Abbott and Haliburton Co., 2015 SCC 23 (SCC) R. Admissibility is contingent upon establishing that the proposed expert evidence is relevant to the issues being litigated, that it is necessary to assist the trier of fact, that the area of expertise is not subject to an exclusionary rule, and that the expert is properly qualified ( White Burgess Langille Inman v. In Canada, the admissibility of expert witness testimony is governed by case law rather than codified rules. This overriding test applies to all evidence and is frequently argued in the context of expert evidence that otherwise passes admissibility tests. The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. Even if the evidence is admissible via FRE 702, it must also withstand scrutiny under FRE 403: There remains a further overriding test that is used to assess whether expert evidence will be admissible. Provisions akin to FRE 701 and 702 are found in state codes of evidence and govern prosecutions at the state level. It is therefore the expert’s scientific, technical, or other specialized knowledge that sets the expert witness apart from the lay witness and justifies a broader opinion repertoire on the witness stand. (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. (b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue and (a) rationally based on the witness’s perception If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: Lay witness testimony is covered by Rule 701 as follows: (d) the expert has reliably applied the principles and methods to the facts of the case. (c) the testimony is the product of reliable principles and methods and (b) the testimony is based on sufficient facts or data (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue federal prosecutions are set out in Federal Rule of Evidence 702 as follows:Ī witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: The parameters of expert witness testimony in U.S. Opinions and conclusions presented by expert witnesses are restricted to the subject matter of the expert’s stated field of expertise. Expert witnesses assist the trier of fact in drawing inferences in areas where the expert has relevant knowledge and experience beyond that of a lay person. I will refer the “lay” witness as that is the term used in the jurisprudence, although “fact” witness is also a colloquially used term. Practically, what sets experts apart from lay witnesses is that while both types of witness can provide the court with factual data, only the expert witness is permit toed to evaluate the data and render an opinion as to what it means. Finally, I will discuss the impact of that choice on the expert when testifying.Īn expert witness is someone with specialized knowledge in a particular area of expertise who applies that knowledge in a judicial setting. Second, I will outline the decision-making process involved in choosing which avenue to follow when presenting the testimony of an expert. I will first discuss the differences between an expert witness and a lay witness. The decision may have significant ramifications and the purpose of this article is to explore that topic in more detail. When I teach my Courtroom Testimony for Expert Witnesses course, a topic that frequently arises is how the decision is made as to whether to present an expert as an expert witness or a lay witness at trial.
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