33rd / 424th District Courts

The question "on ho wmany previous occasions have you qualified as an expert" is objectionable hearsay, or so says Edward J. Imwinkelried in an article in the October 31, 2005 issue of The National Law Journal.  I agree.

The judge in each of the earlier cases is an out of court declarant, pure and simple.  Under what exception could this possible come in?  The statement is made out of court, and more particularly what was the expert testifying about previously--the same subject? Same set of underlying facts? An appeal might have even tossed out the expert's testimony and he/she might not even be aware of that.

In front of the judge in a preliminary hearing it is certainly acceptable testimony (although possibly not relevant to the current judge's decision) but in front of the jury it's hearsay without an exception.