In most states, the evidence code defines the process whereby a person's testimony may be admitted and how that testimony will be treated. In California, for example, the EC notes,
- "720. (a) A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Against the objection of a party, such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert."
- "721. (a) Subject to subdivision (b), a witness testifying as an expert may be cross-examined to the same extent as any other witness and, in addition, may be fully cross-examined as to (1) his or her qualifications, (2) the subject to which his or her expert testimony relates, and (3) the matter upon which his or her opinion is based and the reasons for his or her opinion."
There are many folks out there advertising themselves as "experts." For these folks, they've given themselves the title of "expert" for the purpose of marketing and helping their brand rise above the others in their field.
To be sure, only the Judge in a trial grants a person expert status. This status, as it relates to the testimony given, goes away once the person is finished with that trial. A person may give expert testimony in one trial, but not in another. If a person refers to themselves as an "expert," red flags should immediately go up.
Thus begins the process I call, Find the Charlatan. A charlatan is a person falsely claiming to have a special knowledge or skill; a fraud.
The common objections, at least in California, center around a witness' qualifications. "The trial court is not required to formally certify or qualify a witness as an expert. Evid. Code §§402, 801. Thus, it is unnecessary to “proffer” or “tender” the witness as an expert. Most judges, if asked to certify or qualify, will state merely that the witness is acceptable or may testify. This avoids giving the witness an imprimatur of undue credibility." (source) If, in checking on the witness' credentials, you find that a witness has improperly listed their testimony, that's another red flag. Remember, only the Judge may declare the witness an expert, and thus the testimony given as "expert testimony."
So how do these folks continue to get away with this false/misleading claim? No one checks or calls them on their activities.
- Ask for a CV. Make sure that their record of testimony properly segregates testimony into general / expert. If it doesn't ask specifics as to the testimony given and any objections.
- Get transcripts / reports from prior testimony. Does the opinion offered in your case track with what they've said in the past? Does their listed training and experience track with previously submitted information? If not, why not? Sometimes, folks will try to say that their Fine Arts degree has an "emphasis" in some scientific discipline. This is very rarely the case, and they're likely embellishing their credentials.
- Make sure that their training is actually training, not sitting in on a lecture. If they've offered training, make sure that they've trained people - not just presented topics as part of a lecture. Training peers or new employees is quite different from presenting information to a group of people who don't actually work in the discipline - a Bar association or a leadership conference for executives. If there was no syllabus or test involved, then it was likely an information session.
- If they rely upon their college degree for the authority behind their opinion - get their transcripts and check their claims. If they refuse to let you have their transcripts, then they're likely hiding something.
To put all of this into perspective, I've spent the week at LEVA's 2016 Training Conference. Some of the sessions are "training," some are "presentations." I presented information around redacting video footage from body worn cameras and in-car video, the technological and policy implications. Folks in my class weren't "trained" to redact footage. That's done at my Basic course in Henderson, or on a customer's site. Likewise for my presentation on image authentication. It's information, not training. If folks want training in image authentication, they can take the training course on that topic.
If you have a doubt about the person you wish to hire, there's likely a good reason. Google their name. Find out about them. Find out what others are saying about them. Ask questions of their peer groups. Find out if they've been discredited or had their testimony excluded in the past. Ask. Ask. Ask.