Can an Expert Disclosed as a Fact Witness Testify at Trial?
Witnesses are key parts of any trial. Whether they are helping determine the guilt of someone accused of heinous crimes, or they’re simply helping someone get compensation after a slip and fall accident, they often end up being one of the biggest determining factors in a case’s outcome.
However, witnesses are a lot more complicated than you might think. There are different types of witnesses, and each type has to abide by a set list of rules if their opinions and testimonies are to be taken into consideration during a trial; the court doesn’t just let you pull anyone in and let them run wild.
The two main types of witnesses are expert witnesses and fact witnesses. The two operate in totally different manners, and it’s usually just a case of understanding what witness is considered and then following the rules for that type of witness. What happens when you combine the two, though?
Well, the rules get even more complicated, and if you miss any tiny details, your witness’s point of view can be stricken from the records entirely, or they might not even be allowed to testify at all.
Let’s take a look at what these types of witnesses are, how they differ, and what happens when you try to get an expert opinion from a disclosed fact witness.
The Basics of Expert and Fact Witnesses
Before we can get into trying to combine the two types of witnesses, you need to know what they do on their own. So, we’re going to cover expert witnesses and fact witnesses separately, right now.
What is an Expert Witness?
An expert witness is one of the two main types of witnesses. There are sub-categories of expert witnesses, but they all meet the same basic requirement; an expert witness is someone who is extremely experienced in a specific aspect of the case, and their unbiased opinion on certain crucial factors of the case comes from years of experience and hands-on learning instead of actually witnessing the specific events that unfolded to cause the trial.
An expert witness isn’t easy to get, either. An expert witness is usually someone with at least a decade of experience in the relevant field, typically has several high-profile accomplishments within that field, and is part of multiple high-profile organizations. That proves that the expert’s opinions are to be taken seriously, and that they truly have the experience necessary to warrant them presenting their opinions to the court.
Expert witnesses can also be used for different reasons. They are often used solely for consultation, they can provide deliberation testimonies without actually testifying during the trial, and sometimes, they’re even used to help vet other expert witnesses.
Because an expert witness is supposed to be non-biased, they are typically not involved in the case or with the parties involved in any way. They are also not to be persuaded to testify a certain way. Their testimonies are meant to be purely from their personal experiences as a professional. There are special exceptions to this, but that has to be declared appropriately, and the court typically has to approve of it. This increases the work necessary to find an expert witness, because the team hiring the witness has to spend copious amounts of time interviewing several witnesses to find one who’s experiences will match the case the team is trying to make.
It’s also worth noting that an expert witness is usually being used to inform the jury, and help the jury gain a better understanding of the evidence they’re provided with; while this isn’t always the case, it is the most common.
What is a Fact Witness?
A fact witness is what you’re probably more familiar with. These are the witnesses that were present when the crime or whatever happened took place, saw or heard something useful, or have in-depth knowledge about one of the parties relevant to the case. These witnesses don’t need to meet many special requirements besides possessing a first-hand perspective of something relevant to the case.
However, because they’re not experts, many testimonies that are purely opinion or formed based on third-party information are considered hearsay. Their testimonies can also be debated more easily since they typically don’t have decades of professional experience and accolades supporting them.
The first-hand experience with the events that caused the case is what makes fact witnesses, when they’re reliable and trustworthy, such a crucial part of the judicial process, and even with an expert witness, there is still a need for as many reliable and supporting fact witnesses as possible.
Can Expert Witnesses Function as Fact Witnesses?
There are special cases when the functions of expert witnesses and fact witnesses might intersect, or when a fact witness happens to have a lot of experience that is relevant to the case. This becomes a more complicated situation when it comes to building a case and using the witness to full effect without having their testimony blocked by the court by technical rules.
Typically, to resolve this sort of issue, the court has to go through an examination process, and the decision will be left to the court in many municipalities.
It’s not as common for someone declared as an expert witness to testify as a fact witness, but it is possible depending on the court officials making the decision, and a large variety of state-dependent rules.
Fact Witnesses Testifying as Expert Witnesses: The Dual Witness Concept
Before a court case, your legal team must declare the witnesses you’ve gathered and how they’ll be used. Typically, the decision of how to declare those witnesses is fairly simplistic. If they have nothing to do with the case, but they’re an expert in a relevant field, they’re an expert witness. If they witnessed the event, they’re a fact witness.
