Admissibility

The Montana Rules of Evidence generally govern what is and is not admissible in a DN case. MCA 41-3-422(4). These rules determine what the judge can and cannot consider during a DN case. There are specific rules about what evidence a judge can consider from an expert witness as opposed to a lay witness.

Lay Witnesses

Lay witnesses are not expert witnesses. They cannot provide an expert opinion. Lay witnesses testify about things they personally observed. Their opinion testimony is limited to those opinions or inferences based on their perceptions. To be considered by the court, lay witness opinions must be helpful to understanding their testimony or a determination of a fact at issue. Title 26 Evidence, Chapter 10 Montana Rules of Evidence, Art. VII Opinion and Expert Testimony, Rule 701 Opinion Testimony by Lay Witnesses, MCA.

For example, a lay witness may be a parent's friend. That witness could testify about what they think makes their friend a good or bad parent in their opinion. To do so, the witness must have first-hand knowledge about how their friend parents their children. They cannot base their opinion upon the observations of others. As another example, if the condition of the parent's home is at issue, a lay witness would probably be allowed to testify that a house was a mess if they personally observed the home. The lay witness would likely need to explain why they thought the house was a mess, such as providing details about dirty dishes and clothes. These opinions are based on lay witness perceptions and do not require a particular expertise.

Expert Witnesses

Expert witnesses, like qualified expert witnesses in ICWA/MICWA cases, are available to assist the judge in understanding the evidence or determining a fact at issue. A witness is qualified as an expert by knowledge, skill, experience, training or education. They may testify in the form of an expert opinion. An expert has learning or experience beyond what a layperson would have. Facts must support their opinions. Those opinions can be based on personal observations, documents reviewed and information provided by others. However, the items they rely upon as an expert must be of the type usually relied upon by an expert in their field. Title 26 Evidence, Chapter 10 Montana Rules of Evidence, Art. VII Opinions and Expert Testimony, Rules 702 Testimony by Experts & Rule 703 Basis of Opinion Testimony by Experts, MCA.

For instance, psychologists may testify about parent-child bonding and attachment issues. As a mental health expert, they could review medical records, reports and evaluations produced by others before giving their opinion to the court. Expert witnesses do not have to rely solely on their own observations. However, the items they rely upon as an expert must be of the type usually relied upon by an expert in their field.

The attorney presenting testimony from an expert witness must qualify them as having specialized knowledge that will assist the court in determining a fact at issue. Other parties' lawyers can contest whether a particular witness is an expert. The judge decides whether a witness has adequate knowledge to provide an expert opinion concerning a matter in the case. When a witness is qualified as an expert by the court, through their knowledge, skill, experience, training or education, they may then testify as to their expert opinions. Montana Rules of Evidence, Art. VII Opinions and Expert Testimony, Rules 702 Testimony by Experts.

By way of example, if a lay witness made these observations, they could testify that while a parent was driving with their child, their speech was slurred, their eyes were glossy, and they fumbled around for their keys and purse. An expert witness may be able to provide an expert opinion that the same driver was intoxicated based on observations of this nature, depending on their knowledge and experience. Police officers often provide such expert testimony.

Montana child protection specialists, or CPSs, are commonly considered experts in their field. This expertise can include the child's best interest, placement options, investigation practices and other daily work areas. They are not considered experts in psychology, counseling or medicine. For instance, a CPS could generally not provide expert testimony on whether a parent struggles with a particular mental health issue based solely on their observed behavior. The CPS would likely need to engage a mental health expert to evaluate the parent and provide the CPS with their expert opinion on whether the parent has any mental health conditions. If a contested hearing is held, the mental health expert would need to testify about their opinion.