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					     DAUBERT/KELLY
Texas Forensic Science Seminar 2010
           Prepared by:
    Judge Cynthia Stevens Kent
           John Bradley
           Sam Bassett
     DAUBERT HEARINGS
• RULE 702/705 HEARINGS ON
  ADMISSIBILITY OF EXPERT
  TESTIMONY
• WHEN TO HEAR:
 – PRE-TRIAL EARLY OR LATE?
 – DURING TRIAL WHEN WITNESS IS
   AVAILABLE
 – DURING DAY OR AT EVENING BREAK?
     EXPERT TESTIMONY
• DAUBERT ISSUES
• TRIAL JUDGE IS THE GATEKEEPER
             JUDGES
• Experts are people who know a great deal about
  very little, and who go along learning more and
  more about less and less until they know
  practically everything about nothing.

• Lawyers, on the other hand, are people who know
  very little about many things, and who keep
  learning less and less about more and more until
  they know practically nothing about everything.

• Judges are people who start out knowing
  everything about everything, but end up knowing
  nothing about anything, due to their constant
  association with experts and lawyers.
          FRYE TEST
• FRYE TEST OF “GENERAL
  ACCEPTANCE” IS NO LONGER THE
  RULE FOR DETERMINING
  ADMISSIBILITY OF RULE 702
  EVIDENCE
           RULE 702
• TRIAL COURT JUDGE WILL BE
  GATEKEEPER AND DETERMINE IF THE
  PROPONENT OF THE EVIDENCE
  DEMONSTRATES:
• RELIABILITY
• RELEVANCE
         RELIABILITY
• UNDERLYING THEORY IS VALID
• TECHNIQUE APPLYING THE THEORY
  IS VALID
• TECHNIQUE WAS PROPERLY APPLIED
  ON THE OCCASION IN QUESTION
           FACTORS
• EXTENT TO WHICH THEORY IS
  ACCEPTED AS VALID BY RELEVANT
  SCIENTIFIC COMMUNITY
• QUALIFICATIONS OF EXPERT
• EXISTENCE OF LITERATURE
  SUPPORTING OR REJECTING
  THEORY
   FACTORS - CONTINUED
• POTENTIAL RATE OF ERROR
• AVAILABILITY OF OTHER EXPERTS TO
  TEST TECHNIQUE
• CLARITY OF EXPLAINING THIS
  SCIENCE
• EXPERIENCE AND SKILL OF PERSON
  WHO APPLIED TECHNIQUE
          T.R.E. 701
    LAY OPINION TESTIONY
• A NON EXPERT MAY GIVE AN OPINION
  IF IT IS RATIONALLY BASED ON
  PERSONAL KNOWLEDGE AND IT IS
  HELPFUL TO A CLEAR
  UNDERSTANDING OF THE WITNESSES
  TESTIMONY OR A FACT IN ISSUE
  (EVEN ULTIMATE ISSUE)
              701 TEST
• Opinion must be:
1. Based on personal knowledge (TRE 602)
2. Rational connection between opinion and
   facts upon which it is based (nexus)
3. Must be helpful in understanding the
   testimony or determining a fact in issue
   (relevant)
4. Not based upon knowledge within scope
   of TRE 702 (amendment)
             Lay Opinion
• TRE 701 is a significant departure from
  the American common law which
  precluded lay witnesses from giving
  opinion testimony
• Evolution from recent common law to TRE
  701: Courts tried to draw distinctions
  between fact and opinion inferences or
  conclusions. Drafters thought this was too
  difficult or contrived.
         PURPOSE OF 701
• Common law prohibition on lay opinion
  testimony was based partly on the
  assumption that facts and opinions are
  easily distinguishable and partly on the
  notion that jurors are as well equipped to
  draw inferences from the facts supplied by
  a lay witness as is the witness.
• TRE 701 abandons the common law’s
  nominally rigid approach to lay testimony
         LAY VS. EXPERT
• The last clause of 701 precludes litigants
  from offering expert testimony under the
  guise of lay opinion testimony as a means
  of evading the discovery and reliability
  requirements associated with expert
  testimony.
• TRE 701 now makes it clear that there is
  no overlap between 701 and 702.
 Opinions must be rationally based
      on witness’s perception
• Two elements required:
  – 1.    Personal knowledge requirement of
          TRE 602
  – 2.    Mandate that the opinion must be one
          that a reasonable person could draw
          from the underlying facts.
  These requirements eliminate lay opinions
    based on hearsay, speculation, and irrational
    reasoning.
    Helpful Requirements Test
1. The extent to which the testimony goes to the
   heart of the case.
2. The amount of factual matter subsumed in the
   opinion
3. The ability or inability of the witness to convey
   the information in the form of specific facts.
4. The extent to which the jury is equally well-
   positioned to draw the inferences from the
   underlying data
5. The need for the testimony.
       TRE 704: Opinion on
         Ultimate Issue
• Testimony in the form of an opinion or
  inference otherwise admissible is not
  objectionable because it embraces an
  ultimate issue to be decided by the trier of
  fact except in a criminal case where
  mental state is an element of the crime
  charged.
 TRE 704 (Continued)

