Expert Witnesses
in the Behavioral Sciences and Law
Judges, prosecutors and lawyers know the law. Most are not educated in the behavioral sciences. Most juries are also not experts on psychology and the law. So how will a judge, jury or lawyer know when sham science is being presented by an expert witness in the courtroom? They won’t. A case can hinge on the testimony of the expert witness. Ignorance is not bliss in this situation. A lawyer’s lack of a background in psychology can significantly affect the chances of winning results for his or her client.
This is precisely why the rules governing expert testimony are so important. The law does not simply permit a witness to offer an opinion because that person is called an “expert.” Before expert testimony reaches the factfinder, the court serves a gatekeeping function designed to determine whether the witness is qualified and whether the opinions offered satisfy the applicable requirements for admissibility and reliability.
The admission of expert testimony is governed by each jurisdiction’s rules of evidence. In the federal courts, Rules 702 and 703 provide the principal framework governing the qualifications and testimony of expert witnesses and the facts or data upon which their opinions may be based. Fed. R. Evid. 702–703. Most states have adopted analogous provisions, although the numbering, language, and governing admissibility standards vary by jurisdiction, as demonstrated in the chart below.
Notably, Federal Rule of Evidence 702 recognizes that expertise may arise from multiple sources. A witness may qualify as an expert by “knowledge, skill, experience, training, or education.” Fed. R. Evid. 702. Qualification alone, however, does not make an expert’s opinions admissible. The proponent must also establish that the expert’s specialized knowledge will assist the trier of fact, that the testimony is based on sufficient facts or data, that it is the product of reliable principles and methods, and that those principles and methods have been reliably applied to the facts of the case. Fed. R. Evid. 702; Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589–95 (1993). Rule 703 further governs the factual foundation upon which an expert may form an opinion. Fed. R. Evid. 703.
Fed. R. Evid. 703 addresses the foundation upon which an expert forms an opinion. An expert may base an opinion on facts or data that the expert has personally observed or has otherwise been made aware of. Importantly, the information relied upon need not always be independently admissible in evidence. An expert may rely upon otherwise inadmissible information when experts in the particular field would reasonably rely upon information of that type in forming an opinion on the subject. Fed. R. Evid. 703. This provision recognizes that experts routinely integrate multiple sources of information in reaching professional conclusions. In the behavioral sciences, these sources may include psychological testing, clinical interviews, behavioral observations, collateral interviews, medical and mental-health records, educational records, prior evaluations, and other case materials. Rule 703, however, does not provide an unrestricted pathway for placing otherwise inadmissible evidence before the jury. When the underlying facts or data would themselves be inadmissible, they may be disclosed to the jury only when their probative value in helping the jury evaluate the expert’s opinion substantially outweighs their prejudicial effect. Fed. R. Evid. 703.
Although Federal Rules of Evidence 702 and 703 govern expert testimony in federal courts, each state applies its own rules, statutes, and controlling case law governing the admission and foundation of expert testimony. Many states have adopted provisions that closely parallel Federal Rules 702 and 703, while others use different numbering, statutory provisions, or state-specific standards. States also differ in the reliability framework applied to expert testimony, including Daubert, Frye, modified or hybrid approaches, and independently developed state standards. The following chart provides a state-by-state comparison of the principal provisions governing expert qualification and admissibility, the bases upon which experts may form their opinions, and the prevailing reliability standard applied in each jurisdiction.
