Expert Opinion Flashcards
702
experts allowed if W is an expert and 1) based on sufficient facts or data, 2) product of reliable methods, 3) W applied methods reliably.
Disallowed topics
a) common knowledge test: can a jury determine issue without assistance from someone with specialized knowledge.
b) ultimate issue of fact or law: 704 says not automatically out if embraces ultlimate issue, cannot cross line to tell jury what results to reach.
State v. Batangan
E: Dr. Bonds to testify re: V’s behaviors were believable
D argument: not helpful to the jury- out inder 702; violates 704 by telling jury what conclusion to reach.
issue 2: telling jury what conclusion to reach- when does this cross the line? IF testimony has same effect as direct opinion on truth, then disallowed.
Held: minimal help on proper areas, more about V bolstering= out.
703
Basis of testimony
basis inadmisisble: can come in under reverse 403. probabtive value in helping the jury evaluate the opinion substantially outweights the prejudicial effect.
Notes:
1. experts can rely on inadmissible evidence if reasonable to rely
clearly OK to use admissible evidence.
Kantengwa
D from Rowanda, applied for asylum. said that a road block was in a certain place. tried for perjury
basis of opinion:
Ricciardi v. Childrens hospital
med mal. Dr. N note in patients chart says that aortic cannula came out during surgery. Caused major complications.
Dr. N was not present for the surgery.
expert: Dr. K; opinion that if the cannula did come out, then that would have caused the complications
Proper basis?
1. facts known to him at or before hearing
2. . if admissible, then ok
3. if not admissible, then experts must reasonably rely on it
Slip and Fall hypo
P slips on department store floor while shopping and is injured. P’s expert W wants to testify that floor was not dafe- too slippery due to floor wax.
P’s expert will rely on statement of president of cleaning company who said that they applied 2 layers of wax to the floor.
No employee of the cleaning company will testify. Cleaning co policy says 1 coat of wax only.
P’s expert testifies that experts in personal injury cases on slippery floors customarily will rely on statements of persons involved in the incident an expert reasonably relies upon? cannot rely soley on the experts themselves.
Assume it is reasonable to rely on- is the opinion admitted (if reasonable reliance allows opinion to come in, 403 balancing will never keep it out)? probative value must substantially outweigh the prejudice (default is that it doesnt come in).
Frye v. US
Murder case
E systolic blood pressure deception test (basically a lie detector test) offered by D
Issue: When does a scientific method (test) become reliable enough to admit?
Held: for a scientific method to be admissible, it must be sufficiently established to have gained general acceptance in the praticular field to which it belongs.
Daubert v. Merrell Dow Pharms.
product liability for medicine causing birth defect
P E: 8 experts to show link of drug to injuries- expert said that ivf studies and animal studies show that this drug causes birth defects.
Issue: is the Frye test the correct test for admission of expert testimony in federal court?
Held: frye is not the standard for admission in federal courts. rule 702 superseded frye in 1975. test is at odds with FRE liberal thrust.
702: has to be both relevant and reliable.
1. relevant evidence: helps the trier of fact (understand or determine); question of fit
2. reliable evidence: (flexible test, list is nonexhuastive) (1)can it be tested, (2) subjected to peer review and publication, (3) known or potential rate of error, (4) standards for controlling the technique, (5) general acceptance- Frye.
weak evidence: so long as it meet 702, admit and can be attacked on cross
held: rule 702 is the standard by which evidence must be tested for admission, and proponent must show relevance and reliability to admit expert testimony. “we are confident federal judges possess the capacity to undertake this review”
burden of proof used to decide if relaibility is shown
preponderance of the evidene (104a analysis)
AC notes on Daubert motion
Proponent need not show expert opinions are correct, only that they are reliable. This is a lower burden than a standard of correctness.
Daubert motion is used to challenge oppossing parties expert.
Daubert hearing: court hearing to hear evidence on reliability of methods. Judge decides if the reliability has been shown by preponderance of the evidence.
in appeal, gets abuse of discretion standard of review.
reliability factors
daubert
- can and has it been tested
- peer review and publication
- known or potential rate of error
- standards for controlling the operation of technique
- generally accepted
Kumhho Tire v. Carmichael
non-scientific expert
Products liability
E: Carlson, tire expert, says tread separation from a tire defect caused the blowout
Basis: inspection, knowledge of manufacturing, factors analysis
D objection: fails the reliability test under Daubert
Issue: does Duabert gatekeeping spply to nonscientific expert evidence?
Held: Daubert gatekeeping applies to all 702 evidence based on:
1. language of the rule: no distinction between science and other fields
2. rationale for the rule: all experts get testimonial latitude, so should be reliable
3. line drawing: cannot make distinctions with science and technical expertise
4. jury role: jury unable to critically examine expertise, so need to be sure its okay
Daubert factors are not definitive and are flexible based on circumstances.
Carlson out: unreliable: methodology is very subjective, no daubert factors support. (ipse dixit “because i said so”)
Ayers v. Robinson
prob. 9.17
wrongful death for a cop killing a kid.
E: says can determine life value
is the expert qualified? yes, he wrote a book on how to do hedonic damage calcs
will this assist the jury (702)? yes, jury probably wouldnt know how to calculate the value of a lossed life. Basis of testimony (703)? inadmissible or admissible? if inadmissible, is it reasonable to rely on this infromation? surveys are inadmissible hearsay, reasonable reliance.
Reliable under Daubert factors?
testing; maybe? peer review; published, good. rate of error; no. standards; maybe?. Generally Admissibility; idk.
held: not reliable- inadmissible
US v. Gaines
702
series of robberies. one involving the assailant wearing a ski mask.
E: DNA on a bandana from crime scene matches co-D sample
Issue: is the STR method reliable enough to admit under Daubert?
held that reliability is clear, so STR method is admissible. Multiple courts have found the same method to be reliable already
Random Match Probability: the probability that a person, other than the suspect, randomly selected from the population, will have this profile at 13 DNA loci.
held that daubert factors support finding of reliability
