This chapter considers expert witnesses, who have specialized knowledge. Sometimes expert evidence is not only allowed but required. Non-percipient experts cannot be compelled to testify and may command substantial fees.

Some American courts apply the traditional Frye standard: Novel scientific evidence requires “general acceptance” for admission. Many have joined the federal jurisdiction in applying the Daubert standard, which charges courts with a “gatekeeper role” assuring reliability of expert evidence.

An expert must be certified as qualified by the court. The FRE abrogated the traditional rule barring expert testimony as to the “ultimate issue” of the case, but a narrow provision concerning the mental state of a criminal defendant restored the rule in part. Often, the witness’s expertise does not furnish a basis for an opinion on the ultimate issue.

A hypothetical question may include as premises facts on which the expert bases her opinion. But abuses led the FRE to prescribe that hypothetical questions are unnecessary. The FRE also streamline proof by prescribing that predicate facts need not be admissible in evidence if they are the types on which experts in the field reasonably rely. But in some cases the expert may be a conduit for out-of-court testimonial statements, creating a problem, not yet resolved, under the Confrontation Clause.

Court-appointed experts are common in some settings. English civil rules exert encourage parties to agree to a single joint expert. And “hot-tubbing,” in which the respective experts present a joint report and testify interactively, has gained a foothold in some jurisdictions.

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