1. Unit 3 Seminar! K. Austin Zimmer Any question from Unit 2! Please make sure you have completed your Unit 1 & 2 Papers!

2. Tonight’s Topic: Lay and Expert Witnesses Under the rules of evidence, various types of witnesses can testify in a court of law. Lay witnesses are often limited in their testimony to personal knowledge and generally relate facts more often than opinions. Expert witnesses, on the other hand, most often offer opinion testimony. Attorneys are allowed to ask expert witnesses to disclose personal information that could diminish their effectiveness as a witness. Many times during a cross examination or deposition, opposing counsel will attempt to destroy an expert witness testimony or credibility. Once an individual is recognized by the court as an expert witness, should attorneys be permitted to continue their attempt to discredit the witness? Why or why not?

3. Two Categories of Witnesses Witnesses have been classified into two categories: (1) the lay or ordinary witness (2) the expert witness

4. Lay Witness The lay witness is a person who has some personal knowledge about the facts of the case and who has been called upon to relate this information in court. The law enforcement officer will usually fall within the category of the lay witness. The lay witness is permitted to testify about facts only, and, with few exceptions, may not state personal opinions.

5. Questioning the Witness A leading question is one that suggests to the witness the answer sought by the questioner. The law prefers open-ended, or non-leading, questions on direct examination because leading questions are by definition suggestive. –Suggestive questions could induce a witness to inadvertently adopt the questioner's suggestion. This is especially likely where the attorney posing the leading question prepared the witness to testify and the witness has some relationship with the party represented by that attorney.

6. Statutory Guidelines FRE provides for exceptions to the rule prohibiting leading questions on direct examination: 1) with respect to undisputed preliminary or inconsequential matters 2) when a witness is hostile, unwilling, frightened, or biased 3) with respect to a child or adult witness with communication problems 4) with a witness whose recollection is exhausted 5) when laying a necessary foundation under certain circumstances

7. Cross-Examination FRE 611(c) says: "Ordinarily leading questions should be permitted on cross- examination." –No question may be asked on cross- examination unless it the subject has been brought up during direct examination.

8. Primary Benefit of Cross-X The most important purpose of cross- examination is to persuade the jury to disbelieve the testimony of a witness, to impeach the witness.

9. Impeachment Impeachment is a process or a result that diminishes the believability of a witness's testimony or destroys it. There are five basic methods of impeachment: (1) by contradiction (2) by proof of bad character for truthfulness (3) by proof of prior inconsistent statement (4) by proof of bias or motive to falsify (5) by proof of lack of or diminished witness capacity

10. Expert Witnesses To assist the jury in its search for the truth and in the best interests of justice, the services of the expert witness often come into play.

11. Expert Witnesses and the FRE Under the FRE, an expert may testify if the scientific, technical, or other specialized knowledge he or she provides will assist the jury in understanding the evidence or in determining a material fact.

12. Definition of Expert Witness An expert witness is a person skilled in some art, trade, science, or profession. An expert must have either knowledge, skill, experience, training, or education that is beyond and above that of the average person. In this respect, therefore, an expert is in a position to assist the jurors because they do not have this background.

13. Foundations and Expert Witnesses Before an expert may testify, the judge must first determine whether the witness is qualified as an expert in the particular field by knowledge, skill, experience, training, or education and that the testimony will help the jury arrive at the truth.

14. The Foundation for Expert Witnesses In order to utilize the testimony of an expert witness, three requirements must be established to the satisfaction of the trial judge. First, the subject matter of the expert's proposed testimony must be relevant in the sense that it will assist the jury "to understand the evidence or to determine a fact in issue." Second, the expert's field must be one requiring scientific, technical, or specialized knowledge. Third, the witness must be shown to have the background necessary to qualify as an expert in the field.

15. The Daubert Test The Four Tests of Daubert-Kumbo (1) testing of the theory or technique (2) peer review and publication of the theory or technique (3) the particular scientific technique's known or potential rate of error (4) the theory or technique's "general acceptance"

16. Qualifying the Expert Therefore, if the criminalist has had formal education in ballistics and fingerprint analysis, this information would be elicited first by the prosecutor on direct examination. However, even if the witness has had no formal education, the prosecutor can qualify the criminalist as an expert by eliciting information about the witness's special training and experience.

17. Qualifying (con’t) The qualification of an expert witness places a burden upon the side producing the expert witness to prove qualification. In the typical criminal case, the qualification process involves preliminary questions asked of the witness about education, experience, training and work in order to establish the witness's basic qualifications. In addition, the attorney will want to qualify the witness as persuasively as possible by going beyond the essential qualifications in order to give the witness as much stature as possible in the

18. Judge Makes the Decision The final determination whether a person qualifies as an expert witness or not is made by the trial judge, and unless the decision is beyond all reason, it will not be overruled on appeal. Once the witness is accepted by the judge as an expert witness, the weight given to the testimony is determined by the jury.

19. Any Questions?? Next Week is Unit 4 and the Hearsay Rule!!