Posts categorized as "Evidence"

Are expert witnesses paid?

Yes, expert witnesses are usually paid.  Experts are typically hired by one of the parties to a case and are compensated for their time developing their expert opinions.  If fact, if you look at the Federal Rules of Civil Procedure, you will see that experts are required to disclose their compensation.  

In some high profile cases experts can be paid quite a bit for their preparation time.  


What is an expert witness?

There are two types of witnesses - - fact witnesses (sometimes called percipient witnesses or eyewitnesses) and expert witnesses.  

Most witnesses are so-called fact witnesses and can testify as to what they personally saw, heard, or experienced.   For example, a witness to a car accident can testify about what he personally saw.  But could he testify as to whether the car that was involved in the accident was properly designed?  Probably not.  Even if he has an opinion, a judge won't allow him to testify because his lay opinion will not help the jury.  

To testify about car design and many other topics that require specialized knowledge, one must be an expert.  Experts can provide opinion testimony about matters that ordinary people  cannot.  Think about television crime dramas where medical professionals testify about the time and cause of death even though they did not see the victim die.  

Before a witness can testify as an expert he has to satisfy several criteria.  If you look at Federal Rule of Evidence 702 you can see the standards in the federal courts for a witness to testify as an expert.  First, the judge will have to be satisfied that the witness is actually an expert based upon education, training, knowledge, or skill.  For example, a doctor or a medical researcher might have the appropriate education and training to testify about a new drug.

Second, the judge must be satisfied that the expert's testimony is based upon sufficient facts or data and that the expert applied the proper principles to the facts or data to reach his conclusion.  It's not enough for a doctor to say that he believes a certain type of medicine was inappropriate to treat a patient.  The  doctor must satisfy the judge that his analysis was sufficiently rigorous.

Finally, if the judge agrees that the witness is an expert, and that the expert applied the proper principles and methods to the facts and data to reach his conclusion, the witness will be allowed to testify if the judge believes that the expert's testimony will be helpful to  the jury.  

I uploaded a video to my Youtube page on expert witnesses:


What if someone refuses to share information during discovery?

You have probably learned that in the United States courts favor broad discovery.  For example, in federal court parties are required to disclose certain information at the beginning of the case without being asked.  Parties then must meet to create a plan and schedule for discovery.   During discovery parties are able to seek a wide range of information from each other.  

Of course there are controversies.  For example, one party might believe that a document is immune from discovery because the document came from the party's lawyer and contains legal advice.  How can this controversy be settled?

Courts usually encourage parties to settle the argument by discussing the problem and coming up with their own solutions.  If that doesn't work, the parties might meet with a judge or a magistrate  - - a special judge dealing with specific matters, such as discovery - - to resolve the issue.  

Sometimes the party seeking the information will have to make a motion to compel.  A motion is where a judge is asked to do something.  A motion to compel is where a judge is asked to order someone to do something.  For example, in a motion to compel production (disclosure) of a document, the party seeking the document will ask the judge to order the party holding the document to disclose it.  If the motion is granted, the party in possession of the document must provide it to the moving party.  

I uploaded a short video on motions to compel during discovery:


Non-hearsay: when is an out of court statement admissible into evidence?

I talked a bit about hearsay in an earlier post.  Hearsay is an out of court statement that a lawyer wants to offer into evidence to prove the truth of the matter asserted.  Let's say Wally heard David say that Mary robbed a bank.  If a prosecutor asks Wally to testify as to what David said, that's hearsay.  Why?  Because the prosecutor wants to use David's statement to prove that Mary robbed the bank.  But Wally doesn't have any personal knowledge about what David saw or didn't see.  He's just repeating what David told him.  Wally's testimony would be hearsay and is probably not admissible in court.

But sometimes a lawyer wants to use an out of court statement for purposes other than to prove the truth of the matter asserted.  In my previous post I gave one example, here's another.  Let's say Wally tells a police officer that David is carrying a stolen gun and is about to rob a bank.  The police officer stops David outside the bank and searches him, finding a stolen necklace but no gun.  David is arrested and placed on trial.  If a prosecutor asks the police officer why he searched David the police officer will testify that he was told that David was carrying a gun and was planning to rob a bank.  Is that hearsay?  Maybe not.  The prosecutor is not trying to prove that David was carrying a stolen gun and planning to rob a bank, he's just trying to explain why the police officer searched David.  The jury is not interested in whether Wally's statement was true - - we're just interested in what Wally said.

Below is a video on out of court statements that are not hearsay because they are not being admitted into evidence to prove the truth of the matter asserted.







What is hearsay - - what is the hearsay rule?

 A witness cannot always testify about things he saw, read, heard, or thinks.  Hearsay is a type of testimony that is generally inadmissible in court - - meaning it is a category of testimony that courts generally prohibit.

The standard definition of hearsay is an out of court statement offered for the truth of the matter asserted.  What does that mean?  Whenever a witness at a trial tries to testify about what someone else told him, and a lawyer wants the jury to believe that what the witness heard was true, we might have a hearsay problem.

Let's say Debbie is on trial for robbing a store.  David saw Debbie go to the store at 1:00, ten minutes before the robbery.  David told Wally that he saw Debbie go to the store at 1:00.   Can the prosecutor ask Wally to testify that David told him that he saw Debbie go to the store?  Maybe not - - this looks like hearsay.  Wally is testifying about David's out of court statement.  And the prosecutor wants the jury to believe that what David said was true.  

Please keep in mind that there are a number of important exceptions to the hearsay rule - -  we'll talk about them in other posts.

Also, just because a witness testifies about what another person said does not always make it hearsay.  Let's say a person was carrying an umbrella in New York City on a day that it did not rain.  He carried the umbrella because a weather report incorrectly stated that there was a thunderstorm in New York that day.  If the person explains that he was carrying the umbrella because of the weather report he is not claiming that the weather report was true.  The weather report is not being offered for the truth of the matter asserted.  Everyone knows that the weather report was false.  But we want to know what the weather report said because it explains why the person carried an umbrella on a day with no rain.

Below is a video on hearsay, more to come.