Evidence 31-35

Question 1

When may a Lay Witness offer an opinion?

Answer 1

If it is:

Rationally based on the witness’s perception;

Helpful to clearly understand the testimony or to determine a fact in issue;
AND additionally, under the FRE:

Not based on scientific, technical, or other specialized knowledge.

Priority: HIGH

Question 2

When is Expert Witnesstestimony permitted?

Answer 2

When the:

Witness is qualified as an expert;

Opinion is helpful to the jury;

Witness believes in the opinion to a reasonable degree of certainty;

Opinion is supported by sufficient facts/data;
AND

Opinion is based on reliable principles/methods that were reliably applied.

Priority: HIGH

Question 3

Expert Testimony

What is reliability based on (FRE vs. CA)?

Answer 3

FRE Daubert/Kumho standard:

Reliability is based on the methodology’s: (1) Publication and peer review; (2) Error rate; (3) Testability; AND (4) Whether it is generally accepted in the field.

CA Kelly/Frye standard:

Reliability is based on whether a methodology is generally accepted in the field.

Priority: Medium

Question 4

What is Hearsay?

Answer 4

An out of court statement,

That is offered to prove the truth of the matter asserted.

*Hearsay is ONLY admissible if it falls under an exception.

*A statement is an oral/written assertion or nonverbal conduct if intended as an assertion (it MUST assert something).

Priority: HIGH

Question 5

What is Non-Hearsay?

Answer 5

An out of court statement that is offered to prove something other than the truth of the statement. It IS admissible.

Non-Hearsay includes:

Verbal acts of independent legal significance.

Statements to show the effect on the listener.

A prior inconsistent statement used to impeach.

Circumstantial evidence of the speaker’s state of mind.

Priority: HIGH