| State | Expert admissibility / qualification | Basis of expert opinion (703 equivalent) | Governing reliability standard |
|---|---|---|---|
| Alabama | Ala. R. Evid. 702 | Ala. R. Evid. 703 | Hybrid/modified — 702(b) Daubert-type for scientific testimony |
| Alaska | Alaska R. Evid. 702 | Alaska R. Evid. 703 | Daubert — State v. Coon |
| Arizona | Ariz. R. Evid. 702 | Ariz. R. Evid. 703 | Daubert |
| Arkansas | Ark. R. Evid. 702 | Ark. R. Evid. 703 | Daubert — Farm Bureau v. Foote |
| California | Cal. Evid. Code §§ 720, 801–802 | §§ 801–802 | Kelly/Frye for novel science + Sargon gatekeeping |
| Colorado | Colo. R. Evid. 702 | Colo. R. Evid. 703 | Daubert-type/Shreck |
| Connecticut | Conn. Code Evid. § 7-2 | §§ 7-2, 7-4 | Daubert/Porter |
| Delaware | Del. R. Evid. 702 | Del. R. Evid. 703 | Daubert/Kumho |
| Florida | Fla. Stat. § 90.702 | § 90.704 | Daubert |
| Georgia | Ga. Code § 24-7-702 | § 24-7-703 | Daubert |
| Hawaii | Haw. R. Evid. 702 | Haw. R. Evid. 703 | Hybrid; Daubert instructive but not formally controlling |
| Idaho | Idaho R. Evid. 702 | Idaho R. Evid. 703 | Hybrid; Daubert factors informative |
| Illinois | Ill. R. Evid. 702 | Ill. R. Evid. 703 | Frye for new/novel science |
| Indiana | Ind. R. Evid. 702 | Ind. R. Evid. 703 | Modified/hybrid; Rule 702(b), Daubert informative |
| Iowa | Iowa R. Evid. 5.702 | Iowa R. Evid. 5.703 | Hybrid; neither strict Frye nor Daubert |
| Kansas | K.S.A. § 60-456 | K.S.A. § 60-456 | Daubert |
| Kentucky | Ky. R. Evid. 702 | Ky. R. Evid. 703 | Daubert/Kumho |
| Louisiana | La. Code Evid. art. 702 | art. 703 | Daubert |
| Maine | Me. R. Evid. 702 | Me. R. Evid. 703 | Maine reliability standard; neither Frye nor Daubert |
| Maryland | Md. R. 5-702 | Md. R. 5-703 | Daubert-type after Rochkind |
| Massachusetts | Mass. Guide Evid. § 702 | § 703 | Daubert-Lanigan |
| Michigan | MRE 702 | MRE 703 | Daubert |
| Minnesota | Minn. R. Evid. 702 | Minn. R. Evid. 703 | Frye-Mack |
| Mississippi | Miss. R. Evid. 702 | Miss. R. Evid. 703 | Daubert |
| Missouri | Mo. Rev. Stat. § 490.065 | § 490.065 | Daubert-type; exceptions exist |
| Montana | Mont. R. Evid. 702 | Mont. R. Evid. 703 | Hybrid; Daubert principally for novel scientific evidence |
| Nebraska | Neb. Rev. Stat. § 27-702 | § 27-703 | Daubert/Kumho |
| Nevada | NRS 50.275 | NRS 50.285 | Nevada-specific standard; neither Frye nor Daubert |
| New Hampshire | N.H. R. Evid. 702; RSA 516:29-a | N.H. R. Evid. 703 | Daubert |
| New Jersey | N.J.R.E. 702 | N.J.R.E. 703 | Daubert-type |
| New Mexico | N.M. R. Evid. 11-702 | 11-703 | Daubert for scientific testimony; does not fully adopt Kumho |
| New York | NY common law/Guide to NY Evid. 7.01 | Common-law basis rules | Frye |
| North Carolina | N.C. R. Evid. 702 | N.C. R. Evid. 703 | Daubert |
| North Dakota | N.D. R. Evid. 702 | N.D. R. Evid. 703 | State-specific; declines Daubert/Kumho |
| Ohio | Ohio Evid. R. 702 | Evid. R. 703 | Daubert |
| Oklahoma | 12 O.S. § 2702 | § 2703 | Daubert/Kumho |
| Oregon | OEC 702 | OEC 703 | Brown/O’Key reliability standard; Daubert-type |
| Pennsylvania | Pa. R.E. 702 | Pa. R.E. 703 | Frye expressly incorporated into Rule 702(c) |
| Rhode Island | R.I. R. Evid. 702 | R.I. R. Evid. 703 | Daubert/Kumho |
| South Carolina | S.C. R. Evid. 702 | S.C. R. Evid. 703 | State-specific Council reliability standard |
| South Dakota | SDCL 19-19-702 | 19-19-703 | Daubert |
