CFC Legal Standards & Expert Witness Testimony 2 — Questions and Answers
Question 1: Under Federal Rule of Evidence 702, which factor does NOT determine the admissibility of expert testimony?
- The expert's testimony is based on sufficient facts or data
- The expert's fee arrangement with the retaining party (Correct answer)
- The testimony is the product of reliable principles and methods
- The expert has reliably applied the principles and methods to the facts
Correct answer: The expert's fee arrangement with the retaining party
FRE 702 focuses on methodology, data sufficiency, and application of principles — not on the expert's compensation arrangement.
Question 2: A forensic consultant is retained by the defense in a criminal case. The prosecutor subpoenas the consultant's work product. Under what doctrine may certain materials be protected?
- Physician-patient privilege
- Work product doctrine (Correct answer)
- Business records exception
- Public records privilege
Correct answer: Work product doctrine
The work product doctrine protects materials prepared in anticipation of litigation from opposing counsel's discovery requests.
Question 3: When an expert witness is asked during cross-examination about a learned treatise, which statement is accurate under FRE 803(18)?
- The treatise can be read into evidence but not admitted as an exhibit (Correct answer)
- The treatise is inadmissible hearsay and cannot be referenced
- The expert must have relied on the treatise during direct examination to use it
- Only treatises published within the last five years qualify
Correct answer: The treatise can be read into evidence but not admitted as an exhibit
Under FRE 803(18), learned treatises may be read into evidence as an exception to hearsay but are not admitted as exhibits.
Question 4: A Daubert challenge is filed against a forensic accountant's damages calculation. The judge's role during a Daubert hearing is best described as:
- Deciding which party's expert is more credible
- Acting as a gatekeeper to assess reliability of the methodology (Correct answer)
- Determining the weight the jury should give the testimony
- Evaluating the expert's professional credentials only
Correct answer: Acting as a gatekeeper to assess reliability of the methodology
The Supreme Court in Daubert v. Merrell Dow established the trial judge as a gatekeeper who screens expert testimony for methodological reliability.
Question 5: Which scenario best illustrates 'scope creep' that an expert witness must avoid?
- Providing opinions on matters outside one's disclosed area of expertise (Correct answer)
- Reviewing additional documents produced late in discovery
- Updating a damages calculation when new financial data becomes available
- Conferring with retaining counsel before finalizing a report
Correct answer: Providing opinions on matters outside one's disclosed area of expertise
Scope creep occurs when an expert renders opinions beyond the area of expertise for which they were retained and qualified.
Question 6: In a civil case, a forensic expert's report must be disclosed under FRCP 26(a)(2)(B). Which element is NOT required in that report?
- A complete statement of all opinions and the basis for them
- A list of all other cases in which the expert testified in the prior four years
- The expert's fee schedule for future anticipated testimony (Correct answer)
- All data or other information considered in forming the opinions
Correct answer: The expert's fee schedule for future anticipated testimony
FRCP 26(a)(2)(B) requires disclosure of compensation received, not a future fee schedule for anticipated testimony.
Question 7: When opposing counsel asks an expert witness a hypothetical question that omits key facts, the most appropriate professional response is to:
- Refuse to answer any hypothetical questions
- Answer as posed without noting the omission
- Note the missing facts and explain how they would affect the answer (Correct answer)
- Request a recess to consult with retaining counsel
Correct answer: Note the missing facts and explain how they would affect the answer
An expert maintains credibility and accuracy by identifying factual gaps in hypotheticals that would materially affect the opinion.
CFC Legal Standards & Expert Witness Testimony 2
Under Federal Rule of Evidence 702, which factor does NOT determine the admissibility of expert testimony?