Can a Fact Witness Provide Expert Opinion When Not Designated as an Expert Witness?
Witnesses are some of the most important parts of any litigation process. They usually have the power to turn a case around and completely change the course of a legal court case. However, they’re not exactly a simple topic to talk about.
For starters, witnesses come in two main varieties. You will usually use expert witnesses and fact witnesses for any given case. They both serve entirely different purposes, and they both have very different rules in place for how they’re allowed to behave.
However, sometimes, they can have a dual purpose and sort of intersect with each other.
Today, we want to go over what the two are and how they work individually, and then we’ll cover how they intersect and whether or not a fact witness can provide expert opinion.
Let’s get started.
What Each Type of Witness Does
Fact witnesses typically don’t provide expert opinion on anything. That is reserved for expert witnesses. That’s what a lot of individuals get wrong.
So, to help you understand the point of this guide fully, we’re going to cover what each of these witness types are in detail.
What is a Fact Witness?
A fact witness is the witness type that most people are familiar with. In short, it’s someone who was around when the events in question took place. For example, if a murder trial was going on, and someone was pulled in to testify that they were walking by when it happened, that would be a fact witness. They saw, heard, or otherwise had some sort of connection to the events in question, and they can provide a first-hand perspective of the event.
Fact witnesses have their advantages and disadvantages.
In a positive way, they can be anyone. They don’t have to be professionals in any sort of field, and they really don’t have to know much. They simply have to be people who can provide a first-hand recollection of the events that took place. They can be a local fast-food employee who happened to walk by while a crime took place, an arresting officer, or a white-collar business professional who happened to see odd activity taking place. It doesn’t matter, as long as they have FIRST HAND experience.
However, because the information provided by a fact witness almost always has to be first-hand recollections of the specific events in question, a lot of arguments can be made to take advantage of a witness’s poor wording or other problems.
A fact witness can also have their reliability questioned far more easily. They’re often not backed by the extensive history of experience and proven credibility, and that makes them easier to question. Also, because they’re less experienced at trial, it is possible that they’ll break courtroom rules more easily.
However, fact witnesses are still extremely important. They provide a first-hand look at what happened, and if they’re credible, they have no reason to be persuasive; unlike the defendant or plaintiff who have every reason to steer the court’s opinion in their favor.
Fact witnesses are fairly easy to get, too. Because they’re anyone who has a relevant first-hand experience with the events in question, there aren’t many rules regarding what they have to do to be considered qualified by the court.
What is an Expert Witness?
An expert witness is very different from a fact witness. Instead of providing a first-hand perspective of certain aspects of the case, an expert witness will provide explanations for things that are important to the case. Typically, this is done to inform the jury.
For instance, if the case is over a drug dealer being charged with someone’s death, the witness probably wouldn’t make any judgements on the intent of the defendant. Instead, they’d explain the effects of the drug that was used and any experience they had with patients who took the drug. That would educate the jury and allow them to know exactly what is possible when that substance is taken instead of letting them take guesses (since they likely aren’t taking the substance or know what it does).
That type of expert testimony can be used by either party to help determine guilt or prove innocence, and it can be used in any sort of case. Expert witnesses are used in most cases, both civil and criminal, and they tend to be a major factor in the jury’s decision due to their expertise.
An expert witness is also fairly hard to contradict. In order to qualify as an expert, the individual typically has to have roughly a decade of hands-on experience in the field they claim to be an expert in, have made multiple accomplishments within that field, have an ongoing or peaked educational experience in that field, and also belong to multiple high-profile organizations for the top members of that field. Of course, it’s not required that all those extensive requirements be met, but it’s ideal, because it proves that the individual knows what they’re talking about. It’s a lot more difficult to argue with a testimony provided by someone like that than a fact witness who simply says they saw or heard something.
However, it’s also far more difficult to get an expert witness who can help with your case. They’re required to testify solely on what they’ve experienced throughout their career. They cannot use third-party information, and they typically won’t provide in-depth opinions directly about the opposing party; instead providing information that supports their team’s case. Since they must be non-biased, legal teams also have to take care while hiring expert witnesses. If their first-hand experience supports the other side’s points, hiring them can be extremely detrimental.
Finally, an expert witness has to be declared to the court early on, and they typically have to be reviewed by the court to ensure that they meet the requirements laid out by law; often times, they must also be declared to the opposing legal team.
Can a Fact Witness Provide Expert Opinions?
