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  • What Does It Take To Be An Expert

    What qualifies a person to be an expert? Must the individual have a doctorate degree? If the individual has an advanced degree, is he or she automatically qualified to
    testify as an expert?

    In Tosh v. Schwab, 743 N.W.2d 422 (S.D. 2007), plaintiff claimed he was a victim of inappropriate police surveillance and interrogations that were intended to inflict
    emotional distress upon him. To support his claim, plaintiff offered the testimony of Dr. Gehm who proposed to give his opinion that the procedures were improper
    ‘psychological intimidation and coercion’ that was ‘intentional, willful, and outrageous.’ The defendant police officers challenged the admissibility of Dr. Gehm’s
    testimony. Following a hearing, the trial court determined Dr. Gehm was not qualified as an expert so his testimony would not be allowed.

    On appeal, the South Dakota Supreme Court began its analysis by referring to the applicable rule of evidence. SDCL 19-15-2 (Rule 702) states:
    [i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as
    an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

    Under this rule, the Supreme Court explained the first inquiry is whether the individual is qualified as an expert on the issues to be addressed. Furthermore, the
    expert’s theory or method must qualify as scientific, technical, or specialized knowledge.The expert testimony must be competent, relevant, and reliable. The party offering the expert testimony bears the burden of establishing its admissibility.

    The Court looked closely at Dr. Gehm’s background. He has a bachelors degree in English and drama and a doctorate degree in sociology (not law enforcement). He had
    never worked as a law enforcement officer. He had no training in police work. He taught political science and sociology. His consulting and research experience was in
    criminal corrections and treatment.

    The Court also noted that Dr. Gehm’s opinions were not subject to peer review; he had not published articles or books on the subjects at hand; and he was unable to
    articulate a standard the police officers should have followed in conducting surveillance and interrogations.
    Dr. Gehm had read some publications on the issues at hand. That, according to the Court, was not enough: Although Gehm read some publications on these subjects, reading a book alone does not make a person a qualified expert. Tosh at 429.

    To qualify as an expert on the issues to be decided, there must be something in the individual’s education, training, experience, skills, or knowledge with regard to those
    specific issues that will make their testimony helpful to the jury or judge. Formal education is only one factor. It’s not required and, as in Tosh, may not
    even be sufficient. Experience alone, without regard to formal education, can be enough and can be the most persuasive. As applied to the Tosh case, for example, a retired police officer with experience in surveillance and interrogation would likely qualify as an expert and probably be very persuasive regardless of the officer’s formal education.

    In some cases, you will need a highly educated individual with advanced degrees as well as significant experience on the particular issues to be decided. In others, formal
    education is really not important. It depends on the case and the issues to be decided. Does being “qualified” automatically make the expert “good” – one who can
    effectively evaluate the circumstances at issue and persuasively articulate his or her opinion in a way that helps your case? Certainly not, but that subject – what makes an
    expert “good” – is for another day.

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