Lay and Expert Witnesses Part 11

Lay Witnesses and Their Testimony

  • Lay witnesses are individuals who can provide opinion evidence based on their everyday experiences, which is admissible in court under certain conditions.
    • Examples of permissible lay opinions include observations regarding:
    • A person's age.
    • The speed of a vehicle.
    • Weather conditions.
    • Sobriety.
    • Handwriting.
  • Criteria for Admissibility of Lay Witness Opinions:
    • A proper foundation must be established.
    • The witness must demonstrate first-hand knowledge based on their observations (saw, heard, perceived).
    • Example of admissible testimony where the witness gives a gist of a conversation if verbatim details cannot be recalled.

Example of Lay Opinion Evidence:

  • Hypothetical Scenario (Example 4.34): A witness testifies about a motor vehicle accident:
    • The witness identifies a driver appearing under the influence of alcohol.
    • Questions and Answers from the testimony:
    • Q: What happened after the cars came to a halt?
      A: The driver of the Mazda 3 got out of his car.
    • Q: How long did you watch him?
      A: About two minutes.
    • Q: What was he doing?
      A: Walking around and talking to people.
    • Q: How would you describe his walk?
      A: More like a stumble than a walk, hesitant and jerky; he almost fell over multiple times.
    • Q: Description of his facial features?
      A: His face was red and sweaty, eyes looked glazed.
    • Q: Were you able to hear what he was saying?
      A: Yes, though he wasn't making much sense; speech was slurred and halting.
    • Q: Have you seen a drunk person before?
      A: Of course, probably a few hundred times.
    • Q: How would you describe the driver's condition?
      A: He definitely appeared to be drunk.

Expert Witnesses

Role of Expert Witnesses in Litigation

  • Experts are increasingly utilized in litigation across various fields, including:
    • Economists and accountants in commercial cases.
    • Engineers and architects in construction cases.
    • Medical practitioners in personal injury and medical negligence cases.
    • Fingerprint and DNA experts in criminal cases.
  • Purpose of Expert Testimony: To explain technical matters and provide clarification to the jury.

Requirements for Expert Testimony:

  1. Evidentiary Test:
    • The judge must determine if the expert's specialized knowledge qualifies them to provide opinion evidence.
  2. Persuasion Test:
    • The expert's testimony must be persuasive and comprehensible to the jury.

Qualifications of an Expert:

  • An expert's opinion is based on:
    • Specialized knowledge from training, study, or experience.
    • Must be outside the competence of an average lay person.
    • Valuable to assist the jury in understanding evidence or determining facts in issue.
  • Experts do not necessarily require formal qualifications; practical experience is often sufficient.

Juror Expectations of Expert Witnesses

  • Understanding jury concerns can enhance how expert testimony is received. Key points include:
    1. Complexity of Testimony:
    • Jurors often find expert testimony complicated and may feel overwhelmed.
    • Strategy: Simplify the evidence, limit unnecessary technical details, and provide logical structure in questioning.
    1. Boredom:
    • Jurors expect expert testimony to be dull.
    • Strategy: Ensure testimony is engaging with a fast pace and relevant visual aids.
    1. Expertise:
    • Jurors may doubt the expert, especially if they appear young or inexperienced.
    • Strategy: Highlight the expert’s qualifications and experience to build credibility.
    1. Perceived Bias:
    • Concerns may arise regarding the expert's impartiality.
    • Strategy: Present evidence demonstrating fair-mindedness and reasonable compensation.
    1. Condescension:
    • Jurors may feel the expert is patronizing.
    • Strategy: Humanize the expert, showing them as approachable and focused on helping the jury understand evidence.

Preparation of Expert Witnesses

  • Preparing an expert is crucial, often more extensive than preparing a lay witness. Key considerations include:
    • Do not skip pre-trial preparation, even for seasoned experts.
    • Qualifying the Expert:
    • Collect and review the expert’s curriculum vitae.
    • Discuss and rehearse questions for qualifying the expert efficiently.
    • Avoiding Technical Language:
    • Encourage the expert to avoid jargon; if necessary, have them define technical terms clearly.
    • Ensure familiarity with latest relevant literature and publications in their field.
    • Make definitions consistent with established technical dictionaries to avoid cross-examination vulnerabilities.