Sometimes, a fact witness isn’t just an average person who happened to be nearby when the events the case is based around occurred. They can be an expert in their field, and still have first-hand experience with the events that took place.
A good example of this is a drug team officer who pulls over a driver and finds out they have large amounts of drugs in their car. The officer will likely meet the qualifications to be an expert, but they’re a fact witness who is directly involved with the case.
Usually, a fact witness will not be allowed to provide any sort of opinion. That includes an expert opinion. They are there for one reason; to relay exactly what they saw, heard, or otherwise experienced to the court to help the court come to a conclusion about what happened. Allowing them to provide opinion whenever they wanted would create numerous problems for the judicial system.
However, that’s not always the case. They can occasionally take on the rolls of both fact witnesses and expert witnesses, providing testimonies in both regards.
The Dual Witness Concept
Dual witnesses aren’t supported the same way in every state. Some states might use them frequently, and some states might frequently deny them the ability to testify.
A dual witness is when a witness is cleared to provide a fact-based testimony, but they’re also allowed to provide an expert opinion. This is not a simplistic task, because courts typically have strict rules in place for both when a dual witness is allowed, and how the dual witness can conduct themselves in court.
To qualify as a dual witness, the legal team has to declare the witness as a fact witness, and then explain to the court how being a dual witness is warranted. If cleared to be a dual witness, the witness has to provide their testimonies separately.
First, the witness would provide their fact-based testimony. This is the testimony regarding what they saw, heard, experienced, or did in regards to the case. The must be purely factual and without any sort of opinion involved.
However, the dual witness may then provide a lay testimony giving an expert opinion. The expert opinion will be treated exactly as if the fact witness were just a normal expert witness, though. They would have to present it in a non-biased manner, separate it from the opposing party, and go only off of their experiences in the field.
The law enforcement field is a good example of when this is allowed.
For instance, let’s say an officer responds to a standard domestic call to break up a familial fight. During the call, he hears people in the house using slang terms for drugs, and has reason to believe drug distribution is going on within the home. He calls for backup, gets a warrant, and makes a drug bust.
Because the officer have years of experience and training handing drug cases, he might take on the role of a dual witness.
First, he’d be responsible for giving his rendition of what happened during the altercation just like any other sort of fact witness.
However, he can also be called upon to explain what the slang terms he heard mean due to his incredible experience level, provide information regarding what he knows about small scale drug distributors, etc. During this lay testimony, the dual witness wouldn’t be focused on the defendant. At least, not directly. He would be citing his experiences in the field as if they were totally detached from the defendant. This would give the jury a good understanding of what happened and the meaning behind words or actions they’re not entirely familiar with, but it will still allow the officer to give his first-hand account of the issues at hand.
When Can Fact Witnesses Provide Expert Opinion?
It is possible for a fact witness to provide expert opinions. However, they have to be approved to fall under another type of witness in able to do that. They have to become a dual witness. If they are simply labeled as a fact witness, they will not be allowed to provide opinions on anything. If they do, their entire testimony can be thrown out.
For example, let’s say a McDonald’s worker walks by and sees a murder take place. In court, they testify. Giving opinions about what motivates random killings would be far out of their wheelhouse,, and it would be unacceptable.
However, if the same McDonald’s employee was an expert in some aspect relevant to the case, they mght be granted dual witness permission, and that point, they can provide expert opinions.
One crucial part of this process is the approval process, though. Dual witnesses are normal in some areas, but they’re not as welcome in others. When you couple that with the fact that the decision to approve or disapprove dual witness status, it basically means that being a dual witness is up to the judge. If they think it’s appropriate, they can have you drop the fact witness title and become a dual witness.
Should You Get a Dual Witness?
You typically don’t get to choose whether or not you get a dual witness to support your case. It requires a bit of luck since the witness has to be involved with the events somehow, and they have to be able to prove it. There’s a lot of luck involved in that.
However, it’s not impossible. If one of the fact witnesses you’re interviewing is also a documented expert, you got extremely lucky.
When that happens, it’s a good idea to take advantage of it. Dual and triple testimony approaches are some of the most powerful tools in a court case. They provide the reliability and quality demanded by a courtroom when handling the facts, but they also work as a convenient source for material to educate the judges.
If possible, a dual witness is a great addition to any team.
However, if you can’t find one, you should reach out to a professional litigation service. They can help you vet expert witnesses and strategize to take the wind.