TIPS TO IMPROVE VOIR DIRE AND PREVENT MISINFORMATION AND UNRELIABLE TESTIMONY IN COURT
Dr. Lorandos believes that in order to ensure that a proper voir dire[1] achieves its goal and results in excluding an unqualified expert, counsel should not take for granted the judge’s knowledge and understanding of the relevant law regarding the admission of experts. Accordingly, it is recommended that a brief to the court explaining the following elements of the court’s gatekeeping function be submitted to it prior to conducting voir dire:
The standard articulated in Daubert or the jurisdiction’s equivalent authority.[2]
The Court has gatekeeper duties to “ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.”[3]
That reliability requires a grounding in the methods and procedures of science.[4]
To give a reliable opinion, the proffered expert must know the data of the discipline.[5]
The proffered expert must demonstrate a valid connection to, and knowledge of, the pertinent facts.[6]
The proffered expert’s methods and opinion must comply with the ethical code of his profession.[7]
To aid attorneys in this effort, the Litigator’s Handbook of Forensic Medicine, Psychiatry & Psychology provides step-by-step guidance on how to use and challenge experts and ensure favorable rulings under Daubert, Kumho Tire, Frye, and other legal standards on expert testimony. Topics covered include the admissibility of expert evidence; direct and cross-examination of experts in forensic medicine, psychiatry, and psychology; statistics for lawyers; independent medical examinations; forensic autopsies; sexual abuse examinations; false memories; interrogative suggestibility; capacity to waive Miranda warnings; assessment of competence; malingering; involuntary commitment; neuropsychological and neurobehavioral evidence in tort cases; child custody and child protection issues; child sexual abuse interviews; professional standards; syndrome evidence; and violence risk assessment.
[1] Wolf Findings (4/24/15), supra note 201; Wolf Findings (7/20/16), supra note 205. Findings of Fact, Conclusions of Law and Order Lifting Seal, Wolf v. Wolf, No. DR-13-380CX ¶¶ 90-102 (Gallatin Co., Mont. Nov. 13, 2018) (available from this author).
[2] A more thorough treatment of each of these issues is set out in the sample in Appendix D, “Brief in Support of Motion to Conduct Extended Voir Dire.”
[3] Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 591-593 (1993). See also e.g., Gilbert v. DaimlerChrysler Corp., 685 N.W.2d 391, 409 (Mich. 2004); Wilson v. Phillips (4th Dist. 1999) 3 Cal.App.4th 250, 254; Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 447 (N.Y. 2006); Whirlpool Corp. v. Camacho, 298 S.W.3d 631, 637 Tex. 2009); Garibay v. Hemmat (2d Dist. 2008) 161 Cal.App.4th 735, 743; Brown v. County of Albany, 706 N.Y.S.2d 261 (N.Y. App. Div. 2000)
[4] Daubert, 509 U.S. at 589. See also e.g., Gilbert, 685 N.W.2d at 409; Wilson, 73 Cal.App.4th at 254; Parker, 7 N.Y.3d at 447; Whirlpool, 298 S.W.3d at 637.
[5] Daubert, 509 U.S. 589-590. See also e.g., Gilbert, 685 N.W.2d at 409; Wilson, 73 Cal.App.4th at 254; Parker, 7 N.Y.3d at 447; Whirlpool, 298 S.W.3d at 637
[6] Daubert, 509 U.S. 591-593. See also e.g., Gilbert, 685 N.W.2d at 409; Wilson, 73 Cal.App.4th at 254; Parker, 7 N.Y.3d at 447; Whirlpool, 298 S.W.3d at 637; Garibay, 161 Cal.App.4th at 743; Brown, supra note 237.
[7] Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147-149 (1999).
