Voire Dire of Experts

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Time
1 hour 49 minutes
Difficulty
Intermediate
CEU/CPE
2
Video Transcription
00:00
we've reached the main module of this entire course. Everything is built up to this module on expert testimony.
00:11
As you can see, we're almost at the end of the course. You're doing really great. You're almost there
00:18
in this module. We're going to discuss what happens during voir dire of experts.
00:23
The difference between a consulting and testifying expert.
00:28
What happens during direct examination, how to prepare for cross examination and finally
00:34
finishing up testimony with the redirect examination. We'll talk about each of these parts
00:39
in a little bit more depth as we go through this module,
00:44
less than 9.1 is on voir dire of experts.
00:48
Voir dire is the
00:51
French term for to speak the truth.
00:54
It's really interesting that it's
00:57
voir dire, and the whole qualification of experts
01:02
means to speak the truth. If you remember very early on our very first module, we talked about the role of an expert being to seek the truth,
01:12
and it's kind of brings everything full circle that
01:17
the process of qualifying an expert for testimony
01:23
means to speak the truth.
01:26
So an expert starts off by seeking the truth and then must speak the truth
01:33
and there to standards that are out there that govern
01:36
kind of expert testimony and what qualifies his expert testimony and those air known as the doll Bert
01:42
and the Fry Standards, and we'll talk about those in depth.
01:47
But during voir dire, what really happens is it's a review of the curriculum vitae, the C V
01:53
and the credentials of the expert to determine whether this person has followed
02:00
a defined scientific process.
02:05
The Daubert standard comes from a 1993 case known as Delbert versus Merrell Dow Pharmaceuticals Incorporated,
02:13
and it establishes a number of things. First, the judges the gatekeeper.
02:17
It
02:19
sets the rules and says that assuring that scientific expert testimony truly proceeds from scientific knowledge rests on the trial judge.
02:29
The judge is the one who decides whether or not
02:31
an expert is testifying to scientific
02:35
expert t's, or whether or not
02:38
the
02:39
data and information that the expert is going to provide is admissible
02:45
in court. So there comes the admissibility argument that we've talked about before.
02:51
It also establishes that the trial judge has to ensure that the expert testimony is quote relevant to the task at hand
02:59
and that it rests on a reliable foundation.
03:01
So here's where relevance or admissibility comes into play and reliability comes into play.
03:10
Albert also establishes that a conclusion will qualify as scientific knowledge if
03:16
the person making that
03:20
conclusion condemn unstated that it is a product of sound scientific methodology derived from the scientific method.
03:29
Is it defensible?
03:30
Is it repeatable and are the results reliable?
03:37
Dow Daubert also
03:39
establishes
03:42
a set of factors that a judge can use their known as illustrative factors there, not a test. It's not a hard and fast
03:51
you must meet all of these in order to
03:53
be considered scientific
03:57
and therefore admissible is expert testimony.
04:00
Daubert lays out a couple of ideas of things that the judge needs to consider.
04:06
The judge needs to consider whether the theory or technique employed by the expert is generally accepted in the scientific community, whether it's been subjected to peer review,
04:17
whether it can be or has been tested,
04:21
whether there's a known error rate
04:26
and whether the research conducted was conducted independent
04:30
of a particular litigation or whether the
04:33
research was done dependent on an intention to provide the proposed testimony.
04:39
So the question is,
04:41
did you do this expecting to testify. Or did you do this
04:46
because have you done this? And has this
04:50
methodology been created outside of a particular litigation?
04:57
Really? Has it been? Hasn't been tested hasn't been reviewed? Is it generally accepted in the scientific community?
05:06
Fry, on the other hand, is a 1923 case that states that scientific evidence presented to the court must be interpreted by the court as generally accepted by a meaningful second segment
05:19
of the associated scientific community. It distills Daubert down to really one thing.
05:27
It makes
05:28
the
05:29
Daubert standard
05:31
really once very simple, simplified standard,
05:35
for I came first. Yes,
05:39
Daubert came later.
05:41
But
05:42
Fry iss still applicable. And it's important to know the difference between Daubert and Frye because if you're in California, Illinois, Maryland, Minnesota, New Jersey, New York, Pennsylvania or Washington
05:54
and you're testifying in state court,
05:57
you're actually testifying under the Frye standard, not the Daubert standard.
06:00
So it's very important to know that,
06:03
however,
06:05
when in doubt, Daubert supersedes
06:11
fried daubert is the better standard than fry. It's the Mork current standard, and it's the more generally accepted standard
06:18
again.
06:19
If you're in one of these states listed on the screen
06:24
you do need to be aware of Fry
06:26
because you are living in a fries standard state.
06:30
So here's a quiz question.
06:31
Which case supersedes the other.
06:34
Fry supersedes Daubert,
06:36
Daubert and Fryer equal or Daubert supersedes fry.
06:43
The answer is, Daubert supersedes fried Albert is the higher standard if there's a conflict between the two standards
06:53
in this video, we discussed what happens during Vaud ire of experts and the Daubert and Frye standards.
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