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Expert Witnesses Law 101: Legal Guide for the Forensic Expert This course is provided free of charge and is designed to give a comprehensive discussion of recommended practices for the forensic expert to follow when preparing for and testifying in court. Find this course live, online at: https://law101.training.nij.gov Updated: September 8, 2011 DNA I N I T I A T I V E www.DNA.gov About this Course This PDF file has been created from the free, self-paced online course “Law 101: Legal Guide for the Forensic Expert.” To take this course online, visit https://law101.training. nij.gov. If you already are registered for any course on DNA.gov, you may logon directly at http://law101.dna.gov. Questions? If you have any questions about this file or any of the courses or content on DNA.gov, visit us online at http://www.dna.gov/more/contactus/. Links in this File Most courses from DNA.Gov contain animations, videos, downloadable documents and/ or links to other userful Web sites. If you are using a printed, paper version of this course, you will not have access to those features. If you are viewing the course as a PDF file online, you may be able to use these features if you are connected to the Internet. Animations, Audio and Video. Throughout this course, there may be links to animation, audio or video files. To listen to or view these files, you need to be connected to the Internet and have the requisite plug-in applications installed on your computer. Links to other Web Sites. To listen to or view any animation, audio or video files, you need to be connected to the Internet and have the requisite plug-in applications installed on your computer. Legal Policies and Disclaimers See Legal Policies and Disclaimers (http://www.justice.gov/legalpolicies.htm) for information on Links to Other Web Sites, Copyright Status and Citation and Disclaimer of Liability and Endorsement. Law 101: Legal Guide for the Forensic Expert Law 101: Legal Guide for the Forensic Expert This course provides 13 modules and this introduction which is designed to give a comprehensive discussion of recommended practices for the forensic expert to follow when preparing for and testifying in court. Because laws may vary from jurisdiction to jurisdiction, experts are advised to check with local attorney(s) and become familiar with the laws applicable in the court where they will testify. The thirteen modules include: 1. Sources of Scientific Evidence 2. Report Writing and Supporting Documentation 3. Importance of Case Preparation 4. Subpoenas vs. Promises to Appear 5. Affidavits 6. Being a Court-Appointed Expert 7. Discovery 8. General Testifying Tips 9. Depositions 10. Pretrial 11. Trial 12. Post-Trial, Pre-Sentencing 13. Ethics for Experts Disclaimer The opinions and points of view expressed in this training program represent a consensus of the authors and do not necessarily reflect the official position of the U.S. Department of Justice. This project was developed by the National Forensic Science Technology Center under Award No. 2004-DN-BX-0079 awarded by the National Institute of Justice, Office of Justice Programs. Introduction to Law 101 1/203 Law 101: Legal Guide for the Forensic Expert Learning Objectives After completing the introductory module, the user should: • Know the role of an expert witness. • Know the difference between lay and expert opinions. • Be able to define technical terms and complex processes in everyday language. • Realize that standard operating procedures (SOPs) must be correctly applied in laboratories. • Comprehend that the expert must remain impartial in testing, report writing and testimony, regardless of the proffering party's identity. Terminology Most terms used in this document are common nomenclature, or legal terms of art, but some words may have multiple interpretations. For that reason, a glossary of definitions for those words, as they are used in this text, appears in the Appendix. Although experts must have specialized knowledge and experience in specific disciplines, they must explain these areas of expertise to many people less knowledgeable or experienced in these disciplines. Experts should be able to explain technical terms and complex processes clearly in plain, everyday language. Analytical reports, pretrial preparation with attorneys, testimony, trial exhibits and demonstrations should all be written in plain English and simple language. In addition, an expert's writing must be impartial — in fact, the expert should remain impartial in testing, report writing and testimony regardless of whether the expert works for one of the parties or the court. This document also outlines the role of the forensic expert, from completing evidence analyses, to testifying in court in support of those analyses. Content is divided into modules designed to be read from start to finish for a broad overview, as individual chapters on specific aspects of analyses and testimony, or as a primer or refresher on a particular topic. Rules of Evidence and Lay Witnesses Federal Rules of Evidence refer to the body of evidentiary rules, used in federal court and adopted in many state courts, which generally constitute a summary of the law of evidence in many jurisdictions. FRE 701 applies to opinion evidence given by a lay (non-expert) witness. Lay witnesses cannot give opinions based on scientific, technical or specialized knowledge. In order for a non-expert witness to give an opinion in court, it must relate to something about which the witness has personal knowledge (e.g., eyewitness evidence) or be based on something upon which any reasonable person could offer an opinion (e.g., the height of a suspect). Expert Witnesses By contrast, FRE 702 states that "if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness — as qualified as an expert by knowledge, skill, experience, training, or education — may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case." As indicated, however, the rule concerning expert witnesses may vary from state to state. 2/203 Law 101: Legal Guide for the Forensic Expert Federal court jury instructions advise juries concerning expert witnesses as follows: "The rules of evidence ordinarily do not permit witnesses to testify as or conclusions. An exception to this rule exists as to opinions to those whom we call 'expert witnesses.' Witnesses who, by education and experience, have become expert in some art, science, profession, or calling, may state an opinion as to relevant and material matter, in which they profess to be expert, and may also state their reasons for the opinion. "You should consider each expert opinion received in evidence in this case, and give it such weight as you may think it deserves. If you should decide that the opinion of an expert witness is not based upon sufficient education and experience, or if you should conclude that the reasons given in support of the opinion are not sound, or that the opinion is outweighed by other evidence, you may disregard the opinion entirely." (Source: Devitt and Blackmar, Federal Jury Practice and Instructions, 3rd ed., Vol.1 [West Publishing Company, 1977], § 15.22, p. 482.) Many state courts offer similar typical expert witness jury instructions that could read as follows: You have heard evidence in this case from witnesses who testified as experts. The law allows an expert to express opinions on subjects involving their special knowledge, training, skill, experience or research. You shall determine what weight, if any, should be given such testimony, as with any other witness. A witness who is qualified by the court as an expert in a particular field may assist the judge or jury in understanding a method or technology at issue, interpreting results of scientific tests, or offering opinions based upon the evidence in the case. Testifying experts are not required to conduct the tests on which they base their opinions. However, they must possess the required "scientific, technical or specialized knowledge" to be qualified by the court as an expert in their particular field in order to review relevant materials from the case and/or give relevant opinions. Experts who work for federal, state, local and private laboratories may have written standard operating procedures (SOPs), which outline all steps of each scientific analysis the laboratory performs. These should be followed whenever possible. In instances where a deviation from the SOP is necessary, a thorough explanation should be documented and immediately brought to the attorney's attention. Generally, a forensic expert's role begins by: • Receiving information and evidence in a case for testing. • Examining or evaluating a case. • Receiving an opposing expert's analytical report. • Anticipating and preparing for cross-examination. An Expert Witness Overview: How the Process Works A general understanding of the process may help alleviate some fears about the expert's role in the adversarial legal system. 3/203 Law 101: Legal Guide for the Forensic Expert • Experts are allowed to render opinions about matters in legal proceedings because of their knowledge, training and experience. • Experts may be called on to assist in all phases of the investigation, preparation, discovery and trial. • The expert transmits specialized information and knowledge to the fact finder. The expert will likely be questioned. Anticipation of cross-examination can facilitate a confident response. • Experts should prepare for cross-examination and frame a strategy for answering vulnerable areas. • Forensic experts must prepare thoroughly to testify.
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