Montgomery County Criminal Defense Attorney - Texas Rules of Evidence Series RULE 702

Montgomery County Criminal Defense Attorney - Brian Foley - Board Certified in Criminal Law

Rule 702 is the rule of Testimony by Expert Witnesses. An Expert witness is a special type of witness that has knowledge, skill, experience, training, or eduction that separates them from the general population on some topic. The best example of an expert witness testimony comes from the movie My Cousin Vinny. In the movie Joe Pesci's girlfriend, played by Marisa Tomei, testifies in court as an expert witness on car motors. She had no formal training but her father and brothers worked on cars all the time and she was so knowledgable about the subject do to this experience that she was qualified as an expert witness. You may be thinking "only in the movies" but you'd be wrong. This is probably the most realistic depiction of how to qualify a witness as an expert in movie history.

All you have to do is show that the witness's specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.

The two main cases you need to be aware of is Daubert v. Merrel Dow Pharms., Inc. 509 U.S. 579 (1993) In Daubert and Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992). In these cases the Supreme Court of the United States and the Texas Court of Criminal Appeals decided that Judges will be the "gatekeepers" to junk science and that the proponent of novel scientific evidence must prove the scientific reliability by a clear and convincing standard. The proponent must show that “(a) the underlying scientific theory must be valid; (b) the technique applying the theory must be valid; and (c) the technique must have been properly applied on the occasion in question.” Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992)

This is the gold standard of Expert witness testimony and all other decisions on the matter are an analysis of this language.

(a) the underlying scientific theory must be valid; (b) the technique applying the theory must be valid; and (c) the technique must have been properly applied on the occasion in question.” Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992)

In Fielder v. State 756 S.W.2d 309, 321 (Tex. Crim. App. 1988) a psychologist was allowed to talk about battered woman's syndrome to explain why a woman my endure in an abusive relationship.

The reviewing court will make judgments on an abuse of discretion standard. Fox v. State 115 S.W.3d 550, 565-66 (Tex. App. -- Houston [14th Dist.] 2002, pet. ref'd) held that a trial court could exclude a social worker's expert testimony about child sexual abuse because she didn't concentrate her practice on children and didn't have other specialized knowledge in that she hadn't had training on how to interview children in sexual assault cases.

If you have an expert witness on the stand you should try to build up their credentials as much as possible in front of the jury so that the witness can appear competent and they will have a frame of reference for why they might want to listen to what the witness has to say. Expert witness testimony can be very powerful if presented logically and clearly by a competent attorney.

If the opposing side is offering expert witness testimony you should ask to voir dire the witness outside the presence of the jury in order to examine the qualifications of the expert for purposes of objecting under rule 702. This will also be left up to the trial judge's discretion but most judges are familiar with this procedure and will make opposing counsel pass the witness to you for this purpose. A voir dire in this sense means cross examination of the witness as opposed to jury selection like it commonly is referred to in Texas.

Rule 702. Testimony by Expert Witnesses A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.

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