That would encroach into the realm of expert testimony.Īdditionally, the amount of compensation you can receive for providing fact witness testimony is limited and substantially lower than an expert witness can, and should, charge.īlack’s Law Dictionary, 6th edition, defines “expert witness” as: However, you are not to explain the reasoning behind the concluded value. You may state the concluded value in the appraisal. As a fact witness, you may describe an appraisal that has been performed. There are two main points to remember about a fact witness:Ī fact witness is not permitted to express an opinion beyond the limitations in Rule 701 while testifying.Ĭompensation for a fact witness is minimal and often set by statute or by the court.Ī fact witness testifies to just that: the facts that relate to the case. If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. However, the Federal Rules of Evidence addresses what a “fact witness” can do in Rule 701: In fact, Black’s Law Dictionary, the definitive authority in legal definitions, does not have a separate entry for this term. There is no formal definition of a fact witness. One who is called to testify before a court… One who testifies to what he has seen, heard, or otherwise observed.Ī fact witness is one who testifies only to that of which he or she has firsthand knowledge and who describes only facts (as opposed to expressing opinions). In general, one who, being present, personally sees or perceives a thing a beholder, spectator, or eyewitness. One has lower liability and responsibility, and the other has greater financial reward.īlack’s Law Dictionary, 6th edition, defines a “fact witness” as: If you are called to testify as an appraiser, it’s important to determine at the time of the request which of the two types you will be: fact witness or expert witness. When a real estate appraiser is called to testify in a court, it could be as one of two types of witnesses. 137 (1999), the Supreme Court further clarified that the Daubert factors may apply to non-scientific testimony, meaning "the testimony of engineers and other experts who are not scientists.By Levowebdevelopment Fact Witness vs. The standard of review for this inquiry is the abuse of discretion standard. 136 (1997), the Supreme Court clarified Daubert, holding that an appellate court may still review a trial court's decision to admit or exclude expert testimony. In the federal court system, it replaced the Frye standard, which is still used in some states. The Daubert standard is the test currently used in the federal courts and some state courts. Under the Daubert standard, the factors that may be considered in determining whether the methodology is valid are: (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. Merrell Dow Pharmaceuticals Inc., 509 U.S. This standard comes from the Supreme Court case, Daubert v. It must also be noted that the courts have held that the Daubert standard governing admissibility of expert testimony is procedural and, thus, applies retroactively. The standard is applied after a Daubert motion to strike, a motion in limine, is filed before or during trial to exclude the presentation of unqualified evidence to the jury. The Daubert standard is the standard used by a trial judge to assess whether an expert witness’s scientific testimony is based on scientifically valid reasoning which can properly be applied to the facts at issue.
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