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Using <i>Daubert</i> on Cross-Examination
When one tells lawyers from other jurisdictions that New York has yet to adopt the Daubert approach to determining the admissibility of expert evidence, one is met with raised eyebrows, dropped jaws and the occasional acerbic inquiry of whether travel to New York requires a map or a time machine. Daubert v. Merrill Dow Pharmaceuticals, 509 U.S. 579, 592, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Yet the enlightenment of Daubert's reliability analysis is beginning to pierce the fog of Luddism that has for so long enveloped the landscape of New York jurisprudence. This article addresses recent indications that Daubert is gaining ground in New York, as well as its current utility as a potent weapon on cross-examination of expert witnesses who are such common fixtures in the domestic relations courtroom.
Reliability Is a Key Issue
Daubert v. Merrill Dow Pharmaceuticals speaks to the evidentiary reliability that must be demonstrated as an essential precondition to admissibility of expert testimony. Whenever any witness, lay or expert, testifies, the key question is whether or not the evidence offered is reliable. When the witness is an expert, such as a forensic evaluator in a custody dispute, the question of reliability takes on a technical edge. Because the expert, unlike the percipient lay witness, is allowed to put forth inferences, conclusions and opinions, reliability analysis requires consideration of several factors to ensure that “the expert's opinion will have a reliable basis in the knowledge and experience of his discipline.”
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