• Removes the court from determining whether an
  opinion goes to the ultimate issue and eliminates
  “invades the province of the jury” and “ultimate
  issue” objections.
• Need to do a TRE 701 or TRE 702 and TRE 403
  analysis to determine admissibility. Court still
  permitted to exclude lay or expert opinions on
  issues of “fault,” “negligence” or “guilt” due to fact
  that opinion is not “helpful” or unnecessary per
  TRE 701 or TRE 702, and TRE 403
    Opinions held inadmissible
• An expert’s opinion about accused’s guilt. U.S.
  v. Alonso, 48 F.3d 1536 (9th Cir. 1995)
• Expert may not testify as to an accused mental
  state or condition that constitutes an element of
  a crime charged or a defense to the crime
  charged. See U.S. v. Bennett, 161 F.3d 171 (3
  Cir. 1998)
• But may testify that accused suffered from
  mental disease or defect to the describe
  characteristics and effects of such disease or
  defect.
         Expert Witnesses:
            Overview
•   Frye test: “General acceptance”
•   TRE 702: Frye + assist standard
•   Daubert Test: Reliability + relevance
•   Daubert progeny
•   TRE 703 Bases of expert opinion
•   TRE 704 Opinion on ultimate issue
•   TRE 705 Disclosure of data or facts
• TRE 706 Court appointed experts
        ROLE OF THE EXPERT
         *The New WIGMORE
• The purpose of expert testimony is to provide
  the trier of fact useful, relevant information.

• Expert need not be a member of a learned
  profession.

• Expert have wide range of credentials and testify
  regarding a tremendous variety of subjects
  based on their skills, training, education or
  experience.
   METHOD OF QUESTIONS
1. Experts may be questioned about general
   principles that would advance the jury’s
   understanding of the facts in dispute.
2. Experts may be asked to offer their own
   opinions based on their firsthand investigations
   and to describe certain observations they have
   made aided by their expertise.
3. Experts may be asked to provide opinions
   based on facts specific to the case but outside
   their personal knowledge.
    HOW FACTS PROVIDED
• Facts can be supplied by the testimony of
  ordinary witnesses and known to the
  expert because the expert was present
  during their testimony.
• Alternatively, the expert may be asked to
  state an opinion based on hypothetical
  questions incorporating a party’s version
  of the facts as testified to by these other
  witnesses.
    Facts not in Evidence

