Evidence Learning Questions - Set 5 Flashcards
Which of the following opinions of a lay witness is likely to be inadmissible?
A
A person seemed cheerful.
B
A person was suffering from malaria.
C
An object was heavy and bulky.
D
A person was intoxicated.
B
Testimony as to the general appearance or condition of a person is admissible, but testimony that a person is suffering from a specific disease or a specific injury is inadmissible because it usually requires the knowledge of an expert. Testimony involving sense recognition (e.g., an object was heavy and bulky ), a state of emotion (e.g., a person seemed cheerful), and whether a person was intoxicated are admissible because they are based on the perception of the witness rather than on specialized knowledge.
A lay witness will likely be allowed to testify as to her opinion that:
A
A person has typhoid fever
B
The defendant seemed drunk
C
Her employer directly authorized her to enter into a contract, where that is at issue in the case
D
Skid marks found at the accident scene indicate that the plaintiff was speeding before the collision
B
Testimony about whether a person was intoxicated is likely admissible because it is based on the perception of the witness rather than on specialized knowledge.
When agency or authorization is in issue, a lay witness generally may not state a conclusion as to her authorization. Thus, a lay witness cannot testify that her employer directly authorized her to enter into a contract where that is at issue in the case.
Although testimony as to the general appearance or condition of a person is admissible, testimony that a person is suffering from a specific disease or a specific injury is inadmissible because it usually requires the knowledge of an expert.
It is true that a lay witness may testify that a vehicle was going “fast,” and may even estimate the speed of a moving object if a proper foundation is laid. However, accident reconstruction is a field that requires specialized knowledge; thus, a lay witness would not be permitted to testify about the significance of skid marks at an accident scene.
Which of the following statements regarding expert testimony is false?
A
The witness must have special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject.
B
The witness’s opinion must not embrace the ultimate issue to be decided by the trier of fact in the case.
C
The subject matter must be one where specialized knowledge would help the trier of fact understand the evidence or determine a fact in issue.
D
The witness must possess reasonable certainty or probability regarding his opinion.
B
The opinion of an expert witness may embrace the ultimate issue in the case . Federal Rule 704(a) and the modern trend repudiate the traditional prohibition on opinions embracing the ultimate issue in the case. The rule provides: “An opinion is not objectionable just because it embraces an ultimate issue.”
Under Federal Rule 702, expert opinion testimony is admissible if the subject matter is one where scientific, technical, or other specialized knowledge would help the trier of fact understand the evidence or determine a fact in issue. This test of assistance to the trier of fact subdivides into two requirements:
(i) The opinion must be relevant, and (ii) The methodology underlying the opinion must be reliable.
To testify as an expert, a person must have special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates.
The expert must possess reasonable certainty or probability regarding his opinion. If the opinion of the expert is a mere guess or speculation, it is inadmissible.
Which of the following statements regarding the basis of expert testimony is false?
A
An expert may give opinion testimony on direct examination without disclosing the basis of the opinion.
B
An expert’s opinion may be based on facts supplied to him outside the courtroom only if those facts are in evidence.
C
An expert’s opinion may be based on his previous examination of a person about whom he is testifying.
D
An expert’s opinion may be based on evidence introduced at the trial and communicated to the expert by counsel.
B
Under Federal Rule 703, the expert may base an opinion upon facts not known personally but supplied to him outside the courtroom, and such facts need not be in evidence or even of a type admissible in evidence, as long as the facts are of a kind reasonably relied upon by experts in the particular field. However, if the facts are of a type inadmissible in evidence, the proponent of the expert opinion must not disclose those facts to the jury unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.
An expert’s opinion may be based on personal observation. If the expert has examined the person about whom he is testifying, he may relate those facts observed by him and on which he bases his opinion.
An expert may give opinion testimony on direct examination without disclosing the basis of the opinion, unless the court orders otherwise. However, the expert may be required to disclose such information on cross-examination.
An expert’s opinion may be based upon the evidence introduced at the trial and communicated to the expert by counsel, usually in the form of a hypothetical question.
