SC Lawyer, Jan. 2005, #2. Beyond the Bar - Witch Doctors: Part 1.

AuthorBy Warren Moise

South Carolina Lawyer


SC Lawyer, Jan. 2005, #2.

Beyond the Bar - Witch Doctors: Part 1

South Carolina Lawyer January. 2005

Beyond the Bar - Witch Doctors: Part 1(A mostly non-Daubert look at expert witnesses)By Warren MoiseMassachusetts had serious problems back in the 1600s. The colony was inundated with witches! Courts were duly convened. It was there that the first documented American expert witness appeared. It was - not an evil lawyer, but surprise - a medical doctor. That's right: a physician assisted the trier of fact by identifying "witchmarks." In fact, not a single lawyer participated in the Bury St. Edmunds witch prosecutions.

The expert was very helpful. All of the human witches were completely eradicated. The learned and shrewd physician even helped expose two suspicious-looking dogs as witches, and the canines were quickly put to death. Massachusetts has been safe from this scourge ever since. South Carolina tried its last witch in the 1700s. Expert witnesses are still a problem, however.

This column looks at some ups, downs, ins and outs of expert testimony. In doing so, I promise to keep Daubert dogma to a minimum.

Who you callin' "expert"?!

Trial lawyers know that an expert can be found to testify that a rhino is a mouse or that a doorknob suffers from lower-back pain. One may ask why judges cloak these characters with respectability by anointing them as "experts." Some modern courts refuse to do so. Instead, these courts refer to experts as "opinion witnesses" rather than put a judicial stamp of approval on them as any more credible than other witnesses. There is much to commend this rule. Accord Fed. R. Evid. 702 advisory committee note 2000 amendment.

I pity the rule . . . .

Which (no pun intended) rules apply to experts?

Rule 702 sets forth the basics about expert testimony. Rule 703 regulates the bases for expert opinions. The Staff Notes to S.C. Rules 702 and 703 provide that they are identical to their federal counterparts. This is incorrect because those two federal rules were amended in 2000. S.C. Rule 704 is identical to the pre-1984 amendment to Federal Rule 704. Federal and S.C. Rules 705 are identical.

There is no state evidence rule comparable to Federal Rule 706, which deals with court appointed experts. However, South Carolina does have certain statutes dealing with appointed experts. See...

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