• Often experts rely on
  case-specific information
  that is not itself in
  evidence.
      POTENTIAL DANGERS
• Experts are provided exemptions from rules to
  which other witnesses must adhere.
• Experts are not bound by the requirement that
  testimony be based on personal knowledge.
• Experts may serve as conduits for hearsay so
  long as others in the same field reasonably rely
  on such hearsay.
• Experts have been largely immune from perjury
  charges. BUT NOT ALWAYS.
      Experts: Frye Test
• Frye v. United States 293 F. 1013 (D.C.
  Cir. 1923)
• “General acceptance” test
• The proponent must show that the theory
  and scientific evidence have been
  generally accepted within the relevant
  scientific community
                FRYE
          *The New Wigmore
• Scrutiny of scientific as oppose to other
  forms of expert testimony began in 1923
  with the FRYE standard of general
  acceptance.
          FACTS OF FRYE
• James Frye was charged with murder. He
  sought to introduce testimony of
  psychologist who had administered a
  systolic blood pressure test to the
  defendant. The “expert” wanted to testify
  that the test revealed that Frye was truthful
  when he denied committing the murders.
• *Forerunner of lie detector test.
            Frye Holdings
• Court ruled that the technique was too
  speculative. It found that other
  psychologists had yet to accept the claim
  of verifying honesty by measuring blood
  pressure.
• Subject of expert testimony must have
  gained general acceptance in the
  particular field to which it belongs.
                      Frye Results
• General acceptance test tended to screen out evidence.
  In a variety of cases it resulted in excluding the following
  types of evidence:
   –   Polygraph evidence
   –   Hypnotic and drug induced testimony
   –   Voice stress analysis
   –   Voice spectrograms
   –   Infrared sensing of aircraft
   –   Blood alcohol tests
   –   Polarized light microscopy
   –   Psychological profiles of battered women
   –   Post Traumatic Stress disorder as indicating rape
   –   Ear prints
      Expert’s Opinion of Frye
• General acceptance standard never was
  popular with evidence scholars.
• Frye failed to provide uniformity in court’s
  rulings on admissibility.
• Frye shifted the evaluation of expert
  testimony reliability by the judge and jury
  to the general acceptance of such expert
  testimony within a certain field of study.
 TRE 702: Testimony by
       Experts
• TRE 702: If scientific, technical, or other
  specialized knowledge will assist the
  trier of fact to understand the evidence
  or to determine a fact in issue, a witness
  qualified as an expert by knowledge,
  skill, experience, training, or education,
  may testify thereto in the form of an
  opinion or otherwise.
                    Daubert
• 1993 U.S. case Daubert v. Merrell Dow Pharm,
  Inc. 509 U.S. 579 (1993) held that the FRYE test
  did not survive the promulgation of the F.R.E.
  702.
• The Supreme Court emphasized that the
  evidentiary rules provided for a flexible inquiry
  into the scientific validity of principles made the
  basis of an expert’s opinion, but that the court
  must make the preliminary determination of the
  admissibility of such expert testimony.
                  Daubert
• Trial Court under TRE 702 must make a
  preliminary assessment of whether the
  reasoning or methodology underlying the
  expert testimony is “scientifically valid and
  of whether that reasoning or methodology
  properly can be applied to the facts in
  issue.”
                      Daubert
• Trial judges are gatekeepers of expert testimony
  admissibility in both criminal and civil cases.
• TRE 702 and TRE 104 requires that the court
  must determine whether the proponent of the
  proffered expert testimony has demonstrated by
  clear and convincing evidence that the expert
  evidence is:
  – 1.     Reliable
  – 2.     Relevant
                 Daubert
•  To be reliable, the proponent must prove
   that:
1. The underlying scientific theory is valid,
2. The technique applying the theory is
   valid, and
3. The technique was properly applied on
   the occasion in question.
                    Daubert
•    In determining reliability the court may
     consider factors, non-exclusive list:
    1. Extent to which the underlying scientific
       theory and technique are accepted as valid
       by the relevant scientific community, if such
       a community can be ascertained.
    2. The qualifications of the testifying expert
    3. Existence of literature supporting or rejecting
       the underlying scientific theory and
       technique
                     Daubert
•    In determining reliability the court may
     consider factors, non-exclusive list-
     (continuing):
4.   Potential rate of error of the technique
5.   The availability of other experts to test and
     evaluate the technique;
6.   The clarity with which the underlying scientific
     theory and technique can be explained to the
     court.
7.   The experience and skill of the person who
     applied the technique on the occasion in
     question.
                 Daubert
•   If the Court determines the evidence is
    RELIABLE - then the trial judge must
    then determine if the evidence is
    RELEVANT to the determination of a fact
    issue which if of consequence in the
    case.
•   Then the balancing test must be applied.
                 Daubert
•   Daubert envisioned a flexible inquiry
    focusing solely on the underlying
    principles and methodology not on the
    conclusions they generate.
•   Judges do not have to be trained in
    science to evaluate the reliability of a
    theory or technique and are capable of
    understanding and evaluating scientific
    reliability.
                 Daubert
•   Judges have limited formal training or
    practical experience in the use and
    evaluation of scientific methodology.
•   “Daubert Readiness of Texas
    Judiciary…” 6 Tex. Wesleyan L.R. 1 (Fall
    1999) – Authored by Yours Truly
          TRE 702
• Criteria for admissibility:
  – Will the specialized knowledge assist the
    trier of fact?
  – What is the evidence?(Fingerprint, DNA,
    toxicology, microanalysis)
  – What is the issue?
  – What is the state of the art?
  – Although admissible, should it be excluded
    under TRE 403
  – Is the witness qualified:
     • Knowledge/ skill/ experience/ training/education
The Evolution of TRE 702
• The judicial response to TRE 702 and
  Frye.
• Ex. Many states struggled and defined
  general acceptance prong of Frye to
  include such things as peer review,
  publication, independent validation and
  testing, etc…. and tried to reconcile the
  two competing standards.
• The “reliability” standard: United States v.
  Downing, 753 F.2d.1 224( 3rd Cir. 1985)
        Experts: Daubert
• Daubert v. Merrell Dow, 113 S.Ct. 2786 (1993).
  Supreme Court held that the rules do not give
  any indication that “general acceptance” is a
  necessary precondition to the admissibility of
  scientific evidence. “General acceptance” is a
  factor but is not dispositive.
            Experts: Daubert
              (Continued)
• Reliability:
   –   can be tested
   –   peer review & publication
   –   known or potential error rate
   –   standards
   –   wide spread acceptance
• NEW FORMULA: QUALIFICATIONS +
  (RELEVANCE AND RELIABILITY) =
  ADMISSIBILITY
  Split of Authority in the
      Federal Circuits
• Some Federal Circuit Courts of Appeal
  limited Daubert to novel scientific expert
  opinion testimony others gave it broad
  application.
Daubert Progeny: Federal