A defendant is on trial for arson of a restaurant. Chemical tests by the fire department indicate that gasoline was used as the igniting agent of the fire. The prosecution calls to the stand a waitress who works at a diner near the burned restaurant. She will testify that on the night of the fire, the defendant came into the diner smelling like gasoline.
Should the court admit this testimony over the defendant’s objection?
A No, it is inadmissible as the opinion of a nonexpert witness.
B No, it is inadmissible because the best evidence is the result of the chemical tests.
C Yes, it is admissible lay opinion testimony.
D Yes, it is admissible expert testimony because everyone who drives a car is an expert as to the smell of gasoline.
C
The witness should be allowed to testify as to what she perceived. To be admissible under the Federal Rules, evidence must be probative of a material issue in the case and must be competent (i.e., not otherwise excludable). Evidence is material if it relates to an issue in the case, and it is probative if it tends to prove the fact for which it is offered. Evidence is competent if it does not violate a specific exclusionary rule. At issue here is whether the defendant started the restaurant fire. If gasoline was used to start the fire, the fact that the defendant was seen near the fire and smelled like gasoline makes it more likely that he started the fire, so the proffered evidence is material and relevant. It is also competent; under the Federal Rules, opinion testimony by lay witnesses is admissible when it is: (i) rationally based on the perception of the witness; (ii) helpful to a clear understanding of her testimony or to the determination of a fact in issue; and (iii) not based on scientific, technical, or other specialized knowledge. Matters involving sense recognition, such as what something smelled like, are common subjects of opinion testimony. Here, the witness’s testimony satisfies all three requirements and should be admitted. Thus, (C) is correct and (A) is incorrect. (D) is incorrect because to testify as an expert one must have special knowledge, skill, experience, or education as to the subject of her testimony, and if everyone who drives a car knows the smell of gasoline, there is nothing special about that knowledge. (B) is incorrect because the best evidence rule requires that the original document be produced only when the terms of the document are material and sought to be proved. The fact to be proved—that gasoline was used—exists independently of any written record of the chemical tests; therefore, the best evidence rule does not apply.
At the trial of a lawsuit that arose out of a collision between the plaintiff’s and the defendant’s cars, the plaintiff’s attorney calls an automobile mechanic as a witness, who testifies that he has 12 years’ experience and was the only witness to the accident. The witness also testifies that he arrived at the scene immediately after the accident, which caused both cars to overturn, and saw the wheels on both cars still spinning. He testifies that the wheels of the defendant’s car were spinning faster than the wheels of the plaintiff’s car. The plaintiff’s attorney asks the witness to testify as to what speed the respective cars were traveling at the time of the accident based upon his observations of the spinning wheels. The defendant’s attorney objects.
Should the testimony regarding the speed of the cars be admitted?
A Yes, as the witness’s personal opinion.
B Yes, as a matter based upon personal observation.
C No, because the witness has not been qualified as an expert in accident reconstruction.
D No, because there is not another witness to corroborate the witness’s presence at the accident scene.
C
The witness’s testimony regarding the speed of the cars should not be admitted because he has not been qualified as an expert in accident reconstruction. If the subject matter is such that scientific, technical, or other specialized knowledge is required to render an opinion, expert testimony is admissible and appropriate. In fact, in such an area, opinions by laypersons would not be permitted. To testify as an expert, a person must have special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. The expert must possess reasonable certainty or probability regarding his opinion. Here, the witness is being asked to testify as to the speed of the cars, not based on actually viewing the cars while in motion (in which case lay opinion is often accepted), but on his observation of the spinning wheels after the accident. Determination of the speed of vehicles based upon observation of the spinning wheels of such vehicles after a collision would certainly call for the application of technical or specialized knowledge, thus making the subject matter appropriate for expert testimony. To testify as an expert, the witness must be qualified by virtue of having special knowledge or experience regarding accident reconstruction, which encompasses rendering opinions on the speed of vehicles based on the spinning of their wheels. The witness’s experience as an auto mechanic would not suffice to establish him as an expert in accident reconstruction. Since he is not qualified as an expert, his opinion testimony as to the speed of the cars based upon his observation of the spinning wheels will not be admitted. (A) is incorrect because, as has been explained, the witness’s personal opinion is not admissible without proper qualification as an expert. (B) is incorrect because, if the witness is not qualified as an expert, the fact that his opinion is supported by a proper factual basis (i.e., personal observation) will not render that opinion admissible. (D) is incorrect because the presence of a witness at the scene of events to which his testimony relates need not be corroborated by another witness.
