Are there experts in your case?
What is their area of expertise?
Have their theories and opinions been tied to the facts and medical records of the case??
Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.
New Jersey Supreme court announces Daubert factors to be used by the trial courts as the ‘gate keepers’ in determining the admissibility of an expert. In respect of the gatekeeping role, the Court emphasizes that it expects the trial court to assess both the methodology used by the expert to arrive at an opinion and the underlying data used in the formation of the opinion. There is not much light between New Jersey’s standard and that which has developed in the federal sphere under Daubert’s initial instruction. Importantly, Daubert identified a non-exhaustive list of factors for courts to consider using, if helpful. See 509 U.S. at 593-95.
Distilled, the general factors identified as perhaps pertinent for consideration, but not dispositive or exhaustive, are:
- Whether the scientific theory can be, or at any time has been, tested;
- Whether the scientific theory has been subjected to peer review and publication, noting that publication is one form of peer review but is not a “sine qua non”;
- Whether there is any known or potential rate of error and whether there exist any standards for maintaining or controlling the technique’s operation; and
- Whether there does exist a general acceptance in the scientific community about the scientific theory.
That last consideration — general acceptance in the scientific community — continues to have a bearing. The Court adopts the use of the Daubert factors but stops short of declaring New Jersey a “Daubert jurisdiction.” First, to date New Jersey retains the general acceptance test for reliability in criminal matters. Second, while the factors are helpful, and while individual cases may be persuasive in appropriate settings, there are discordant views about the gatekeeping role among Daubert jurisdictions. The Court’s view of proper gatekeeping in a methodology-based approach to reliability for expert scientific testimony requires the proponent to demonstrate that the expert applies his or her scientifically recognized methodology in the way that others in the field practice the methodology. That approach was employed by the trial court here. (pp. 79-85)