§ 24.05 QUALIFICATIONS REQUIREMENT

• Jurisdiction: United States

§ 24.05. QUALIFICATIONS REQUIREMENT

If the subject matter is a proper one for expert testimony, the next question is whether the proffered witness is qualified in that subject matter. Rule 702 provides that a witness may be qualified as an expert by "knowledge, skill, experience, training, or education."¹²² The trial judge determines this issue pursuant to Rule 104(a).¹²³

The party offering a witness as an expert carries the burden of establishing that the witness is qualified. There are some rules-of-thumb. For example, the expert need not be the best witness on the subject, nor "an outstanding practitioner in the field in which he professes expertise."¹²⁴ The expert generally need not be licensed, although this factor is relevant to the qualification issue. Nor must the expert's qualifications match those of the opposing side's experts.¹²⁵ Furthermore, the expert's qualifications should be based on the nature and extent of the witness's knowledge and not on the witness's "title."¹²⁶

Practical experience. Experience alone may qualify a witness to express an opinion. There is no "degree" requirement, per se.¹²⁷ Wigmore stated the matter this way: The 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."¹²⁸ For example, a woodworker with 36 years experience could testify about the construction of chairs.¹²⁹ One case even involved an experienced "marijuana smoker."¹³⁰

Testimony beyond expertise. An expert qualified in one subject may not be qualified in another (even a related) subject.¹³¹ For example, a police officer may be qualified to operate a breathalyzer but not qualified to interpret its results. The training and experience needed to perform these two distinct functions are very different.¹³² Similarly, a police officer may be qualified to conduct a horizontal gaze nystagmus test (an intoxication test) but not be qualified to interpret the results.¹³³ In other words, there is a difference between a scientist and a technician.

Hired gun. In civil litigation, the "hired gun" phenomenon arises. Some experts spend more time testifying than practicing in their field.¹³⁴

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Notes:

^[122] See Fed. R. Evid. 702 advisory committee's note ("The expert is viewed, not in a narrow sense, but as a person qualified by 'knowledge, skill, experience, training or education.' Thus within the scope of the rule are not only experts in the strictest sense of the word...