Drug Induced Homicide Defense Toolkit
2. Ask for a Daubert or Frye hearing to challenge the state expert’s “but-for” testimony The expert witness admissibility requirement in Federal Rule of Evidence 702,91 as expounded upon by Daubert v. Merrill Dow Pharm., Inc.,92 requires that experts offer some kind of specialized knowledge, that their testimony be based on sufficient facts or data, and that it be the product of reliable methodology that has been properly applied to the present case.93 Daubert requires trial judges in both civil and criminal proceedings to determine “whether the reasoning or methodology underlying the testimony is scientifically valid . . . .”94 Consider asking the court for a Daubert hearing to challenge the state expert’s finding that the distributed drug is the but-for cause of the decedent’s death. Useful queries address underlying health conditions, herbal supplements, the toxicology report
91
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.
Fed. R. Evid. 702. 92
509 U.S. 579 (1993).
93
509 U.S. 579 (1993).
94
509 U.S. at 592–93 (1993).
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