| Tennessee | Tenn. R. Evid. 702 | Tenn. R. Evid. 703 | Modified/McDaniel standard |
| Texas | Tex. R. Evid. 702 | Tex. R. Evid. 703 | Daubert-type: Robinson/Kelly/Gammill |
| Utah | Utah R. Evid. 702 | Utah R. Evid. 703 | Utah-specific threshold reliability standard |
| Vermont | Vt. R. Evid. 702 | Vt. R. Evid. 703 | Daubert |
| Virginia | Va. R. Evid. 2:702 | Va. R. Evid. 2:703; Va. Code § 8.01-401.1 | Virginia-specific standard |
| Washington | Wash. ER 702 | ER 703 | Frye |
| West Virginia | W.Va. R. Evid. 702 | W.Va. R. Evid. 703 | Daubert-type for scientific testimony |
| Wisconsin | Wis. Stat. § 907.02 | § 907.03 | Daubert |
| Wyoming | Wyo. R. Evid. 702 | Wyo. R. Evid. 703 | Daubert/Kumho |
Michigan
Michigan Rules of Evidence 702 and 703 govern the admissibility of expert testimony and the factual basis upon which an expert may form an opinion.
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 proponent demonstrates to the court that it is more likely than not that:
(a) 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;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.”
Rule 703 Bases of an Expert’s Opinion Testimony
“An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. The facts or data must be in evidence—or, in the court’s discretion, be admitted in evidence later.”
Michigan courts have emphasized that MRE 702 requires the trial court to act as a gatekeeper and ensure that each aspect of an expert’s testimony, including the underlying data and the methodology used to draw conclusions from those data, is reliable [Gilbert v. Daimler Chrysler Corp., 470 Mich. 749, 779–82, 685 N.W.2d 391 (2004)]. The Michigan Supreme Court has likewise recognized that MRE 702 establishes prerequisites for the admission of expert testimony and requires scrutiny of the reliability of the expert’s methods and their application [People v. Kowalski, 492 Mich. 106, 120–21, 821 N.W.2d 14 (2012)].
With respect to MRE 703, the Michigan Supreme Court has explained that an expert’s opinion must be based on evidence introduced into the case rather than facts introduced solely through the expert’s hearsay testimony [People v. Fackelman, 489 Mich. 515, 534, 802 N.W.2d 552 (2011)]. An expert must therefore have a sound evidentiary basis for the conclusions offered [People v. Unger, 278 Mich. App. 210, 248, 749 N.W.2d 272 (2008)].
Responsive in Rapidly Emerging Situations
The PsychLaw team assists clients, both lawyers and non-lawyers, in legal matters in which the behavioral sciences and the law blend. Our team can respond immediately to rapidly emerging situations when time is of the essence and the specialized knowledge that our team carries is essential to the success of your case. We jump right into your case without disrupting the forward momentum. Our work for lawyers and non-lawyer clients covers a wide range:
Serving as expert witness in matters related to psychology, parental alienation, false allegations and state of mind issues and the law
Consulting on effective cross examination of expert witnesses
Jury selection consultation
Providing case assessments
Parental alienation actions, custody disputes and other family law matters
Sexual abuse cases, child-kidnapping cases and other criminal charges
Criminal defense cases where the defendant was falsely accused
Psychological abuse of a child caught in the middle of a loyalty conflict
Providing rebuttal expert testimony
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