Chapter 9 Opinion Evidence

Question 1

What is Opinion Testimony?

Answer 1

Witness testimony that doesn’t fall under the 602 rule. Remember, you need firsthand knowledge to testify. Sense of touch and smell counts. If it’s a physical perception and witness talks about what they saw first hand, we good. But most of what we think we know is an opinion. And GENERALLY opinions are not allowed. But like all great rules, there’s exceptions

Question 2

General Rule on Opinions

Answer 2

Not allowed in evidence

Question 3

How do you object to opinion evidence?

Answer 3

“Objection Your Honor; it calls for an opinion”

Question 4

R 701: Opinions of non-experts - Allowed if it meets the following:

Answer 4

1. BASED ON A PHYSICAL PERCEPTION BY THE WITNESS, AND
2. RATIONALLY BASED, AND
3. HELPFUL TO THE TRIER OF FACT

Question 5

R 701: Opinions of non-experts - What does Helpful mean?

Answer 5

“HELPFUL” MEANS THERE’S NO OTHER FEASIBLE WAY TO CONVEY THE WITNESS’S OBSERVATION

IF TESTIFYING TO A FEW FACTS CAN CONVEY THE STORY TO THE JURY JUST AS WELL, THE OPINION IS DISALLOWED

Question 6

Examples of Lay Opinions

Answer 6

HE WAS DRUNK (or SOBER)
HE WAS UPSET
SHE WAS NERVOUS
SHE WAS ANGRY

ALL REQUIRE FOUNDATION OF A PHYSICAL PERCEPTION

So “He was upset” ALONE will not fly, but if they said “I saw him frown” “he threw his book at me” “he was shouting” “his eyebrows were furrowed” then its probably admissible

Question 7

Further examples of lay opinions traditionally allowed: (2)

Answer 7

1. Sanity/Insanity
2. Handwriting - foundation is that the witness is familiar with the person and their handwriting. You’d have to get down to the nitty gritty. “Oh when they write an n and a g together the n usually merges w/ the g

BOTH REQUIRE FOUNDATION OF PHYSICAL PERCEPTION

Question 8

Can a witness testify to a state of mind?

Answer 8

NOPE but can give a lay opinion with a foundation of physical perception

Question 9

R 701: Opinions of non-experts: What does rational mean?

Answer 9

It makes sense to make that “logical leap” from, for example, “he was shouting at me and threw stuff at me” to “he was upset with me”

Question 10

R 702 Expert witnesses - Is first hand perception required?

Answer 10

NOPE - Firsthand perception not required

Question 11

What is an expert?

Answer 11

Someone who has special knowledge in SOME area for some time. Knowledge, skill, experience, training, or education. It doesn’t have to be in science, you can have an expert in limited partnerships.

Question 12

Expert’s methodology must be ______.
When is the expert’s methodology checked?
What happens if the expert’s methodology is found reliable?
What happens when its not reliable?

Answer 12

RELIABLE

CHECKED INITIALLY BY THE JUDGE, AT A HEARING BEFORE TRIAL. Pre-Trial Conference

IF JUDGE FINDS METHODOLOGY WAS RELIABLE, OPINION IS ADMITTED FOR JURY EVALUATION

JURY MAY STILL FIND METHODOLOGY WAS UNRELIABLE AND GIVE OPINION NO WEIGHT

Question 13

When does the voir dire question need to happen?

Answer 13

BEFORE THE OPINION QUESTION IS ASKED

Question 14

What do you ask when you voir dire an expert?

Answer 14

CREDENTIALS and METHODOLOGY

Question 15

Even if a judge ruled that an expert’s testimony is ok, can you voir dire the expert on the stand?

Answer 15

YEP - you just want to whittle down their credentials infrint of the jury

Question 16

Janike’s way of cutting an expert down to size:

Answer 16

1) Did you consider x?

2) Do you consider yourself infallible?

Question 17

Can an expert testify to hearsay?

Answer 17

YES - See both R 703 and 705 - If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted.

Question 18

R 703 - Bases of Experts

Answer 18

An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.

Question 19

R 705 - Disclosing Facts/Data underlying an expert

Answer 19

Unless the court orders otherwise, an expert may state an opinion — and give the reasons for it — without first testifying to the underlying facts or data. But the expert may be required to disclose those facts or data on cross-examination.

Example: Expert says “I’ve given my credentials and my reasoning is that the dude broke his toe” and expert does not need to explain how she got to that reasoning. Do you bring it up on cross? If you don’t, you can close your argument with “yo, they expert said NO REASON how they reached their conclusion, give them no credit” but it’s a risk bringing it up on cross. However, if they’re silent on it, chances are the basis is flimsy. If the basis was strong, the other side would’ve put it in.

Question 20

Moore rule on DNA testimony

Answer 20

You CANT testify to DNA evidence alone “oh its a match” without giving some sort of statistic for error. If not, it is unfairly prejudicial.

Question 21

Daubert Standard - General Rule

Answer 21

Scientific theory or technique testimony does not need to be generally accepted in order to be admissible. it used to be a dispositive factor, now it is just a factor.

Question 22

Daubert Standard - Factors - what factors does a judge need to look at in order to allow the testimony to come in under R. 702?

Answer 22

A judge needs to ensure that an expert’s testimony both rests on a reliable foundation and
is relevant to the task at hand.

Factors:
o Subject to peer review; published?
o Has the theory been tested? Replicable and reliable
o Method generally accepted w/in relevant scientific community?
o Potential rate of error?

Question 23

Opinion on an Ultimate Fact - R 704 (Federal)

Answer 23

(a) In General — Not Automatically Objectionable. An opinion is not objectionable just because it embraces an ultimate issue. (Generally allowed)
(b) Exception. In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.

Example of exemption: Letting an expert go to the bottom line invades the province of the jury. So what do? Back up a couple of steps. “I gave him a test of a series of questions that test whether right or wrong, and the guy got them all wrong”

Question 24

Opinion on an Ultimate Fact - Texas Rule

Answer 24

has the more enlightened rule and no exception, go to the bottom line AF (as long as the methodology is good)

Question 25

R 706- Court Appointed Witnesses

Answer 25

(a) Appointment Process. On a party’s motion or on its own, the court may order the parties to show cause why expert witnesses should not be appointed and may ask the parties to submit nominations. The court may appoint any expert that the parties agree on and any of its own choosing. But the court may only appoint someone who consents to act.
(b) Expert’s Role. The court must inform the expert of the expert’s duties. The court may do so in writing and have a copy filed with the clerk or may do so orally at a conference in which the parties have an opportunity to participate. The expert:
(1) must advise the parties of any findings the expert makes;
(2) may be deposed by any party;
(3) may be called to testify by the court or any party; and
(4) may be cross-examined by any party, including the party that called the expert.
(c) Compensation. The expert is entitled to a reasonable compensation, as set by the court. The compensation is payable as follows:
(1) in a criminal case or in a civil case involving just compensation under the Fifth Amendment, from any funds that are provided by law; and
(2) in any other civil case, by the parties in the proportion and at the time that the court directs — and the compensation is then charged like other costs.
(d) Disclosing the Appointment to the Jury. The court may authorize disclosure to the jury that the court appointed the expert.
(e) Parties’ Choice of Their Own Experts. This rule does not limit a party in calling its own experts.

Question 26

Do you accept the stipulation of expertise of your expert witnesses?

Answer 26

Why in the name of Jose Baez would you do so? I’m not even a litigator and I K N O W this should NOT be accepted.