EXPERT QUALIFICATIONS & TESTIMONYPaul C. GiannelliAlbert J. Weatherhead III & Richard W. WeatherheadProfessor of Law, Case Western Reserve UniversityConference on Science and LawSan DiegoApril 15, 1999I. FEDERAL EVIDENCE RULE 702 provides that a witness may qualify as an expertby reason of “knowledge, skill, experience, training, or education.”A. Fed. R. Evid. 104(a)(determining qualifications is a matter for the trial court).B. Appeals. Trial court’s decision is reviewable only for an abuse of discretion.Hamling v. United States, 418 U.S. 87, 108 (1974) (“[TJhe District Court haswide discretion in its determination to admit and exclude evidence, and this isparticularly true in the case of expert testimony.“); Salem v. United States LinesCo., 370 U.S. 31,35 (1962) (Trial judge has “broad discretion in the matter of theadmission or exclusion of expert evidence, and his action is to be sustained unlessmanifestly erroneous.“).II. RULES OF THUMBA.Wigmore: witness’s expertise “may have been attained, so far as legal rules go,in any way whatever; all the law requires is that it should have been attained.” 2J. Wigmore, Evidence 556, at 75 1 (Chadbourn rev. 1979).B. Fed. R. Evid. 702 advisory committee’s note: “[T]he expert is viewed, not in anarrow sense, but as a person qualified by ‘knowledge, skill, experience, trainingor education.’Thus within the scope of the rule are not only experts in thestrictest sense of the word, e.g. physicians, physicists, and architects, but also thelarge group sometimes called ‘skilled’ witnesses, such as bankers or landownerstestifying to land values.”C.“[T]he rule uses the disjunctive, a person may qualify to render expert testimonyin any one of the five ways listed: knowledge, skill, experience, training, oreducation.” Kopf v. Skyrm, 993 F.2d 374,377 (4th Cir. 1993).D. Academic degrees.“Qualifications which may satisfy the requirements of Evid.R. 702 are multitudinous. . . .[T]here is no ‘degree’ requirement, per se.Professional experience and training in a particular field may be sufficient toqualify one as an expert.” State v. Mack, 653 N.E.2d 329 (Ohio 199.5).E. Expert need not be an “outstanding practitioner in the field in which heprofesses expertise.”United States v. Barker, 553 F.2d 1013, 1024 (6th Cir.1977) .“An expert need not have certificates of training, nor memberships inprofessional organizations . .. . Comparisons between his professional stature andthe stature of witnesses for an opposing party may be made by the jury, if itbecomes necessary to decide which of two conflicting opinions to believe.Butthe only question for the trial judge who must decide whether or not to allow thejury to consider a proffered expert’s opinions is, ‘whether his knowledge of thesubject matter is such that his opinion will most likely assist the trier of fact inarriving at the truth.“’ IdF. Similar qualifications between experts testifying on the same issue are notrequired. United States v. Madoch, 935 F. Supp. 965,972 (N.D. Ill. 1996)(“[Olne expert need not hold the exact same set of qualifications to rebut anotherexpert’s testimony....This Court need not analyze, as Defendant contends itshould, whether a psychologist or psychiatrist is more qualified to testify as to thepsychological condition of a patient at the time of the offense.“).G. Titles. Expert’s qualifications should be based on the nature and extent of thewitness’s knowledge and not on the witness’s “title.” Jenkins v. United States, 307F.2d 637,643-44 (D.C. Cir. 1962) (reversing trial court’s ruling that psychologistswere not qualified to testify on the issue of insanity because they lacked medicaltraining) (“[we must examine the reality behind the title ‘psychologist.“‘).H.Crimipals. United States v. Williams, 81 F.3d 1434, 1441 (7th Cir. 1996)(“There was no pretense that he was impartial, or a member of a learnedprofession. Neither condition is required to qualify a person as an expert witnessunder the current rules of evidence.... There is not even a paradox in thesuggestion that the biggest experts on crime are, often, criminals.“), cert. denied,118 S. Ct. 723 (1998); United States v. Johnson, 575 F.2d 1347, 1360-61 (5th Cir.1978) (experienced marijuana smoker qualified to testify that certain marijuanacame from Colombia), cert. denied, 440 U.S. 907 (1979).I. Licensing in a field in usually not determinative, but in one case, the court heldthat a witness not licensed to investigate fires under a state statute was notqualified to testify about the cause of a fire in an arson prosecution. People v.West, 264 Ill. App. 3d 176,636 N.E.2d 1239 (1994).2J.Certification: Voiceprints. United States v. Williams, 583 F.2d 1194, 1198 (2dCir. 1978), cert. denied, 439 U.S. 1117 (1979) (“existence and maintenance ofstandards”, citing the certification procedures of the International Association ofVoice Identification. As the National Academy of Sciences Report later noted,this Association “as presently constituted does not possess the broad base ofrepresentation usually considered appropriate and perhaps essential for a nationalcertifying board.” National Research Council, On the Theory and Practice ofVoice Identification 65 (1979). Williams cited in Daubert.K.Stipulation. “We conclude that an offer by the State to stipulate to thequalifications of an expert witness called by the defendant is merely an offerunless accepted by the defendant. Absent such acceptance, the defendant has theright to present the witness’ qualifications to the jury.” State v. Colwell, 790 P.2d430,434 (1990).III.LAY & EXPERT TESTIMONY DISTINGUISHEDA.Overlap.“[T]he lay witness is using his opinion as a composite expression of hisobservations otherwise difficult to state, whereas the expert is expressing hisscientific knowledge through his opinions.” Ladd, Expert Testimony, 5 Vand. L.Rev. 414,419 (1952). See also United States v. Carlock, 806 F.2d 535,552 (5”Cir. 1986) (“Unlike expert opinion, where the opinion is the product of applyingspecial skill in some art, trade, or profession acquired apart from the case, layopinion expresses a conclusion drawn from observations in circumstances whereit is impractical, if possible at all, to recount the observed ‘factual’ components ofthe opinion. The common illustrations are an expression of opinion by a layobserver of a car’s speed or a person’s expression or emotional
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