•   Daubert II (added new criteria on remand)
•   Lacobelli Const. V. Monroe ( 3rd Cir. limited scope)
•   Berry v. Detroit ( 6th Cir. expanded view)
•   U.S. v. Bonds (6th Cir. admissible under Frye and Daubert)
•   U.S. v. Starzecpyzel ( DC NY limited view but let in because Daubert
    didn’t apply to other parts of the rule)
•   In re Paoli R.R. Yard PCB litigation( 10th Cir added new criteria)
•   U.S. v. Posado (5th Cir. ought to reconsider polygraph under new
    standard)
•   U.S. v. Scheffer ( Daubert/ polygraph/ MRE 707)
•   Compton v. Subaru (10th Cir. Daubert didn’t apply to design defect
    case)
•   U.S. v. Sinclair (limited view)
•   Ninth Circuit Split: Southland Sod (broad)/ Webb(limited)
   TRE 703: Bases of Opinion
     Testimony by Experts

• The bases of opinion testimony may include
  hearsay. “ If a type reasonably relied upon by
  experts in the particular field in forming opinions
  or inferences upon the subject, the facts or data
  need not be admissible in evidence.”
• See also TRE 803 (18) Learned Treatise
• Significant departure from the common law. Under
  common law could not rely on inadmissible
  hearsay. TRE 703 permits expert to rely on
  hearsay.
    TRE 703 (continued)
• Third great hearsay exception
     703 – Bases of Opinions
• Facts within knowledge
• Facts presented to expert at trial
• Facts presented to expert out of court, not
  in evidence, but reasonably relied upon by
  experts in the field.
  Otherwise Inadmissible facts
• May be considered in experts opinion
• Before the court allows disclosure of such
  facts to the jury, the court must determine
  that their probative value substantially
  outweighs their prejudicial effect. Just
  because the expert may use this
  information does not always mean that
  those inadmissible underlying facts are
  admissible through the expert’s testimony.
   Opinions on Prohibited Data
• Data obtained in violation of law or
  constitution cannot be the basis of expert
  opinion. See. Estelle v. Smith, 451 U.S.
  454 (1981)
• Even in civil cases. See Robertson v.
  Union Pacific RR Co. 964 F.2d 1433 (8th
  Cir. 1992)
  MY RECOMMENDATIONS
   NOT INSTRUCTIONS
• JUST ‘CAUSE YOU’RE
  FOLLOWING A WELL-
  MARKED TRIAL . . . DON’T
  MEAN THAT WHOEVER
  MADE IT KNEW WHERE
  THEY WERE GOIN’.
      » Texas Bix Bender
        TRE 705: Disclosure of Facts
         or Data Underlying Expert
                  Opinion

