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When to Conduct Voir Dire of Expert Witnesses
Last month, we discussed tactical considerations when challenging expert witnesses' qualifications. This month, we focus on the optimal time to conduct voir dire.
After the expert's proponent has presented the expert's qualifications, the opposing party has three options: 1) waive any objection to the witness being qualified as an expert, 2) object and state the grounds of the objection, or 3) ask to voir dire the witness as to his or her qualifications. In the vast majority of states, the opposing party must be afforded the opportunity, if he or she so requests it, to cross-examine the witness on the question of his or her qualifications before discretionary determination of the admissibility of expert testimony from the witness is made by the trial court and before the witness's direct examination.
In a non-jury trial, challenges to an expert's qualifications are typically more effective when addressed during voir dire instead of during cross- examination. This is true in bench trials because judges are more sophisticated triers of fact and more fully understand the purpose of voir dire and the importance of the expert's qualifications. As will become clear below, most of the justifications for withholding questioning on qualifications until cross-examination do not apply in a bench trial setting.
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