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PRESENTATION OF EXPERT TESTIMONY

a. An expert giving testimony concerning DNA evidence should be asked to identify and explain the theoretical
and factual basis for any opinion given and the reasoning upon which the opinion is based.
Jurors should not be expected to accept an expert witness's opinion simply because the witness is permitted to testify
as an expert. Expert testimony should be presented in a way that conveys the theoretical and factual basis for the
expert's findings and the reasons underlying the expert's opinions.

b. Expert testimony should be presented to the trier of fact in a manner that accurately and fairly conveys the
significance of the expert's conclusions.
Experts should not offer their conclusions in a manner that is misleading to the jury. For this reason, it is often better
to bring out the limitations of a technique on direct examination. Attorneys sometimes pressure experts to "push the
envelope" - not a surprising occurrence in the adversary system. ABA Standards provide: "A prosecutor who engages
an expert for an opinion should respect the independence of the expert and should not seek to dictate the formation
of the expert's opinion on the subject. To the extent necessary, the prosecutor should explain to the expert his or her
role in the trial as an impartial expert called to aid the fact fmders . , A comparable Standard applies to defense
counsel.

c. Valid statistical estimates of population frequencies should be admissible.


Typically, DNA evidence includes a statistical estimate in the form of a "random match probability." If properly
presented, such an estimate gives the jury helpful information concerning the probative value of the explanation may
be misleading. There is disagreement about how to report statistical estimates in cold hit cases.

Commentators have identified what is known as the and "defense" fallacies, both of which should be avoided.
Although some courts and commentators have expressed concern about the risk of jurors overvaluing statistical
estimates, the little research on the subject suggests the opposite may be more likely. The 1996 National Academies
Report recommended further research on jury understanding, and several studies since the Report was issued have
looked at the issue. Some studies indicate that how the evidence is presented (e.g., as a frequency, probability, or
odds) influences how jurors understand the evidence.
d. When DNA evidence is offered at trial, evidence relevant to the reliability of that evidence, including
relevant evidence of laboratory error, contamination, or sample mishandling, should also be admissible.
As recent news reports demonstrate, the power of DNA evidence can be undermined if the evidence is improperly
handled or tested. Laboratories can make errors, as can the police in the collection process. Evidentiary rules the right
of parties to challenge the reliability of admitted evidence, a principle that has a constitutional basis.

e. An attorney intending to call an expert witness concerning DNA evidence should confer with that expert in
preparing for trial in order to permit an informed and appropriate presentation consistent with this
standard.
A common complaint of experts is that attorneys do not sufficiently consult with them before trial. The Mental Health
Standards contain a provision on an attorney's duty to prepare an expert for trial,304 and the Model Rules make
competence the first principle of professional representation. Standard 5.3 cannot be implemented without pretrial
discussion between the attorney and the expert.