Evidence- Opinion Testimony

Question 1

Rule 701- Lay Opinions

Answer 1

If not an expert then must limit testimony to

1) rationally based on perception (lay person would see)- Firsthand account meaning you actually saw it.
2) Helpful to jury- Must be in a better position than jury to make conclusion. If they are informationally deficient then admissible. Like knowing how D sounds so can identify for jury who dont know how he sounds.
3) Not based on any expertise

Cant use buzzwords like malice aforethought. Unless judge thinks it is normal to do so.

Question 2

Rule 702- Expert Testimony

Answer 2

A witness who is qualified as an expert (knowledge, skill, experience, training, or education) may testify if

1) will help trier of fact understand the case
2) Based on facts
3) Testimony is based on reliable methods
4) expert reliably applied the facts

Question 3

Rule 702 Daubert Steps

Answer 3

TJ is a gatekeeper. He gets to protect the jury from bad opinions but nothing in the rule about general acceptance.

Step 1- Methods used must be shown to be scientifically valid.

Step 2- Evidence must be relevant to the case.

Question 4

Rule 702- Daubert Factors (to establish reliability, no single factor is dispositive)

Answer 4

Can the methods be tested?
Has the method been peer reviewed?
Are there standards and controls? What is the rate of error?
Is it generally accepted?

Other considerations
Independant research or developed for litigation?
analytiical gaps? alternative explanation? Legitimate expertise?

Question 5

Daubert Standard of Proof

Answer 5

Must be convinced by a preponderance of the evidence (higher than just reasonable minds)

Question 6

Daubert Hearing

Answer 6

Party must object to the expert. Must have report about the hearing. Pre-trial hearing conducted.
Still have 403 balance for testimony.

Judge can use 706 and appoint his own witness.

Question 7

Daubert Reliability Allowances

Answer 7

Anticipation of Litigation-
If for general causation then must be done in lab not anticipating litigation. If for specific issue can be for litigation but must have reliable methods.

Should read for litigation but not cherry pick.

Question 8

Analytical Gap

Answer 8

Steps are ok but leaps are not. Must walk through how the evidence points to a certain conclusion. Any time the evidence jumps to conclusions its a problem.

Question 9

Alternate Causes

Answer 9

Must rule out obvious other causes but failure to get to all possible causes is not required.

Can prove causation by bringing in all potential causes and slowly ruling them all out.

Question 10

Non-Scientific Experts

Answer 10

Daubert applies to all experts regardless of their scientific expertise.

Experienced Based- generally inadmissible (wine expert would be allowed but would be questioned by judge as to how reached conclusion).

Forensic- Not real science but been around forever. “matches to reasonable degree of certainty” admissible even though misleading.
DNA is allowed unless touched by too many others.
Balistics is generally allowed despite failing all Daubert factors. Make sure witness doesn’t give it too much weight (say “more likely than not”).
Fingerprint- allowed despite bad science.
Gun Residue- reliable unless badly done.
Bite-Mark- Admissible but very stupid.
Hair- Also stupid as we dont know how many ppl match. But still allowed if not overstated.
Handwriting - also dumb but allowed.

Question 11

Probability & Stats

Answer 11

Must account for all factors (expert betters not represented by public).

Cant suppose the odds, must have real basis for them.

Question 12

Some Examples of Expert v Lay

Answer 12

Testimony that it smelled like dead body. Smells like something dies is probably lay witness. Smells like dead body is probably expert.

Question 13

Rule 703

Answer 13

The underlying facts that the expert used may be disclosed to the jury if 1) normal experts in the field would rely on this information to come to the conclusion. 2) facts are admissible to the jury.

Even if they are not admissible they may be disclosed if their probative value substantially outweighs the prejudicial value.

Question 14

Rule 705

Answer 14

Expert may state an opinion without first giving the underlying facts. But will be required to disclose upon cross

Question 15

Summary of 703-705

Answer 15

Expert can give opinion without giving underlying facts. May disclose the basis if the probative value outweighs the prejudice (reverse 403).
These rules deal with the underlying facts NOT the actual testimony.

Question 16

Qualifications on Expert

Answer 16

Standards are not very high. So long as the expert is not shockingly unqualified, he can be used.
Expert cannot ride his expertise to comment on matter outside of his expertise.
Experience can be sufficient basis to be an expert witness. For example, police veteran can testify to police standards.

Question 17

Subject Matter

Answer 17

Must not be common knowledge of jurors. If it is, then cannot be admissible. No real harm if given because jury knows the facts so no harm.
Very discretionary so judges can allow in many different types of testimony. Testimony about unreliablity of ID’s is sometimes allowed, sometimes not.

Question 18

Rule 704

Answer 18

Expert testimony to legal conclusion is not automatically excluded. Admissible if helpful. For example, long (technical) testimony ending in conclusion is fine because jury might not know what conclusion is.

Criminal Cases- cannot give opinion on mental state of D. Can ask “do people with this condition generally……..?” Do not let hypos get too close to the facts.