Expert Witness Testimony

Ethics are very significant in testimonies given by expert witnesses. The American Bar Association (ABA) had not introduced enforceable system regarding ethics and the way attorneys ought to maintain good behaviors until 1908 (Dror, Kassin, and Kukueka, 2013). The organization later introduced several ethics that have been the main source of direction concerning judicial and lawyer ethics. Nevertheless, this paper will discuss ethics in testimonies of expert witnesses and how courts could allow the Daubert Rule and the Frye Standard determine expert witnesses for their cases.

The main function of ethics is to ascertain the minimum principles for tolerable conduct (Dror, and Rosenthal, 2008). Lawyers functioning effectively in an opposition justice system possess two duties; loyalty and confidentiality. They should assure their clients that no information will be applied against them. Clients that doubt their lawyers fail to remain candid with their counsel. Therefore, confidentiality is a very important virtue when a lawyer-client relationship materializes. There is a consistent strain to safeguard confidentiality and simultaneously recognize an attorney’s responsibility to the justice system and society. Clients should also be confident that their lawyers serve their interests rather than their own or other individuals. This alludes to the loyalty concept. The minimum principles imposed by the ABA encourage a superior principle of conduct. The WSC (Washington Supreme Court) highlighted this by maintaining the section of “Fundamental Principles” from the 1985 regulations. Additionally, lawyers should take a unique Washington amendment that reviews the moral approach. The amendment states that; “In the nature of law practice, however, conflicting responsibilities are encountered.

Virtually all difficult ethical problems arise from conflict between a Lawyer’s responsibilities to clients, to the legal system and to the lawyer’s own interest in remaining an ethical person while earning a satisfactory living. The Rules of Professional Conduct often prescribe terms for resolving such conflicts. Within the framework of the Rules, however, many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules. These principles include the lawyer’s obligation conscientiously and ardently to protect and pursue a client’s legitimate interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system” (Jasanoff, 2005).

Some courts require the services of an expert witness because they present distinctive testimonies. Courts present expert witnesses with greater latitudes to convey professional knowledge for facts interpretation; comparison of applicable standards with the issue at hand; and views as to whether the supposed infringement of standard was dangerous (Nemeth, 2001). Sometimes, expert testimony is an essential facet in trial and expert witnesses must provide professional or responsible testimony. Such testimonies must also be non-deceptive, scientific, and truthful. Successively, Rule 16 of the Academy’s Code of Ethics oversees member conduct in offering expert witness evidence. It also delineates prerequisites for expert witnesses and conduct guidelines. Expert witnesses should not (Park, 2001);

a) Present unrestricted and legal license to practice.
b) Misrepresent his/her credentials, background, experience, and qualifications.
c) Should offer unbiased, objective testimony, instead of misleading, deceptive, or false testimony.
d) Should clearly discern malpractices and negligence.

Admissible opinions have created more debates in the legal occupation for many years. Traditional lawyers frequently identified expert and lay opinions and this characteristic remained with the implementation of the current ER (Rules of Evidence). ER 701 restricts the range of testimony allowed to normal witnesses while the ER 702 permits testimony from experts (Walle, 2009). The Rule allows expert testimony is technical, scientific, or further specialized information will help judges and lawyers to comprehend or determine facts. It also requires expert witnesses to have proper education, training, experience, skills, and knowledge. A competent expert is afterward permissible to testify through his/her opinions or else. The code of ethics also prohibits expert witnesses from testifying falsely to a case. If a lawyer identifies that an expert gave falsified information, he/she possess differing responsibilities under the current Rules. The lawyers are allowed to disclose that fact to the court unless Rule 1.6 prohibits it. Rule 1.6 states that lawyers should not disclose confidential information.

Expert witnesses appointed by courts are governed by the ER 706. This Rule allows courts to select their own expert witnesses. Court clerks write and file the duties of expert witnesses. The parties involved are given the chance to take part in the expert witness obligations. The expert witness should advise the parties of their findings while their deposition is taken. The Code of Judicial Justice (CJC) limits the capability of judges to acquire external counsel from law experts (Gatowski, 2001). Gatowski (2001) also stipulates that Canon 3(A) (4) allows judges to get counsel from an impartial expert witness on the regulation applicable to a previous trail through mere amicus curiae, if they give parties levelheaded chance to counter (Atlas and Atlas, 2001). Nevertheless, courts can allow both the Daubert Rule and the Frye Standard to distinguish an expert witness for a case.

