Commentary and information about public safety and security, intelligence and counterintelligence, open government and secrecy, and other issues in northern Idaho and eastern Washington.

Location: Coeur d'Alene, Idaho, United States

Raised in Palouse, WA. Graduated from Washington State University. US Army (Counterintelligence). US Secret Service (Technical Security Division) in Fantasyland-on-the-Potomac and Los Angeles. Now living in north Idaho.

Tuesday, February 22, 2005

Expert Witness: What Is It?

In the aftermath of the Grouse Meadows shootings on December 28, both local newspapers sought comments from "experts." The Spokesman Review contacted Dr. Geoffrey Alpert, the Chairman of the Department of Criminology and Criminal Justice at the University of South Carolina. The Coeur d'Alene Press contacted Mr. Tad Leach, Instructor/Coordinator for the Law Enforcement Program at North Idaho College.

In his curriculum vitae Dr. Alpert does not disclose that he has been an expert witness in court. In his resume, Mr. Leach proclaims "Expert Witness in law enforcement issues, including use of force (Federal and Idaho State Court recognized)."

So what is an "expert witness?" What does it mean to be recognized as an "expert witness"?

Most witnesses in court are "lay witnesses". A lay witness's testimony is nearly always limited to facts within his own knowledge, observation, and recollection. He is usually (but not always) prohibited from offering his opinion or drawing conclusions.

But the courts have recognized that sometimes trial testimony can be so technical or unusual that juries (the trier of fact) may benefit from some help in understanding the evidence or determining a fact in issue. If the trial court recognizes that a proposed expert witness has specialized knowledge relevant to the issue, the court may in its discretion allow the expert witness to render an opinion or draw a conclusion.

The rules defining the use of expert witnesses in federal courts are found in The Federal Rules of Evidence (FRE), specifically Rules 701-706. The rules pertaining to the use of expert witnesses in Idaho courts are found in The Idaho Rules of Evidence (IRE), specifically Rules 701-706. Both FRE 702 and IRE 702 explain when expert testimony is permitted.

Notice that neither the FRE nor the IRE precisely defines what an expert is. That determination is within the court's discretion. Both FRE 702 and IRE 702 use the terms "a witness qualified as an expert by knowledge, skill, experience, training,or education" to guide the court. But ultimately, it is up to the court to decide if an offered witness qualifies as an "expert."

From the generalized guidance and discretion given to the courts, it should be clear that the court's recognition of someone as an "expert" applies only in that court in that particular case. To put it another way, someone who testifies as an expert witness may be an "expert" only in the eyes of that court but no one else. The person allowed to testify as an expert in one trial may be rejected in another one.

And that leads to the second question, "What does it mean to be recognized as an expert witness?" It means that one particular court in one particular case has examined the qualifications of a person offered as an expert witness and found that witness to be qualified to offer an opinion or conclusion in his area of expertise on the evidence he has examined in that case. That someone may have been recognized as an expert witness in one or a thousand trials is comparatively meaningless to the next trial court. "Expert witness" is not a credential that extends beyond the court which allowed the person to testify as an expert.

For an interesting Idaho case involving expert testimony, see State of Idaho v. Craig T. Perry.

Persons who market themselves as expert witnesses need to be very careful when they're making out-of-court public statements (e.g., to the press, in journals, books, etc.). This is particularly true if the statements reveal information or methods of investigation that would generally impugn the witness's credibility in subsequent trials.


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