Expert Witnessing: The Changing Landscape

• NCJ Number: 197708
• Journal: White Paper Volume: 16 Issue: 4 Dated: July/August 2002 Pages: 34-37,5,1,53
• Author(s): Ralph Q. Summerford
• Editor(s): Dick Carozza
• Date Published: July 2002
• Length: 6 pages
• Publication Format: Article
• Publication Type: Report (Study/Research)
• Language: English
• Country: United States of America
• Note: This is a special issue on white-collar crime; see NCJ-197707 for an additional article.

Annotation

This article reviews changes and developments in the Federal Rules of Evidence and their impact on fraud examiners as expert witnesses, specifically the applicability of the (analysis) factors and the trial judges’ gate-keeping role.

Abstract

Changes in Rule 702 of the Federal Rules of Evidence have raised the standards of expert witnesses or testifying experts. These changes have significantly changed the environment in Federal court cases of all testifying experts, both the reliable, relevant testimony and the speculative testimony. This article presents these developments in the Federal Rules of Evidence to aid fraud examiners in understanding the changes and the impact on them. Rule 702 of the Federal Rules of Evidence is the basic rule on expert testimony. This rule, along with Rules 701 and 703 were changed effective December 2000 based on a case in 1993, Daubert v. Merrell Dow Pharmaceuticals Inc., creating conflict in the lower courts on whether the (analysis) factors used in Daubert were applicable to all expert testimony. These changes occurred to make certain that there was no question about the applicability of the factors and the trial judges “gate-keeping” role. The standards set forth in the amendment require consideration of all specific Daubert (analysis) factors where appropriate. The purpose in the changes is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in that particular field. The trial judge has considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable. This article deals with cases in the U.S. Federal Court system; if the case is filed in a State court the rules and procedures may be different. To testify as an expert witness, that person must pass through the gates of the keeper, the trial judge. Reliable and relevant testimony is the key.