• An expert does not need to disclose underlying
  facts or data before giving an opinion or the
  reasons for that opinion. The expert may be
  required to disclose underlying facts and data on
  cross -examination.
• Issue:Does the hypothetical question survive in
  light of 705 and 703?
  ADMISSION OF UNDERLYING
           FACTS
• If facts are admissible then allow
  disclosure with no limiting instruction
• If facts are inadmissible they possess
  probative value only if they may help the
  jury to evaluate the expert’s opinions.
  Court has several opinions in this
  situation:
INADMISSIBLE FACTS OPTIONS
1. Allow expert to disclose the inadmissible
   underlying facts and then give a limiting
   instruction to the jury. See. Brennan v..
   Reinhardt Institutional Foods 211 F.3d
   449 (8th Cir. 2000).
INADMISSIBLE FACTS OPTIONS
2. Restrict the expert to a description of the
   types of underlying data upon which he
   relied, but not allow the expert to give
   any details. See Marsee v. U.S.
   Tobacco Co. 866 F.2d 319 (10th Cir.
   1989)
INADMISSIBLE FACTS OPTIONS
3. Prohibit any mention of the otherwise
   inadmissible material.

   Opposing counsel may not use cross-
   examination as a means of bringing
   inadmissible hearsay or opinions before the
   jury. Thus counsel may not bring before the
   jury inadmissible hearsay reports or data to
   impeach testifying expert if expert did not rely
   on material in question.
TRE 706: Court Appointed
        Experts

• TRE 706 permits court to appoint experts.
  Make certain you follow procedure set
  forth in the rule otherwise it might result in
  disqualification due to an ex parte contact.
                        706
• Procedure for appointment
  – Court may appoint sua sponte or on motion of party
  – Notice to parties is required
  – Court expert may be deposed
  – Either party may call court appointed expert
  – Compensation in amount allowed by court
  – Court may authorize disclosure that this is court
    expert
  – Parties may still have their own experts
•LET’S LOOK AT
 SOME SPECIFIC
 TYPES OF
 EVIDENCE UNDER
 FRE 702
        Physical and Chemical
           Instrumentation
• Tests derived from the physical and
  biological sciences and requiring
  sophisticated laboratory instruments are
  uniformly treated as meriting special
  scrutiny.
    Mathematical and Statistical
             Models
• Although not involving sophisticated
  laboratory instruments, mathematical and
  statistical models can be inscrutable and
  impressive to those not schooled in these
  areas and might seem to qualify for
  heightened scrutiny of TRE 702.
  Dog Sniff Evidence - Tracking
• No strict standard of either Frye or Daubert
  needed in dog tracking evidence. See Brooks v.
  People, 975 P.2d 1105 (Colo. 1999).
• Use general standards for expert testimony.
  See Winston v. State, 78 S.W.3d 522 (Tex.Ct.
  App. 2002)
• Special scrutiny when used as substantive proof
  of an accelerant in a fire.. See State v Schultz,
  58 P.3d 879 (Utah Ct. App. 2002)
       Tests for Drunkeness
• Blood samples chemical analysis: look to
  proper laboratory procedures being
  followed and sample correctly obtained
  and preserved then reliable estimates for
  BAC can be proven. Extrapolations back
  to time of driving is more complex. Breath
  tests are even more challenging but the
  scientific cautions does not make blood
  and breath test inadmissible.
         Drunkness Testing
• Mosiac of laws and rules for testing and
  admissibility of testing across the country
  which are superimposed on the more
  general evidence code or common law
  rules.
 Blood, Tissue and DNA Types
• Many of these tests have gained such
  scientific acceptance that the courts may
  take judicial notice of their scientific
  acceptance and reliability.
• For some time there was considerable
  debate in court about the admission of
  DNA evidence.
                  DNA
• 99.9 percent of the DNA sequence in any
  two people is identical. DNA testing is
  looking to detect the relatively rare
  stretches of DNA called alleles that vary
  among individuals. Various procedures for
  this.
• First decade of DNA testing used typing
  procedure RFLP (restriction fragment
  length polymorphism)
                   DNA
• Following the initial wave of acceptance of
  RFLP testing the defendants pointed to
  problems of controlling the experimental
  conditions of analysis and of interpreting
  the results. Courts became more critical in
  their scrutiny of this evidence but still it
  was generally admitted.
                     DNA
• The attack on DNA profiling lead to cases where
  the courts held that estimates of the probability
  of a coincidentally matching VNTR (variable
  number of tandem repeats) were inadmissible.
• More research was done and the National
  Academy of Sciences in 1996 concluded that the
  usual method of estimating frequencies of VNTR
  profiles in broad racial groups was sound. Court
  responded with general admissibility.
                   DNA
• PCR (polymerase chain reaction) – based
  testing, small portions of DNA molecules
  are amplified by heating and cooling with
  an emzyme called DNA polymerase.
  There is general court acceptance that the
  more commonly used PCR-based
  procedures satisfy TRE 702 standards.
• This is the current status of DNA testing.
                   DNA
• Started as a fertile area of 702 litigation but
  has now settled down to a reliable expert area
  based on good scientific methodology.
              Shoeprints
• This type of expert testimony is generally
  accepted. See U.S. v. Ferri, 778 F.2d 985
  (1985) cert. denied.
              Fingerprints
• Generally admissible.
• Techniques are generally accepted.
• Look to method of extraction, taking of
  known sample.
• Computer analyzed
              Handwriting
• Generally accepted.
• But I suggest you look at this for TRE 702
  consideration
TYPES OF EXPERTS
        • Psychiatric Experts
        • Use is limited only by
          imagination

