5) Opinion + Expert Tmony Flashcards
opinion tmony by lay wit R 701
must be rationally based on perception
+ personal knowledge (percipient)
scope of nonexpert tmony: mnemonic
VEMPSS
scope of nonexpert tmony: list
1) Value of own land
2) Emotional state of others
3) Measurability (speed of vehicle, ht/wt/distance)
4) Physical states (drunk?)
5) Sensory descriptions
6) Sanity of testator
scope of nonexpert tmony: inappropriate
legal conclusions
inc: schizophrenic, alcoholic, addict, sociopath
702: expert must be
1) qualified
2) relevant
3) reliable
expert: qualified
must have special skill, knowledge, edu, experience, training
expert: relevant
subject matter must be appropriate, opinion must be helpful/relevant to assist jury
expert: reliable: ways to get it in
other expert testimony
by stipulation (polygraph)
by judicial notice
battered wife syndrome
ok
expert: reliable: test
Daubert! NOT Frye
expert: reliable: Daubert test: mnemonic
TAPES
expert: reliable: Daubert test: factors
1) Tested (has it been? how extensively?)
2) Acceptance (generally accepted in relevant com?
3) Peer review
4) Error (rate of)
5) Standards
expert: reliable: Frye test
MINORITY! general acceptance in the scientific com
basis of expert opinion tmony 703
1) personal knowledge at or before tiral
2) hypothetical qs – facts given to expert at trial
3) facts given to expert before trial
basis of expert opinion tmony 703: what facts can expert rely on?
reasonable reliance rule – must be of type reasonably relied on by other experts in the field
basis of expert opinion tmony 703: when must disclose
balancing test – if underlying data otherwise inadmissible at trial, cannot reveal UNLESS proponent shows that probative value substantially outweighs prejudicial effect (inverse of 403(b)–usu not admissible)
dnn testify to underlying facts, but may be required to on cross
experts + ultimate issues: 704
generally expert may give an opinion which embraces an ultimate issue (often in teh facts-applied ko way)
experts + ultimate issues: 704: exceptions
1) a true legal conclusion “P was contributorily negligent”
2) D’s intent
experts + ultimate issues: 704(b): crim D
expert may not give opinion re whether D did or did not possess mental state which constitutes element or defense of crime charged – is ultimate issue, for jury
court-appointed experts 706
court may appoint
- -must advise parties of findings, allow either party to depose
- -may be called to testify
