Academic journal article The Review of Litigation

Examination of Prior Expert Qualification And/or Disqualification-(Questionable Questions under the Rules of Evidence)

Academic journal article The Review of Litigation

Examination of Prior Expert Qualification And/or Disqualification-(Questionable Questions under the Rules of Evidence)

Article excerpt

I. INTRODUCTION

It is standard practice in the art of trial advocacy to inquire whether an expert has previously been qualified and/or excluded (disqualified) from testifying in a court of law. Such a practice is routine and common in most, if not all, jurisdictions and venues. It is overwhelmingly accepted by practitioners1 and judges2 alike. Law school clinical programs systematically instill this practice.3 Professional and continuing legal education seminars remind the licensed professionals to adhere to it.4 This foundational inquiry has become such a basic tenet of the art of trial advocacy that it is rarely met with objection. And yet, the information elicited from such inquiry provides little practical insight into the qualifications of the tendered expert. Moreover, the information elicited is incompatible with fundamental legal rules, i.e., the rules forbidding hearsay, opinion, unduly prejudicial evidence, and the rule barring support of one's witness.5 Finally, and most importantly, such information may tip the scales of justice in a close case and, arguably, may result in reversible error.

Is this practice pursued out of habit originating from the practitioner's first trial advocacy course taken in law school? Is it pursued because most professional skills courses reiterate the utilization of this foundational inquiry? Is it pursued because judges simply allow it? Or more importantly, is this line of inquiry pursued because it is tactically designed to prejudicially influence the trier of fact's perception of the credibility and reliability of the opinion being proffered? Certainly, an affirmative answer to any or all of the above questions is insufficient to justify this continuing practice.

The apparent easy acceptance of the admissibility of judicial qualification (or failure to qualify) in other cases by practitioners and trial courts is surprising when one considers the potential legal issues raised by this evidence. It is also surprising that little appellate discussion of these issues can be found. Moreover, a review of the forensic literature dealing with expert qualification favorably supports the practice of inquiring as to an expert witness's prior qualification. It also fails to recognize the operative legal issues relating to it.

This article explores, analyzes, and summarizes the evidentiary considerations with respect to the specific inquiry regarding whether a testifying expert has ever been previously qualified and/or excluded (disqualified) as an expert by a court. Ultimately, we conclude that, generally,7 such an inquiry is improper and should be prohibited as a matter of law.

II. THE COURTROOM INQUIRY

A witness may offer an expert opinion in court only if he or she is shown to be "qualified as an expert by knowledge, skill, experience, training or education."8 The trial judge has the duty to decide, by a preponderance of evidence, whether or not the witness is appropriately qualified.9 When introducing an expert to the judge and jury, counsel will likely offer evidence of the witness's success in qualifying in other cases. If the witness has never been previously qualified, the opponent, predictably, will raise this ostensible weakness when attacking the witness's qualifications.10 Once the witness has been deemed qualified and has rendered an opinion, the fact that he or she may not have testified as an expert in a previous case or, worse yet, failed to qualify when proffered as an expert previously, will be fertile ground for attacking the expert's credibility.

In his textbook, Trial Techniques, Professor Mauet11 provides the following instructional example:

Example:

Q. Dr. Adams, have you been accepted as an expert in orthopedic surgery by the courts of this country?

A. Yes.

Q. How many times?

A. I believe it's been 14 times.12

Judge Goldstein instructs the practitioner to pursue the following line of inquiry:

Accepted as experts by courts. …

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