Montgomery County Criminal Defense Attorney - Texas Rules of Evidence Rule 705 Expert Voir Dire
Montgomery County Criminal Defense Attorney - Brian Foley - Board Certified in Criminal Law
This is probably my favorite rule of Evidence in Texas! (Maybe dying declarations but we'll get to that one later when we get to the 800s)
RULE 705 of the Texas Rules of evidence is the enforcement provision for the other expert qualifications. 705 tells the opposing lawyer how to figure out that the expert witness your opponent is calling to the stand is a quack and that the jury shouldn't listen to him. Basically the rule says you get a free practice cross examination of the witness to 1. try to disqualify them as being able to testify at all, 2. to limit or "lock down" their testimony. Bonus, the rule REQUIRES this to be done outside the presence of the jury so you get to ask the expert all the questions you want to see how they respond and then only ask the good ones later when the jury comes back in. It is like getting a free deposition on the spot at trial. “Under Rule 705(b), infra, a criminal defendant is undeniably entitled, upon timely request, "to conduct a voir dire examination” Alba v. State, 905 S.W.2d 581, 587 (Tex. Crim. App. 1995)
The first step that we should talk about when discussing rule 705 is actually found in The Michael Morton act which is codified under 39.14 of the Texas Code of Criminal Procedure.
The rule says that if you request notice of expert witnesses 30 days before trial the opposing side must give you that expert's name and address. I suggest calling the expert witness prior to trial and asking them to tell you what they expect to testify to. If they refuse to answer you can cross examine them on this point. If they change or expand the scope of their testimony you can use that against them too. You can ask for a copy of their CV and nothing beats a good old google search to see what this expert has been up to or if they have said anything controversial that might limit their effectiveness at trial.
But if you don't do any of this prior to trial, and even if you do, you should utilize the procedures of Rule 705.
Under Rule 705(b), infra, a criminal defendant is undeniably entitled, upon timely request, "to conduct a voir dire examination . . . ” Alba v. State, 905 S.W.2d 581, 587 (Tex. Crim. App. 1995)
First Rule 705 states that an expert may give their opinion without first testifying to all the data that goes into that decision. This allows the lawyer on direct examination of the expert to lay out the theory of the testimony and conclusion without boring the jury with all the minutiae of the science underlying the opinion. This is definitely how you should handle your testifying expert if you have one on direct examination. It is called "direct" for a reason. Be direct! But don't forget to cover the broad reasoning as to why the data are correct because you know opposing counsel is going to come in behind you and offer all the reasons why your expert is full of crap.
The second part of Rule 705 is the part that discusses "voir dire." In Texas we call jury selection "voir dire" but we also call cross examining a witness outside the presence of the jury a "voir dire." I am not sure why but that is what we call it. Part (b) reads, "Before an expert states an opinion or discloses the underlying facts or data, an adverse party in a civil case may—or in a criminal case must—be permitted to examine the expert about the underlying facts or data. This examination must take place outside the jury’s hearing." Did you catch those two musts? There is no discretion on the part of the trail judge to not allow you to do this practice cross examination, and to do out without the jury present. You MUST be permitted to examine the expert and it MUST be outside the jury's hearing. I suppose if the judge had a really impressive white noise machine the jury could be allowed to stay in the courtroom. However this is almost always accomplished by having them return to the jury room.
So when you begin this cross examination you should start by asking what documents or other information have they been provided and reviewed. If they haven't reviewed a whole lot then you may be able to show they don't really understand the facts of your case. Ask if they have interviewed any witnesses. Have they ever even talked with a person involved in the case. You can imagine how this sounds to a jury who thinks the expert is familiar with the case but hasn't talked to a single person.
Affording a defendant the chance to voir dire the State's expert witnesses gives defense counsel the opportunity to determine the foundation of the expert's opinion without fear of eliciting damaging hearsay or other inadmissible evidence in the jury's presence. Goss v. State,826 S.W.2d 162, 168 (Tex.Cr.App. 1992), cert. denied, ___ U.S. ___, 113 S.Ct. 3035, 125 L.Ed.2d 722 (1993).
Alba v. State, 905 S.W.2d 581, 588 (Tex. Crim. App. 1995)
You can also ask for how much the expert is being paid. You should ask bias questions like how many times have you testified for a plaintiff's lawyer, or defense lawyer, or for the State of Texas. Has it been exclusively for one side? Get into the weeds and ask all the questions you can think of in this initial examination. See what you can get them to say and then use those answers to hone down you cross examination in front of the jury later. If the expert says they didn't review something and then change their mind in front of the jury beat the witness over the head with this inconsistency.
The last important part of Rule 705 is that there is a balancing test which allows the judge to limit the information that the expert discloses related to the underlying science. Remember rule 403? It was the rule that limited evidence that although relevant, was substantially more prejudicial. Well 705 has a similar test. It says that your expert can't disclose underlying facts or data related to their expert opinion if their probative value in helping the jury evaluate the opinion is outweighed by their prejudicial effect. Key difference here is that it doesn't have to be SUBSTANTIALLY outweighed, it just has to be regular outweighed? What does this mean in real life? Not much difference. It basically means if the judge doesn't like it then it is not coming into evidence. And what standard will it be reviewed on by an appellate court? Abuse of discretion. It means its up to the trial judge entirely for all practical purposes. Joiner v. State, 825 S.W.2d 701, 708 (Tex. Crim. App. 1992).
Rule 705. Disclosing the Underlying Facts or Data and Examining an Expert About Them
(a) Stating an Opinion Without Disclosing the Underlying Facts or Data. Unless the court orders otherwise, an expert may state an opinion—and give the reasons for it— without first testifying to the underlying facts or data. But the expert may be required to disclose those facts or data on cross-examination.
(b) Voir Dire Examination of an Expert About the Underlying Facts or Data. Before an expert states an opinion or discloses the underlying facts or data, an adverse party in a civil case may—or in a criminal case must—be permitted to examine the expert about the underlying facts or data. This examination must take place outside the jury’s hearing.
(c) Admissibility of Opinion. An expert’s opinion is inadmissible if the underlying facts or data do not provide a sufficient basis for the opinion.
(d) When Otherwise Inadmissible Underlying Facts or Data May Be Disclosed; Instructing the Jury. If the underlying facts or data would otherwise be inadmissible, the proponent of the opinion may not disclose them to the jury if their probative value in helping the jury evaluate the opinion is outweighed by their prejudicial effect. If the court allows the proponent to disclose those facts or data the court must, upon timely request, restrict the evidence to its proper scope and instruct the jury accordingly. Comment to 2015 Restyling: All references to an “inference” have been deleted because this makes the Rule flow better and easier to read, and because any “inference” is covered by the broader term “opinion.” Courts have not made substantive decisions on the basis of any distinction between an opinion and an inference. No change in current practice is intended.
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