Are Expert Reports Admissible at Trial?
Experts can be invaluable resources for courts or juries as they attempt to resolve the disputes in a case.
However, there are certain matters in which an expert report may not be admissible at trial.
Prosecutors must understand how to challenge expert reports, especially when dealing with forensic evidence.
Rule 26 of the Federal Rules of Civil Procedure
Rule 26 of the Federal Rules of Civil Procedure states that expert reports are admissible at trial. However, parties are required to disclose any expert information well in advance of trial date.
Unless otherwise provided in the disclosure, all information must be given in writing and served upon the other party or filed with the court. Disclosures must also be made at times and in the sequence that are ordered by the court.
Disclosures must also indicate that the information is subject to any applicable privilege or protection. A party can suspend their disclosure obligation if it can demonstrate good cause for withholding it.
This amendment seeks to address a pressing issue in discovery that has become prevalent in many States. It pertains to expert witnesses whom parties expect to call as trial witnesses and those retained or specially employed by them but who are not expected to testify at trial.
Rule 26(b) of the Federal Rules of Criminal Procedure
Rule 26(b) of the Federal Rules of Criminal Procedure sets out a series of broad disclosure requirements for experts. These declarations must be made at least 30 days before trial, unless other arrangements have been made by the court.
These provisions aim to avoid trial complications caused by failure to disclose information held by expert witnesses that may be largely or entirely inaccessible. This issue is especially acute when the case relies solely on experts, but it applies equally to cases with both complex and straightforward expert testimony.
Under the rule, parties must identify all information contained in a report prepared by an expert witness that may be used at trial. This must include a full statement of opinions to be expressed; any data or other materials considered by the witness when formulating these opinions; and any exhibits supporting these views.
Rule 26(c) of the Federal Rules of Evidence
Rule 26(c) provides that expert reports and other written communications from expert witnesses are admissible in court proceedings. It does not preclude courts from requiring disclosure of information beyond what this rule covers, through local rules, standard interrogatories approved by the court, or standing orders.
However, if an expert report contains privileged or protected information, that cannot be produced without also producing other non-privileged material. This is to prevent the court from disclosing privileged or protected details to third parties.
In addition, if a party fails to timely amend a response to an interrogatory, request for production, or admission request, they could face sanctions from the court. This may include an award of reasonable costs and attorney’s fees.
Rule 26(d) of the Federal Rules of Evidence
Rule 26(d) provides that expert reports or disclosures required by Rule 26(a)(2) may be admitted into evidence at trial unless the court determines otherwise. This rule was created to reduce redundancy in discovery processes and encourage attorneys to consider the relative costs of different methods for obtaining information.
However, there are exceptions. Rule 34(b)(2) allows parties to obtain disclosure of privileged or protected information for impeachment; and Rule 32 requires parties to designate which portions of depositions not recorded stenographically they intend to use at trial.
This amendment to Rule 26(d) is necessary due to the many trial issues created by untimely discovery of expert witnesses. These issues are especially acute in cases involving multiple experts, but can also arise when one expert testifies. This new provision seeks to address these issues and, consequently, improve the reliability of expert testimony.