Expert Testimony: A Judge s Perspective HON. JACK D. DAVIS, II JUDGE OF THE CIRCUIT COURT, SANGAMON COUNTY, ILLINOIS

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1 Expert Testimony: A Judge s Perspective HON. JACK D. DAVIS, II JUDGE OF THE CIRCUIT COURT, SANGAMON COUNTY, ILLINOIS

2 Demographics Number of those in attendance with experience as: A sworn law enforcement officer Private sector consultant / expert Testifying in a criminal case Testifying in a civil case Testifying at TRIAL in either case Just a show of hands on IL residents

3 What is expert testimony? Must aid the trier of fact to understand an issue that is beyond the ken of the average juror If the issue(s) is not beyond that knowledge, expert testimony will not likely be allowed. To allow testimony is within the Judge s discretion Could be considered cumulative or confusing It is the Judge s duty to act as gatekeeper to ensure that the fact pattern is one that is appropriate for expert testimony

4 So, What is Accident Reconstruction Testimony? "Reconstruction testimony" is testimony that seeks to recreate an accident, including who hit whom, where was the impact and how fast the parties were going as determined by skid marks, debris, and damage to the vehicles. Hudson v. City of Chicago, 378 Ill. App. 3d 373, 317 Ill. Dec. 262, 881 N.E.2d 430 (1st Dist. 2007) While it can encompass recreation of an accident, it is not recreation testimony

5 Case law in Illinois Watkins v. Schmitt (1996) and Petersen v. Lou Bachrodt (1979) There is no place for the opinion of the reconstruction expert if the determinative facts are otherwise established by credible physical or eyewitness evidence. 2 Trial Handbook for Illinois Lawyers - Civil 50:33 (8th ed.)

6 What is not allowed? So when would expert testimony NOT be permitted- some examples: A case where the blue car runs the red light and smashes into the green car with seven eyewitnesses to the collision who all agree (cumulative) Eyewitness testimony is not conclusive as to whether expert testimony comes in could be contradictory or confusing The speed of a vehicle as witnessed and opined upon by laypersons In some cases, the location of debris to indicate mechanics of collision Is it because a jury will assign too much weight to the expert s opinion? In many cases, physical evidence generally leaves a betrayal readily read by the average juror, and no expert is needed.

7 What will be allowed? Contradictory eyewitness testimony or lack of any witnesses In some instances, location of debris as an indication of point of impact Angle of departure of vehicles post-impact Braking and vehicular response Analysis and recreation/ simulation of the event Data analysis from event data recorders Re-enactments: must be substantially similar Turner v. Williams Human factors/ Biomechanics testimony

8 Relevant Illinois Rules of Evidence IRE 702 and 703 Became effective in January : If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. Where an expert witness testifies to an opinion based on a new or novel scientific methodology or principle, the proponent of the opinion has the burden of showing the methodology or scientific principle on which the opinion is based is sufficiently established to have gained general acceptance in the particular field in which it belongs.

9 Standards of Admissibility- Frye v. Daubert Two competing standards depending on jurisdiction/ court Frye v. Daubert To ensure expert testimony is relevant and reliable 16% of States are Frye / 78% apply Daubert / 6% are a hybrid What s the difference? General acceptance vs. Four factor test Illinois Rule of Evidence 702 codifies and confirms that Illinois is a Frye state Rule 702. TESTIMONY BY EXPERTS If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. Where an expert witness testifies to an opinion based on a new or novel scientific methodology or principle, the proponent of the opinion has the burden of showing the methodology or scientific principle on which the opinion is based is sufficiently established to have gained general acceptance in the particular field in which it belongs.

10 Frye v. Daubert comparison Frye focuses on the underlying methodology rather than the ultimate opinion- expert opinion based on a scientific technique is admissible only where the technique is generally accepted as reliable in the relevant scientific community Daubert established a five factor analysis that considers (1) whether the methodology has been tested (2) whether the theory is peer reviewed (3) whether there is a known rate of error (4) if the theory has been generally accepted in the relevant community and (5) whether there are standards applicable to the technique So, is it easier to pass muster under Frye than Daubert? States with Frye: CA, FL, IL, MD, NJ, NY, PA, WA

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12 The Expert s Reliance on Information Rule 703 provides that an expert witness may rely upon a fact not admitted into evidence in forming the basis of his opinion if the fact is of a type reasonably relied upon by experts in the particular field in forming opinions upon the subject. (Wilson v. Clark) Hearsay statements, traffic accident reports (often unreliable), written statements, medical records- must be subject to cross Not carte blanche. Beware of GIGO Example: (a) medical device case and (b) school bus crash case People v. Jacupcak Northwestern University Reconstruction Manual Trooper s opinion flawed

13 Reasonable Degree of Scientific Certainty What does it mean? Possibilities and Probabibilities What does it NOT mean? (Not the law of averages), Conjecture or Guesswork If you form an opinion, ascribe to it own it. Authoritative treatises. What is the significance on cross exam?

14 Disclosure Requirements and Consultation with Counsel Rule 213 and FRCP 26 Deposition Consulting with counsel- traps for the unwary Draft reports Tough question: Was there any opinion you had that is favorable to the other side Personal practice- uniform standards-what is authoritative

15 Additional Rules of Evidence ( ) May testify as to ultimate issue- especially important here May give supporting data or reasons for opinion without first testifying concerning the details of the data- as long as subject to cross

16 IPI (Illinois Pattern Instruction) Credibility You have heard a witness give opinions about matters requiring special knowledge or skill. You should judge this testimony in the same way you judge the testimony from any other witness. The fact that such person has given an opinion does not mean that you are required to accept it. Give the testimony whatever weight you think it deserves, considering the reasons given for the opinion, the witness's qualifications, and all of the other evidence in the case. Ill. Pattern Jury Instr.-Civ. 3.08, Ill. Pattern Jury Instr.-Civ Never be shy to acknowledge or concede certain points

17 How important are credentials? You re an expert and by the time you testify the jury will have heard about you Don t gild the lily educational achievements and the Ivory Tower Know your audience (i.e. rural vs. urban, agricultural vs. industrial, red vs. blue) While it is important to display your knowledge on a topic, it is more important to be conversational and explain concepts simply

18 Takeaways Overdisclose not underdisclosure Credibility don t gild the lily and acknowledge weakness Know your audience no ivory tower