However, there are often cases where a fact witness also counts as an expert in a field relevant to the case. This becomes a dual witness; their expertise will be treated as a secondary lay testimony, and their hands-on experience with the specific case in question will be their main testimony.
Good examples of this concept being used can be found in police-involved cases and medical cases.
Example 1: A Police Traffic Stop Turned Drug Bust
For this example, imagine a police officer with fifteen years on the force, many of which were spent in a drug unit, making a routine traffic stop.
The officer pulls over a driver for not having a license plate on their vehicle. During this routine traffic stop, the officer sees a large bag with illegal substances in it in the back seat, and he begins a more serious arrest process. He finds a cellphone with recent text messages that use many slang terms for illegal substances, and he can infer that the individuals were part of a larger operation instead of simply being in possession of illegal substances.
During the trial, the officer’s primary testimony would cover the events that happened during the arrest. He’d go over how the traffic stop started, what led to the more thorough search of the vehicle, and everything in between.
However, it’s unlikely that the jury would understand the slang used in the texts the officer found, the implications of having such a large amount of a given substance, etc. The court can allow the officer to step away from his first-hand experiences with the accused individuals in this specific case, and allow him to use his years of experience on a drug unit to explain, in a non-biased fashion, what the evidence means for the case and how it implies his opinion of what the defendants were doing.
Example 2: Medical Malpractice
Another time this is a common occurrence is in the medical field. It’s not as common as the previous example, because it requires something to go wrong in the medical field, but it does happen.
Let’s say that a resident doctor at the local hospital has been accused of intentional malpractice by over prescribing medications. Another doctor with years of experience has seen the frequency the accused has prescribed the medicine, and in the much higher-than-average doses that he is accused of giving out.
The witnessing doctor is obviously highly experienced in the exact line of work that the defendant is accused of performing improperly. The witness will take an approach similar to the officer highlighted above.
They’ll start by providing their account of the defendant’s behavior, what they’ve seen, any relevant conversations they’ve had with the defendant, etc. Beyond that, they can then go on to provide testimony as an expert by explaining what the standard dosage is for the medication in question and the types of things it is used for going off their own professional experience. They can also testify how much is too much, the consequences of taking too much, and other bits of expert information that the jury likely doesn’t know on their own.
In this case, the doctor would also become a dual witness.
When is a Dual Witness Allowed to Testify?
Getting a dual witness as part of your legal team is not as simple as finding someone who is both an expert and involved with the case. Because this dual testimony approach is fairly novel and only relevant in certain types of cases, there are some processes that must be done before a fact witness is allowed to provide expert opinions.
First, the witness would have to be declared as a fact witness. Then, their expertise would have to be declared, and the court would have to look at several factors to determine whether or not the testimony would be allowed.
The extent of the fact witness’s expertise would have to be examined; things such as their years of experience, level of education, and relevant accomplishments would be examined to see if they even qualify as an expert. Simply having a little experience isn’t enough.
The reason for the dual testimony would also be looked at. The judge would aim to identify if the expert testimony is being used to inform the jury of complex parts of the case, or if it is simply being used as an unfair form of persuasion.
If it is found that the dual witness approach is acceptable and relevant, the court can choose to allow it.
It’s important to bring this to the court as early as possible to ensure that the standard process for entering witnesses is followed, and that the court has time to review the witness and their qualifications for providing expert opinions.
How Can I Find an Expert Witness?
Finding a fact witness who can also provide an expert opinion typically isn’t something that you can do on your own. A lot of it comes down to luck unless there’s a highly specific situation such as the examples listed earlier.
However, finding an expert witness to support the case built by your fact witnesses is far easier. There’s still a process involved, but you don’t need to worry about getting lucky and having an expert nearby when the events took place.
Hiring an expert witness is a lot like hiring an employee. You need to discover a pool of possible options, and then you need to reach out. After you’ve contacted several, there is an extensive interview process necessary to find the right one. Sometimes, it’s even a good idea to get a non-testifying expert to help vet testifying experts before hiring anyone.
You’ll obviously want to figure out the basics of their qualifications. Typical things to look for are years of real-life experience, a high level of education, and plenty of accomplishments and group memberships. This not only ensures the witness will be accepted by the court as an expert, but it also proves they know what they’re talking about.
The second part is much more complicated. You have to ask the right questions to ensure their experiences and opinions will benefit your case instead of helping the opposing party.
Of course, you can skip this process by working with a qualified litigation service that can help you find the expert witness that is perfect for your team.