The expert must always go the extra mile. This includes:

• Studying all reports.
• Surveying the general body of relevant data.
• Viewing all relevant objects and items carefully.
• Conducting careful evidence testing.
• Maintaining lab notes and investigative tracks, and making sure that time records reflect such activity.
• Conducting tests that include and exclude the preliminary hypothesis.
• Following protocols and standard operating procedures.
• Using the most current professional thinking, writing, research and practice to develop appropriate investigative checklists.

The expert should be aware of the well-recognized Daubert rule, which comes from the landmark U.S. Supreme Court case dealing with evidence from new scientific theories.

The Daubert rule requires an independent judicial assessment of reliability. Among other purposes, the Daubert test is intended to end the current "battle of the experts" by establishing a reliability or admissibility standard.

Trial courts make a preliminary admissibility determination. This involves a preliminary assessment of whether the evidence is relevant, competent and material. The court decides if the evidence can be properly applied to the facts in this case. This is generally known as the "gate-keeping" function of the court.

Using the Daubert standard, a number of reliability factors can enter into this and subsequent hearings. The expert should determine the answers to the following questions:   

• Has the scientific theory or technique been empirically tested? The criteria on the scientific status of a theory include its falsifiability, refutability, and testability. [Source: Karl R. Popper, Conjectures and Refutations: The Growth of Scientific Knowledge (2002)]
• Has the scientific theory or technique been subjected to peer review and publication?
• What is the known or potential error rate?
• What are the expert's qualifications and stature in the scientific community?
• Does the technique rely on the special skills and equipment of one expert, or can it be replicated by other experts elsewhere?
• Can the technique and its results be explained with sufficient clarity and simplicity so that the court and the jury can understand its plain meaning?

[Source:  Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993)]

For example, in Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), the Supreme Court disposed of the idea that Daubert's gate-keeping principles extend only to scientific testimony. The Court invoked Federal Rule of Evidence 702, which says that expert testimony must embody scientific, technical or other specialized knowledge. It held that trial courts ruling on admissibility must evaluate the reliability of all expert testimony, whether it is scientific or not. Emphasizing Daubert's flexible approach, the Court noted that the factors bearing on a reliability determination may vary, depending on the field of expertise. In every field, it is necessary to evaluate the trustworthiness of the expert's methodology. Kumho Tire offers the benchmark that an expert's courtroom analyses should be conducted under the same standards for intellectual rigor that generally prevail in the expert's field.

Back Forward