use of established
techniques, the expert's professional background in the field,
the use of visual aids before the jury so that the jury is not
asked 'to sacrifice its independence by accepting the
scientific hypotheses on faith,' and independent research
conducted by the expert.
(2) Cases from other states.
Howerton three step process:

2. Is the witness testifying at trial qualified as
an expert in that area of testimony?
a. The standard for this determination is:
(1) Whether a witness has the requisite skill to qualify as
an expert in a given area is chiefly a question of fact,
the determination of which is ordinarily within the
exclusive province of the trial court.
3. Is the expert's testimony relevant?
a. Relevancy under Rule 401; and
b. Further, in judging relevancy, it should be noted
that expert testimony is properly admissible
when such testimony can assist the jury to draw
certain inferences from facts because the expert
is better qualified than the jury to draw such
inferences.
–2
Qualifying Process
Areas to Cover: John Tierney’s “Six E’s”
1. Education
2. Experience
3. Esteem
4. Examination
5. Expert Opinion
6. Explanation
Qualifying Process
 Education
 Experience
 Academic
 Informal, real life experiences
 Details are Important
 Esteem
 Things beyond Education and Experience
 Examples
 Associations, real jobs, publications
 Specifics
Qualifying Process
 Examination
 What, Where, When
 Protocols
 Scientific Theory
 Expert Opinion
 What is it?
 Impact?
 Strengths & Weaknesses
 Ultimate Issue
 Corroborative
–3
Qualifying Process
 Explanation
 Relative
 Simple Words
 Demonstrative
 Distinguish opposing opinions
 Basis of Opinion
 Facts & Data
 Experience
 Treatises
Magic Words
 Your Honor, the state tenders [whoever]

as an expert in [whatever]
DOs and DON’Ts

Generally
 Credible, Believable or telling the Truth
 Do
 Profile general characteristics abused children
 Victim’s symptoms consistent with profile
 DON’T
 Opinion the Sexual Abuse existed Unless . . .
 Allow Expert to opine diagnosis for
 PTSD
 CAAS
 Unless . . .
–4
DOs and DON’Ts
Sexual Abuse
 Warning: Proceed with caution
 Do
 Profile general characteristics abused children
 Victim’s symptoms consistent with profile
 DON’T
 Opinion the Sexual Abuse existed Unless . . .
 Allow Expert to opine diagnosis for
 PTSD
 CSAAS
 Unless . . .
 BUT . . .
OPINIONS
 Do you have an opinion?
 To a degree of medical certainty . . .
 Findings
 Consistent with profiles and characteristics of
sexually abused children?
 Victim’s behavior Consistent with profiles
and characteristics of sexually abused
children?
Opinions
 Do you have an opinion?
 Source of Injury?
 Force required for Injury?
 Consistent with BCS
–5
Opinions
 Do you have an opinion on Ultimate Issue
 Physical Evidence:
 Is there is sufficient physical evidence
 What is sufficient physical evidence?
 Sexual Abuse is the only potential cause
for the physical findings, or
 Findings are specifically diagnostic of
sexual abuse
Opinions
 Do you have an opinion on Ultimate Issue
 Physical + Behavior = Sexual Abuse?
 Physical findings exist, but not specifically
diagnostic,
 Behavioral changes consistent with sexual
abuse
 Opinion allowed
 See State v. Shepherd, 156 N.C. App. 69 (2003)
Opinions
WHEN IN DOUBT . . .
AVOID OPINIONS ON
ULTIMATE ISSUE
–6
Crawford
 Not Applicable to Civil Cases
 In re D.R. 172 N.C. App. 300 (2005)
 U.S. v. DeLeon (4th Cir. May 15, 2012)
notwithstanding the lack of an ongoing
emergency and the fact a social worker may
have a reporting requirement, statements made
to a social worker still can be non-testimonial
 See Crawford paper and blog at
http://sogpubs.unc.edu/electronicversions/pdfs/
aojb1002.pdf
Attacking Their Expert

 Research
 Text: Ziskin, J. Coping with Psychiatric and
Psychological Testimony
 Text: Imwinkelried, E. The Methods of
Attacking Scientific Evidence
 Report
 What is says, really!
 What it does not say!
Attacking Their Expert

 The Expert
 Clinical v. Real Life Experience
 Theme
 Relative to case
 Multiple Diagnoses
 Will the real diagnosis manifest itself!
–7
General Principles
 Three times heard Rule
 Be Wary of Words and Phrases that may be
misunderstood or misused by an expert.
 “Causation and Correlation”
 “Validity and Reliability”
 “Considered and Relied Upon”
 “Probability and Possibility”
 “Identical and Indistinguishable”
 Some “DON’TS”
 Don’t utilize “terms of art” before the judge
without fully explaining their meanings in simple
terms
General Principles
 “Chicken Nugget Evidence”
 Don’t overwhelm the judge.
 Present your case in bite size portions
 Don’t let the defense define the issues
 You define them!
Where do you Look?

 NC IOG
 DA’s Conference/Office
 Internet:
 American Academy of Forensic Sciences - www.aafs.org.
 Accreditation Commission for Traffic Accident Reconstruction –
www.actar.org.
 Internet Legal Research Group – www.ilrg.com.
 Medscape – www.medscape.com.
 NC IOG - http://nccriminallaw.sog.unc.edu/?p=3666
 Michigan State University Library
www.lib.msu.edu/harris23/crimjust/assn.htm
 State & Local Contacts
 Colleges/Universities
 Hospitals
–8
QUESTIONS?
–9

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Expert Testimony

Tom Anglim, Chief Assistant

What can an expert testify about?

 Rule 703: Opinion based on facts or data in

Howerton three step process:

Howerton three step process:

 Your Honor, the state tenders [whoever]

DOs and DON’Ts

Attacking Their Expert

Attacking Their Expert

Where do you Look?

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