        • Psychological Experts
        • You can find one for
          any opinion but
          generally accepted
TYPES OF EXPERTS
       • Chemist
       • Look to the specifics of
         the study.
       • Porter v. Whitehall Lab.
         9 F.3d 607 (7th Cir.
         1998) Theory linking
         ingestion of ibuprofen
         to renal failure was
         rejected.
PATHOLOGIST
     • Jackson v. State 992
       S.W.2d 469
       (Tex.Crim.App. 1999)
     • and Rey v. State, Id.
     • Pathologist in capital
       case which the
       mechanism of death
       was a significant
       factor.
DRUG EXPERT
     • Look at scientific
       methodology
         POLYGRAPH
• Courts generally rejected polygraph
  evidence. There was a number of courts
  who took a fresh look at the evidentiary
  value of the most commonly used polygraph
  tests.
• However there is a widespread and strongly
  rooted reluctance to permit polygraph
  evidence in that the technique is not
  generally accepted in the scientific
  community as reliable.
         POLOYGRAPH
• Generally this evidence is excluded as it will
  not aid the jury because the credibility of a
  witness is susceptible to resolution without
  expert testimony. This area invades the
  province of the jury.

• However there is limited acceptance based
  on stipulation or for impeachment or
  corroboration in some jurisdictions.
         POLOYGRAPH
• U.S. v. Posado, 57 F.3d 428 (5th Cir. 1995)
  rejected a per se rule of exclusion.
• U.S. v. Cordoba, 194 F.3d 1053 (9th Cir.
  1999) affirmed finding of unreliability.
• U.S. v. Prince-Oyibo, 320 F.3d 494 (4th Cir.
  2003) affirmed per se rule of inadmissibility.

• LOOK TO YOUR STATE STATUTES
         POLOYGRAPH
• Jackson v. State
• 992 S.W.2d 449
• Tex.Crim.App. 1999

• Defendant not entitled to assistance of state
  funded polygraph examiner - No consensus
  that polygraph evidence is reliable or
  admissible.
                Hypnosis
• Court are most reluctant to admit this type
  of evidence.
IDENTIFICATION
     • Eye witness identification
       experts are generally
       excluded. Invades
       province of jury.

     • See U.S. v. Langan, 263
       F.3d 613 (6th Cir. 2001)
GANG ASSOCIATION
        • Might be an area for
          consideration if a
          significant factor in
          the State’s case and
          they have a “gang
          association” expert.
   ACCIDENT
RECONSTRUCTION
       • Look carefully at
         qualifications and
         methodology
    EXPERTS ALLOWED IN
    OTHER JURISDICTIONS
•   Blood
•   Cardiology
•   Psychiatrist
•   Dental
•   Drug Analysis
•   Intoxication
•   Electroencephalograph
    EXPERTS ALLOWED IN
    OTHER JURISDICTIONS
•   Fingerprint
•   Firearms
•   Hypnosis
•   Jury selection (not in Texas)
•   Neurologist
•   Pathologist
•   Questioned documents
  EXPERTS ALLOWED IN
  OTHER JURISDICTIONS
• Serologist
• Statistics and Demography
       Grounds for finding lack of
        reliability or helpfulness
•   Lack of relevance
•   Expert testimony not needed
•   Based on speculative or incomplete data
•   Questionable theories
•   Too conjectural
•   Conclusory
•   Too great gap between data and opinion
•   Beyond expertise
            NEW AREAS
• What do you think?

• Look at the evidence the state is
  presenting and consider what experts
  would be HELPFUL

				
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