The Daubert rule offers a ‘rule of evidence’ about the acceptability of testimony from expert witness throughout the U.S. federal official proceedings (Jasanoff, 2005). About seven court members use the following strategies to acknowledge scientific expert evidence. The role of a judge entails gate keeping and assuring the court that scientific expert evidence accurately progresses from scientific information. The guidelines require the trial judge to guarantee the significance of the expert witness testimony. The other guideline is that a conclusion qualifies as scientific information if a proponent demonstrates that the knowledge have scientific method. In the Daubert rule, Rule 702 involves testimony by expert witnesses. It was amended in 2011 to simplify the language. A qualified witnesses can testify in court if:

a) He/she has reliable used the methods and principles to the information of the case.
b) The evidence originates from reliable methods and principles.
c) The evidence is founded on adequate data or facts.
d) The technical, scientific or further specialized information will assist the court to comprehend the testimony or verify facts.

The Daubert standard supersedes the Frye standard in most jurisdictions with states such as Washington, Minnesota, Illinois, California, and Maryland still applying it (Melnick, 2005).  The Frye Standard also called the general acceptance test can be applied to distinguish an expert witness for a case. It is defined as an experiment to distinguish the acceptability of technical evidence. It stipulates that expert viewpoint founded on a scientific method is only acceptable when the method is acknowledged as consistent in the significant technical sphere. Lawyers meet the Frye standard by presenting scientific proof in court for interpretation as “generally admissible” through a detrimental section of the related technical community (Neufeld, 2005). This pertains to techniques, standards, and procedures presentable in a court case proceedings. Proponents of an extensively disputed technical issue practically apply this standard to present several experts talking about scientific validity behind the issue at hand.

New techniques positioned under the analysis of this principle compelled courts to study judicial models, books, and papers on the current issue to determine the ‘general acceptance’ and reliability. In conclusion, expert witnesses are very important in a court of law as they give opinions based on their scientific knowledge. However, they can distort evidence when courts fail to provide set guidelines. An expert witness should have important skills, knowledge, and credentials. An expert witness must present professional or responsible testimony in court. The information presented should be non-deceptive, technical, and straightforward. Lawyers have identified different experts through the Rule of Evidence such as ER 701 and ER 702. The ER 701 confines the span of testimony permissible to normal witnesses while the ER 702 permits testimony from experts. Courts can select expert a witness using two standards namely The Daubert rule and the Frye standard. The Daubert rule presents a ‘rule of evidence’ regarding the testimony admissibility from expert witness throughout the U.S. national legal trial while the Frye standard distinguished the admissibility of technical evidence.

References
Atlas, N.F., & Atlas, S.J., (2001). Finding, Preparing, and Defending an Expert in the Age of Judicial Gatekeepers. Retrieved September 14, 2006 from American Bar Association at Dror, I., Kassin, S., & Kukueka, J. (2013). New Application of Psychology to Law: Improving Forensic Evidence and Expert Witness Contributions. Journal of Applied Research in Memory and Cognition, 2: 78-81. Dror, I., E., & Rosenthal, R. (2008). Meta-Analytically Quantifying the Reliability and Biasability of Forensic Experts. Journal of Forensic Sciences, 53:900–903. Gatowski, S. (2001). “Asking the Gatekeepers: A National Survey of Judges on Judging Expert Evidence in a Post-Daubert World”. Law and Human Behavior 25 (5): 433–458. Jasanoff, S. (2005). Law’s Knowledge: Science for Justice in Legal Settings. American Journal of Public Health, 95 (1): 49–58. Melnick, R. (2005). A Daubert Motion: A Legal Strategy to Exclude Essential Scientific Evidence in Toxic Tort Litigation. American Journal of Public Health 95 (1):30-34 Nemeth, C.P., (2001). Law & Evidence: A Primer for Criminal Justice, Criminology, Law, and Legal Studies. Upper Saddle River, New Jersey: Prentice-Hall, Inc. Neufeld, P. (2005). The (Near) Irrelevance of Daubert to Criminal Justice and Some Suggestions for Reform. American Journal of Public Health 95 (1):107-113. Park, C. (2001). Trial Objections Handbook (2 eds.). St. Paul, Minnesota: West Group. Walle, S. (2009). Confidence in the Criminal Justice System: Does Experience Count? British Journal of Criminology, 49(1): 384-398.