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Definition of Expert Witness
An expert witness, professional witness or judicial expert is a witness, who by virtue of education, training, skill, or experience, is believed to
have expertise and specialized knowledge in a particular subject beyond that of the average person, sufficient that others may officially and legally
rely upon the witness's specialized (scientific, technical or other) opinion about an evidence or fact issue within the scope of his expertise,
referred to as the expert opinion, as an assistance to the fact-finder. Expert witnesses may also deliver expert evidence about facts from the domain
of their expertise. At times, their testimony may be rebutted with a learned treatise, sometimes to the detriment of their reputations. In Scots Law,
Davie v Magistrates of Edinburgh (1953) provides authority that where a witness has particular knowledge or skills in an area being examined by the
court, and has been called to court in order to elaborate on that area for the benefit of the court, that witness may give evidence of his opinion on
Experts in the real world
Typically, experts are relied on for opinions on severity of injury, degree of insanity, cause of failure in a machine or other device, loss of
earnings, care costs, and the like. In an intellectual property case, an expert may be shown two music scores, book texts, or circuit boards and
asked to ascertain their degree of similarity.
The tribunal itself, or the judge, can in some systems call upon experts to technically evaluate a certain fact or action, in order to provide the
court with a complete knowledge on the fact/action it is judging. The expertise has the legal value of an acquisition of data. The results of these
experts are then compared to those by the experts of the parties.
The expert has a heavy responsibility, especially in penal trials, and perjury by an expert is a severely punished crime in most countries. The use
of expert witnesses is sometimes criticized in the United States because in civil trials, they are often used by both sides to advocate differing
positions, and it is left up to a jury of laymen to decide which expert witness to believe. Although experts are legally prohibited from expressing
their opinion of submitted evidence until after they are hired, sometimes a party can surmise beforehand, because of reputation or prior cases, that
the testimony will be favorable regardless of any basis in the submitted data; such experts are commonly disparaged as "hired guns." Junk science
gets its pejorative name from theories utilized by supposed experts in legal and political debate.
Duties of experts
In England and Wales, under the Civil Procedure Rules 1998 (CPR), an expert witness is required to be independent and address his or her expert
report to the Court. A witness may be jointly instructed by both sides if the parties agree to this, especially in cases where the liability is
Under the CPR, expert witnesses are usually instructed to produce a joint statement detailing points of agreement and disagreement to assist the court
or tribunal. The meeting is held quite independently of instructing lawyers, and often assists in resolution of a case, especially if the experts
review and modify their opinions. When this happens, substantial trial costs can be saved when the parties to a dispute agree to a settlement. In
most systems, the trial (or the procedure) can be suspended in order to allow the experts to study the case and produce their results. More
frequently, meetings of experts occur before trial.
Experts charge a professional fee which is paid by the party commissioning the report (both parties for joint instructions) although the report is
addressed to the Court. The fee must not be contingent on the outcome of the case. Expert witnesses may be subpoenaed, although this is normally a
formality to avoid court date clashes.
In some states like California, a doctrine may be submitted by an expert via the representing attorney in substitution of an expert report.
The earliest known use of an expert witness in English law came in 1782, when a court that was hearing litigation relating to the silting-up of Wells
harbor in Norfolk accepted evidence from a leading civil engineer, John Smeaton. This decision by the court to accept Smeaton's evidence is widely
cited as the root of modern rules on expert evidence. However, it was still such an unusual feature in court that in 1957 in the Old Bailey, Lord
Justice Patrick Devlin could describe the case of suspected serial killer Dr John Bodkin Adams thus: "It is a most curious situation, perhaps unique
in these courts, that the act of murder has to be proved by expert evidence."
On the other hand, expert evidence is often the most important component of many civil and criminal cases today. Fingerprint examination, blood
analysis and DNA fingerprinting are common kinds of expert evidence heard in serious criminal cases. In civil cases, the work of accident analysis,
forensic engineers, and forensic accountants is usually important, the latter to assess damages and costs in long and complex cases. Intellectual
property and medical negligence cases are typical examples
Electronic evidence has also entered the courtroom as critical forensic evidence. Audio and video evidence must be authenticated by both parties
in any litigation by a forensic expert who is also an expert witness who assists the court in understanding details about that electronic evidence.
Voice mail recordings and closed circuit television systems produce electronic evidence often used in litigation, more so today than in the past.
Video recordings of bank robberies and audio recordings of life threats are presented in court rooms by electronic expert witnesses.
In the U.S., a party can hire experts to help him/her evaluate the case. For example, a car maker may hire an experienced mechanic to decide if its
cars were built to specification. This kind of expert opinion will be protected from discovery. If the expert finds something that is against its
client, the opposite party will not know it. This privilege is similar to the work product protected by the attorney/client privilege. The
non-testifying expert can be present at trail or hearing to aid the attorney in asking questions of other expert witnesses.
If the witness needs to testify in court, the privilege is no longer protected. The expert witness's identity and nearly all documents used to
prepare the testimony will become discoverable. Usually an experienced lawyer will advise the expert not to take notes on documents because all of the
notes will be available to the other party.
An expert testifying in court must satisfy the requirements of Fed. R. Evid. 702. Generally, under Rule 702, an expert is a person with “scientific,
technical, or other specialized knowledge" who can "assist the trier of fact,” which is typically a jury. A qualified expert may testify “in the
form of an opinion or otherwise” so long as: “(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.”
Although experts can testify in any case in which their expertise is relevant, criminal cases are more likely to use forensic scientists or forensic
psychologists, whereas civil cases, such as personal injury, may use forensic engineers, forensic accountants, employment consultants or care experts.
Senior physicians — U.K., Ireland, and Commonwealth consultants, U.S. attending physicians — are frequently used in both the civil and criminal
The Federal Court of Australia has issued guidelines for experts appearing in Australia courts. This covers the format of the expert's written
testimony as well as their behavior in court. Similar procedures apply in non-court forums, such as the Australian Human Rights and Equal