Thank you. This is exactly my point as well. Admittedly, I didn't realize it was Othram last night. I just heard "start up" and didn't know that Othram was still considered a start up, so I figured it was someone newer on the scene. But that said, my questions stand. Othram has done great work, but I absolutely believe that a fair line of questioning can lead to the above. I'm curious what the answers are.
The question whether an expert's testimony can be admitted into evidence - in whole or in part - is always a good one, and will certainly be raised by BK's defense team with respect to many, if not all, prosecution experts. I cannot begin to assess the outcome under the applicable standards, without much more information than we have.
In 1993, the U.S. Supreme Court established a new standard under which Federal judges act as gatekeepers to determine in advance of trial the admissibility of expert testimony. The case, Daubert v. Merrill Dow Pharmaceuticals, Inc.
requires that the judge determine:
(1) whether the theory or technique in question can be and has been tested;
(2) whether it has been subjected to peer review and publication;
(3) its known or potential error rate;
(4)the existence and maintenance of standards controlling its operation; and
(5) whether it has attracted widespread acceptance within a relevant scientific community.
The Federal Rules of Evidence were amended to incorporate the Supreme Court's mandate, but the rule reads a bit differently:
Federal Rules of Evidence
Rule 702: Testimony of 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:
(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 has reliably applied the principles and methods to the facts of the case.
standard replaced an earlier, more general one, established a century ago in Frye v. United States
(1923). A court using the Frye
standard must decide only whether the methodologies used by the expert witness follow the generally accepted practices of specialists in that field.
But according to a company that trains expert witnesses
"The state of Idaho does not follow either the Daubert or Frye test for the admissibility of expert witness testimony. Clair v. Clair
, 281 P.3d 115 (Idaho 2012). Instead, Idaho follows its Rule of Evidence, Rule 702. Id. This statute states that an expert can testify regarding scientific or technical methods if the court finds the expert to be qualified by its “knowledge, skill, experience, training, or education.” I.R.E., Rule 702 (1985). For an expert to attain the necessary “knowledge, skill, experience, training, or education” it does not have to have formal training. Id. However, the witness must have “practical experience or special knowledge” within the area it is testifying in. Clair, 281 P.3d 115. It is up to the party offering the expert to establish that the expert is qualified to be an expert in the area it is to testify to. Id."
Here is I.R.E. Rule 702
"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 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."
The Idaho rule seems to grant very broad discretion to the judge, and IMO could produce a wide variety of outcomes. But in the only case I found via a quick Google search, the judge was fairly restrictive. See, Idaho District Court Affirms Its Role as the Gatekeeper of Expert Testimony