ACFEI

What is a Forensic Expert?

Whether or not a person can be deemed a forensic expert is dependent upon the specific subject, Court, or case. A person deemed a forensic expert in a particular area may be deemed an expert in one Court or case but not another.

Duties and Qualifications

A forensic expert must be revealed during the discovery process. Often times they will have to undergo a deposition in which the expert’s credentials are explored, as well as their opinions and potential bias of the subject matter. The expert must also be “locked down” by recording their testimony before trial. Many civil cases do not advance to trial, and are settled after the discovery process.

Due to The Federal Rules of Civil Procedure, a timely report must be designed by the proposed expert during the discovery process. The report must include the information the expert reviewed, their opinions, and their reasons behind their opinions. Additionally, the expert may be required to provide proof of their qualifications, a list of previous trials in which they have testified, their fees and compensation, and any exhibits that may be used in the trial. The expert may be cross-examined during trial when opposing counsel addresses the questions in the deposition. Sometimes experts are served with a subpoena duces tecum, which requires them to bring specific papers and other items identified in the subpoena.

Experts should not be advocates. They should provide honest, unbiased answers. If they are asked by an attorney to back-up an opinion that they cannot support, the expert should refuse to take part in the trial.

The Court chooses which experts are and are not allowed to testify. The Court determines if the expert testimony can provide enough support and value to the case. A Court often chooses an expert based upon skills, training, knowledge, and experience. College education is often considered but not always required. Most importantly, the court chooses an expert who bases their opinion on reliable data, and who uses relevant principles and methodologies to prove the validity of their information.

The opinion of an expert may be based on firsthand knowledge, but this is not always necessary. Sometimes the expert will discern an opinion based upon records and publications, or even based on evidence or witnesses that are presented at trial. The expert may be asked by the court not only to state facts, opinions, and assumptions, but may also be asked to formulate expert opinions based on hypothetical information offered by the counsel. Experts should be careful when creating their opinions, as the Court may rule the opinion unacceptable if they are not convinced it is well rounded and accurate.

Once an expert is chosen, they must treat the case as confidential and decline any comments on the case during the litigation process.

An expert must be prepared to be cross-examined by opposing counsel, and must be honest in their answers during the initial consultation including disclosing matters of personal bias when asked.

Ethics and the Expert

The expert must conform to high levels of integrity and professionalism through the deposition and throughout the trial. The expert must carefully listen to and answer questions whether they are undergoing direct or cross-examination. The expert must ask for clarification for a question, and not attempt to guess an answer to a question that may be unclear or that they do not understand. They must also correct any errors that may or may not have been stated in the question.

Immunity for experts in court cases has eroded considerably in recent years. Now, an expert can be held liable for willful misconduct or negligence when forming their opinions. Some jurisdictions still allow immunity, but it is becoming more qualified and less absolute. Qualified immunity will not protect experts in situations of misconduct and negligence.

Rule 702 Testimony by Experts

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 qualified as an expert by knowledge, skill, experience, 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.

Rule 706 Court Appointed Experts

(a) Appointment- The court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection. An expert witness shall not be appointed by the court unless the witness consents to act. A witness so appointed shall be informed of the witness’ duties by the court in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate. A witness so appointed shall advise the parties of the witness’ findings, if any; the witness’ deposition may be taken by any party; and the witness may be called to testify by the court or any party. The witness shall be subject to cross-examination by each party, including the party calling the witness. (b) Compensation- Expert witnesses so appointed are entitled to reasonable compensation in whatever sum the court may allow. The compensation thus fixed is payable from funds which may be provided by law in criminal cases and civil actions and proceedings involving just compensation under the Fifth Amendment. In other civil actions and proceedings the compensation shall be paid by the parties in such proportion and at such time as the court directs, and thereafter charged in like manner as other costs. (c) Disclosure of appointment- In the exercise of its discretion, the court may authorize disclosure to the jury of the fact that the court appointed the expert witness. (d) Parties’ experts of own selection- Nothing in this rule limits the parties in calling expert witnesses of their own selection.

References

Certified Forensic Consultant, CFC® Program. (2005). In www.acfei.com. Retrieved April 16, 2012, from http://www.acfei.com/forensic_certifications/cfc/

Karagiozis, M. F., & Sgaglio, R. (2005). Forensic Investigation Handbook: An Introduction to the Collection, Preservation, Analysis, and Presentation of Evidence (pp. 49-57). Springfield, IL: Charles C. Thomas Publisher, LTD.

Rule 702. Testimony by Expert Witnesses. (n.d.). In http://www.law.cornell.edu. Retrieved April 16, 2012, from http://www.law.cornell.edu/rules/fre/rule_702

Rule 706. Court-Appointed Expert Witnesses. (n.d.). In http://www.law.cornell.edu. Retrieved April 16, 2012, from http://www.law.cornell.edu/rules/fre/rule_706

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