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May 21, 2024, 03:15:45 AM

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Removing Expert Witnesses from Your Case

Bruce Eden of the Divorce Reform Coalition of NJ has some excellent suggestions on how to defuse or remove so called "expert witnesses" from your case.
An interesting point has been brought up about "expert witnesses". Every one of you should be putting these so-called "expert witnesses" up on the witness stand, or the very least having depositions and having them answer interrogatories, to determine if they are credible or not.

The two questions you should be asking and demanding answers for are "What degrees do you have?" and "What organizations are you affiliated with?" Another question you might ask "Are you getting government reimbursements for supervised visitation or to render reports against one parent or the other?"

Questioning the so-called "expert witness" is called a "Frye hearing". Based on the case Frye v. United States, 293 Fed. 1013 (D.C. Cir. 1923), the test involves whether a scientific theory (i.e.--battered women's syndrome; child abuse accusations, etc.) or technique was generally accepted in the relevant scientific community.

The U.S. Supreme Court has held that judges must only admit scientific evidence only when it is reliable. The U.S. Supreme Court held in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), that once a court determines that the evidence is reliable, it must then satisfy itself that the evidence will assist the jury or trier of facts. And is the expert testimony based on research the expert has conducted independent of the litigation.

Under the Federal Rules of Evidence, F.R.E. 702 you have the right to demand that an "expert witness" be examined and cross-examined by any due process means (litigation, discovery, or interrogatories). Expert testimony should be excluded if it is not relevant to the issue in the case.

Common examples of expert testimony that has been held inadmissible include testimony concerning domestic law. Common objections are that expert lacks sufficient basis for opinion, the expert is not qualified, expert opinion is speculative, conjectural; question calls for speculation. These objections would be especially necessary where there is a bias being presented by the "expert opinion" in determination of child custody, supervised visitation, domestic violence issues, or false allegation of abuse issues.

Under F.R.E. 403, relevant evidence can be excluded on the grounds of prejudice, confusion or waste of time. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, misleading a jury or trier of fact, or causes undue delay (as in visitation delays). The key under this rule of evidence is that the evidence or expert testimony must be "unfairly" prejudicial, in that there is an undue tendency to suggest decision on an improper basis. Unfairly prejudicial includes presenting a point to the trier of fact that would make them sympathize with one or the other party (emotional), arouses a sense of anger or horror, or provokes an instinct to punish.

If you can understand these points, you can use them in any family court case against the other side's "expert witness" or even the adversary or his/her attorney as well.

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