Custom «Criminology. Expert Witness: Group Project» Sample Essay
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An expert witness is a witness who has knowledge and experience in a particular field that is beyond such of a layman. This enables the particular expert witness to testify in regard to an issue that requires expertise to comprehend it.
To become an expert witness, a number of qualities have to be possessed by the witnesses including, but not limited to, the number of years they have practiced in their field of expertise, their work experience, any scientific publications, certificates, special training, peers’ recognition, and academic degrees (Wägenbaur, 2013, p. 757-760).
There are several restrictions imposed upon an expert witness. To begin with, an employee cannot serve as an expert witness, unless on the behalf of the State or with the authorization of his or her agency. In addition to that, one cannot serve as an expert witness if he or she is a special Government employee (Wägenbaur, 2013, p. 757-760).
In the witness stand, there is a difference between a lay witness and an expert one. On the one hand, a lay witness is a person that can act as an expert in terms of common sense and life-long experience in the field concerning the case. On the other hand, an expert witness holds specialized knowledge in the area/field that concerns the case and whose opinion is called upon (Wägenbaur, 2013, p. 757-760).
The Daubert Rule vs. The Frye Standard
There has been an ongoing heated debate concerning expert testimony. This is due to the fact that scientific evidence has been frequently misused by the involved parties to send innocent defendants to jail. Since 1923, the courts have been using the Frye standard to serve purposely for admission of general acceptance of scientific facts and evidence in the courts of law. However, in 1993, the Supreme Court of the United States gave a verdict that the Frye test was no longer sufficient enough as an admission of scientific evidence. Since the Daubert vs. Merrell Dow Pharmaceuticals case, the Frye standard was superseded by the Daubert standard as far as the admissibility of scientific evidence was concerned.
The Frye test was approved in 1923 during the Frye vs. U.S. case where James Frye was tried for murder. In his defense, he used the deception test (the one where the results of his blood pressure were monitored by an expert) to prove that he was telling the truth (he was not guilty of murder). This case became the basis for judges to allow the admissibility of the testimony of experts based on scientific methods.
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The Daubert standard resulted in 1993 from a case Daubert vs. Merrell Dow Pharmaceuticals, when the Supreme Court withheld that Rule 702 of the Federal Rules of Evidence did not incorporate the Frye standard to evaluate the admissibility of expert scientific testimony. Instead, a reliable test known as the Daubert standard was adopted.
The main difference between the Daubert standard and the Frye test is that whereas the latter applies to the admissibility of expert testimony based on scientific knowledge, the former also allows the admissibility of expert witness testimony based on technical and other specialized knowledge. Both of these tests come in handy while tackling the burden of misuse of expert testimony in the court of law. Still, the Daubert standard allows for the admissibility of more expert witness as compared to the Frye test, therefore, more evidence is presented to the court of law (Kadane, 2005).
Ethical Issues That Can Determine the Disqualification or Retention of an Expert Witness
An expert witness in a given case has to have a good-to-excellent ethical background since ethics plays a major role in determining whether his/her testimony will be considered in the court of law. Lawyers research into the experts’ background, as well as the expert-client relationship, the expert’s relationship with the opposing party in order to check for any conflict of interest (Bernabei, Radler & Mendonsa, 2013).
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The expert testimony is essential for any successful defense or claim in many complex litigations. Since the area is vital in evidence law, there has been a continuous revision to the rules often attacking the experts’ ethical conduct. Ethical standards not only give confidence to the counsel’s conduct in retaining or communicating with an expert witness but are vital when he or she seeks to disqualify the witness from the case. Within the distinct area of case law, the failure to adhere to ethical standards can result in the negative outcome for a litigant, which therefore leads to the expert’s testimony exclusion from a given case (Wägenbaur, 2013, p. 757-760).
There are numerous instances when the issues relating to expert testimony involve its admissibility. Due to this, cases of raised motions to exclude some expert witness based on the ethical concerns are most common. Here, one standard method of disqualifying some expert testimony in the federal system involves the “Daubert challenge” (Wägenbaur, 2013, p. 757-760). In this case, the court serves as a gatekeeper and may exclude any expert testimony on the basis of unreliability or improper scientific methods. This means that if a lawyer or an attorney is able to bring forth the evidence pointing out ethical misconduct, the judge is able to exclude the testimony of the particular expert witness (Wägenbaur, 2013, p. 757-760).
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Ethical principles governed by the Daubert standard or the Frye test in the admissibility of the testimony are performed in the same way as any other motion before the judge. The Daubert challenge will be processed through Federal Rule of Civil Procedure 11 and the Models of Professional Conduct, in particular, Rule 3.3. The first rule prevents any frivolous motions and pleadings while the second one pertains to an honest and candid testimony before a judge (Bernabei et al., 2013).
The admissibility of an expert’s testimony can be either prevented or rejected by following Rule 11. The case involving an ethical issue will simply be processed and argued based on the facts that have been researched by the lawyer to see whether the expert testimony is kept or disqualified (Bernabei et al., 2013).
It may be possible that a litigant has some chance of successfully challenging an expert testimony without using the above methods. Here, the party may present before the court the expert’s prior relationship with the other party thus invoking the ethical shortcomings that will enable the court to exclude that testimony. The challenge should be able to show how the expert has failed to comply with Rule 26 and Rule 35 of the Federal Rules of Civil Procedure (Kadane, 2005).
Differently, presenting the conflict of interest analysis that employs the proper reasoning of the model of the American Bar Association can be used to disqualify an expert’s testimony. As long as there is a conflict of interest proved by the opposing party, the expert’s testimony is not considered (Bernabei et al., 2013).
The importance of ethics cannot be ignored when it comes to breach of contract. If, in any way, the expert witness shows a breach of contract between him or her and the defendant in question which qualifies as ethical misconduct, the testimony is invoked in the court of law. This is not limited to the case in question, but an expert bound by the law to protect the information of his clients has the obligation to do so unless ordered otherwise by the court (Kadane, 2005).
The above-mentioned shows how ethics plays a large part in the testimony of an expert witness. In this sense, the witness has to conduct him or herself in the best ethical manner possible to ensure that his or her opinion is considered in the court of law. Ethics is vital in any expert testimony and that is why lawyers and attorneys check any testimony first in regard to the ethics of the expert.
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