A contractor for a large multistory building used an excavation subcontractor to dig the excavation for the foundation, and a structural subcontractor to begin structural work on the foundation. Just after the foundation was completed, an employee of the structural subcontractor was killed when the walls of the excavation collapsed.
The employee’s survivors brought an appropriate action against all of the involved parties. At trial, the structural subcontractor calls a civil engineer licensed by the state to testify that he examined the geologist’s reports of the soil conditions surrounding the construction site, as well as a report by the investigator who examined the site of the collapse, and that it is his (the engineer’s) opinion that the collapse was caused by the excavation subcontractor’s failure to take into consideration the composition of the soil being excavated.
Is the engineer’s testimony admissible?
A Yes, if civil engineers in his field rely on such materials as reports by geologists and others in reaching conclusions such as his.
B Yes, if he was not professionally negligent in his analysis.
C No, because his opinion relates to an ultimate issue that must be determined in the case.
D No, because his opinion was based on facts not personally within his knowledge.
A
The engineer’s testimony is admissible as relevant opinion testimony by an expert witness. The Federal Rules permit witnesses qualified as experts to testify in the form of an opinion if the subject matter is one where scientific, technical, or other specialized knowledge will assist the jury in understanding the evidence or determining a fact in issue. [Fed. R. Evid. 702] Under Federal Rule 703, the expert may base his opinion on facts not known personally but supplied to him outside the courtroom (e.g., reports of other experts). Such facts need not be admissible in evidence as long as the facts are of a kind reasonably relied on by experts in the particular field. Here, the engineer, who was licensed by the state, probably qualifies as an expert on the subject of his testimony and therefore can state his opinion as to the cause of the collapse of the excavation wall. As choice (A) states, he may base his opinion on the geologist’s and the investigator’s reports if civil engineers in his field rely on this type of data in reaching conclusions such as his. Thus, choice (D) is incorrect. Choice (B) is incorrect because whether this analysis constitutes professional negligence is irrelevant to its admissibility; this fact can be brought out by cross-examination. A prudent analysis will still be inadmissible if it was based on materials that experts in his field did not reasonably rely on. Choice (C) is incorrect; Federal Rule 704(a) provides that otherwise admissible opinion testimony is not objectionable because it embraces the ultimate issue to be decided by the trier of fact.
In a personal injury action, a doctor sat in court and listened to all of the evidence regarding the plaintiff’s injuries. The defense subsequently calls that doctor to testify as to his opinion about whether the plaintiff’s injuries will prevent the plaintiff from ever working again.
May the doctor testify to this?
A No, because he has not examined the plaintiff.
B No, because whether the plaintiff will work again is an issue for the jury.
C Yes, because an expert’s opinion can be based on facts made known to him at the trial.
D Yes, because the doctor is not testifying as an expert because he has not examined the plaintiff.
C
The doctor may testify. An expert’s opinion may be based on one or more of the following sources of information: (i) facts that he knows from his own observation, (ii) facts presented in evidence at the trial and submitted to the expert, or (iii) facts not in evidence that were supplied to the expert out of court and which are of a type reasonably relied upon by experts in the particular field in forming opinions on the subject. Here, the doctor’s testimony will be based on facts presented in evidence at the trial. Thus, (C) is correct. (A) is incorrect because personal examination by the doctor is not required in order to provide expert testimony as to the plaintiff’s injuries. (B) is incorrect because whether the plaintiff’s injuries will prevent her from ever working again is an issue that requires specialized knowledge to assist the jury in its determination; it is not an issue left for the jury to ultimately decide. (D) is incorrect because the doctor’s qualification as an expert is based on his specialized knowledge, skill, experience, etc. Personal examination of the plaintiff is not a prerequisite to testifying as an expert.
