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LEGAL ISSUES: Testifying as an ExpertA qualified physician may also be called to testify about cases in which he or she has played no prior role. The medical provider is then called as an expert witness. For instance, an experienced physician may provide expert testimony to explain how a sexually abused child could have normal physical findings upon examination. Qualified experts are allowed to testify regarding matters that would be outside the normal scope of knowledge and experience of the judge or jury. Most states have adopted rules similar to those used in federal courts:
Qualifications of an Expert Witness 
Before allowing a medical provider to testify as an expert, the judge will determine whether the individual possesses the requisite knowledge, skill, experience, training, or education to assist the jury. One need not be nationally recognized, an author, or a prolific speaker on the subject to be an expert. A medical provider who treats abused children should, however, be able to convince a judge and jury that he or she possesses a combination of training, experience, and expertise to provide reliable information about child abuse that will be helpful to them in determining the truth.
As a witness, however, you must always resist testifying beyond the limits of your expertise. An attorney, even a judge, may ask you questions related to your testimony but about which you are truly not an expert. While few witnesses would intend to testify as an expert when they clearly are not, it is easier than one might think to slip into this error. Testifying is stressful. Being an expert can be flattering. It is difficult for many to say "I don't know" or "That is beyond my area of expertise." Giving a professional opinion beyond one's area of expertise is a clear violation of professional ethics.
In order to be admissible, expert testimony must also be reliable and based on sound scientific principle. In cases in which the expert is basing his or her opinion on new scientific theory of doctrine, the most frequently used standard to determine admissibility was set forth by the United States Court of Appeals in 1923 in Frye v. the United States. The Frye test generally requires that the scientific foundation for an opinion must be generally accepted in its relevant scientific field. In 1993, the United States Supreme Court adopted a relevance standard in Daubert v. Merrell Dow Pharmaceuticals applicable to federal courts, although many state courts have adopted it. Under the Daubert principle, the court also considers the reliability of the scientific principles touted. Factors include whether the principle has been tested, the accuracy of results, whether standards for application of the principle exist, whether analysis is subjective or objective, whether the principle has been peer reviewed, and whether it is generally accepted (Frye) and consistent with proven modes of analysis. When disputed, the determination is made by the judge after conducting a hearing on the issues. Not all states use the same standard.
Experts are not allowed, however, to replace the determination of the judge or jury with their opinion. In criminal cases, experts are not allowed to testify, for example, that a victim or witness is telling the truth. A medical expert may give an opinion that a child's injuries could not have resulted from a fall, for instance, but may not give an opinion that a mother who stated a child fell, in fact, abused the child. Courts may vary in their determination of when an expert witness has gone too far. In preparing to testify, clarify this issue with counsel.
Opinion testimony goes beyond recounting what a person actually saw or heard. Courts typically apply the standard of reasonable certainty to an expert's opinion. The expert witness need not be absolutely certain; nor may the expert testify as to mere speculation. Medical expert witnesses are characteristically asked if their opinions are based on a "reasonable degree of medical certainty." Expert witnesses may rely on their observations and experiences in their practice, medical literature, training, laboratory and radiological exams, histories, physical examination, and the like to formulate their opinions. Hypothetical questions may also be posed to an expert. Expert testimony is often used to educate the judge and jury on principles that may be unknown to them. For example, many people are not aware that in cases of child sexual abuse, normal physical findings do not rule out the possibility of abuse. A medical expert, even if he or she did not examine the child in question, may be called to testify on the meaning of normal physical findings in an examination of a child who discloses sexual abuse.
Experts may be asked to testify in the direct offer of proof as when a prosecutor presents expert testimony as part of the direct presentation of his or her case. Expert testimony can also be used in rebuttal. For instance, after the treating physician's testimony and cross examination in a child sexual abuse case that a child's examination was normal, a medical expert might be called to clarify that normal physical findings do not rule out the possibility of sexual abuse.
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