Expert v. Lay Witnesses: 701, 702, 704 Flashcards
What are some general understandings about the differences between layperson and expert opinions?
+ Laypersons are permitted to offer opinion testimony that does not require scientific or technical knowledge
+ Experts are allowed to render technical or scientific opinions
+ The more common the knowledge, more likely it’s layperson testimony
+ When deciding between layperson and expert, look at the type of testimony, not the person
+ A defendant CAN serve as his/her own expert witness
What does R.701 say?
R. 701 Opinion Testimony by a Lay Witness
If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:
(a) rationally based on the witness’s perception;
(b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge within the scope of R. 702.
What does “Rationally based on witnesses’ perceptions” mean for the purposes of R.701?
Similar to firsthand knowledge or observation requirements — needed to offer an opinion
Rational = requires judge to decide if witness’ firsthand knowledge is adequate to support such an opinion
Defense attorney asks witness, “what did you see that night?” and the witness responds, “It was so foggy, I couldn’t see my hand in front of my face.” The defense attorney proceeds to ask the witness about details of the scene of the crime. P’s attorney objects.
How should the court rule?
Objection: Improper lay witness and improper knowledge, Under R.701(a) and R.602
Response: Allow me to lay more foundation (ex: the fog cleared, another circumstance explains how the witness could rationally perceive the details in fog).
Ruling: Depends on if D can lay more foundation
Lay witness testified that he was 200 feet away from a car crash, facing the opposite direction. But the witness heard the tires/brakes squealing and a loud crash. Based on that observation, he estimates D was driving at least 65 MPH on a residential street when entering the intersection. D’s attorney objects.
How should the court rule?
Objection: Rule 701, Improper Testimony by a Lay witness
Response: The witness was in close proximity and could observe
Ruling: sustained, as lay witnesses cannot precisely determine a car’s speed merely from hearing the sound of a crash, especially given the distance away from the accident
What does “Helpful to the Jury” mean for the purposes of R.701? What are common examples of when lay testimony is helpful to the jury?
Helpful ⇒ those opinions do not “amount to little more than choosing up sides” by “introducing meaningless assertions”
+ Low bar, but prevents witnesses from taking the stand to proclaim “he’s guilty” or “I think she ought to pay”
Actually helpful when…
+ Testimony about raw perception cannot adequately convey meaning – “you had to be there”
+ Aiding clear expression – “The defendant was smiling”
+ Collective facts – shorthand of what witness perceived
True or false: An opinion is objectionable because it embraces the ultimate issue
False. Opinion NOT objectionable just because it embraces an ultimate issue
BUT does not mean opinions on the ultimate issue are permitted
+ Must comply with R.701 and R.702
+ Ultimate issue opinions may still be excluded if unhelpful under R.701 or if no assistance to factfinder under R.702
+ Must comply with R.403
Examples:
“Did T have the capacity to make a will?” – excluded
“Did T have sufficient mental capacity to know the nature and extent of his property and the natural objects of his bounty to formulate a rational scheme of distribution?” – allowed
What is the rationale for a FRE re: Expert Opinions?
Why Experts?
+ Full, fair, and informed jury decision requires expert guidance
+ Inferences necessary in courtroom arguments are based on generalizations – some of which do not require expert testimony and some of which that DO
+ Expert testimony used in a syllogistic fashion to focus attention and trial planning what a proponent must prove to prevail
For purposes of R.702, what does “beyond the ken of laypersons” mean?
+ Experts must have qualifications enabling them to offer opinions on matters that laypersons could not
+ Testimony need only be helpful → help the trier of fact understand the evidence or to determine a fact in issue
+ Qualification may be measured to a special issue
+ Syllogistic nature of expert testimony is important in judging an expert’s qualifications
D has been charged with making threatening phone calls. One of his victims has recorded all such calls. Pursuant to court order, D has recorded himself reciting a specified script. P wants to offer a voiceprint analysis to prove that the voice on the recording of the threatening calls matches D’s voice. The term “voiceprint” is commonly used to refer to a spectrogram, which is a visual representation of a human’s voice qualities. P calls Expert 1, a police officer spectrogram technician, to the stand as P’s sole expert witness. Expert 1has a high school degree and has attended five training sessions on how to administer spectrograms. Expert 1 has administered more than 50 voice spectrograms over the course of 10 years; in each case he testified as a voice spectrogram expert at a criminal trial. D’s counsel objects.
How should the court rule?
+ Objection: Lack of expertise, foundation
+ Response in Syllogism re: Expert 1’s qualification
MP 1: Each human has a unique voice
MP 2: The voice spectrogram analyzer is a device that accurately records each person’s voice features and correctly represents those features in a written diagram
MP 3: Voice spectrogram analyzer accuracy depends on the technician’s following certain specific procedures
MNP 1: Those procedures were accurately followed in matching D’s voice recording to the threatening phone caller’s voice recording
Conclusion: D made the phone calls
+ Ruling: Sustained as to MP 3 and MN 1, as Expert 1 can attest to the procedures and accuracy resulting in following the procedures. By bringing in an additional expert who has extensive research experience with spectrograms, the prosecution can cure its expert defects.
What are methods used to establish or challenge an expert’s qualifications?
To establish or challenge an expert’s qualifications
+ Expert’s formal education and degrees
+ Expert’s specialized training in the field of expertise
+ Time expert has spent practicing in the field
+ Expert’s professional licenses, teaching experience, publications, membership in professional organizations
+ Previous testimony given by expert
What is the Daubert test under R.702?
New test under R.702: A qualified expert may offer an opinion IF “scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue.
R.702’s “clear contemplation” of regulation of expert testimony was obvious from the Rules’ reference to “scientific knowledge”
The something “more” that defined knowledge was “any body of known facts or… any body of ideas inferred from such facts or accepted as truth on good grounds”
What are the Daubert factors?
+ Are the theory (underlying scientific theory) and the technique applying that theory (what the proposed R.702 amendment refers to as methods) testable and have they been tested (Has a hypothesis been generated and have adequate efforts been made to falsify that hypothesis, with no such falsifications yet having been achieved)?
+ Have the theory and techniques been subjected to peer review and publication?
What is the known or potential error rate of the technique?
+ Are there standards controlling the technique’s operation?
+ Is there an authoritative statement of the circumstances under which the technique’s application to a particular case will be considered trustworthy?
+ Has the principle or technique attained “widespread acceptance” (something undefined but arguably less than Frye’s general acceptance test”)
P sues Ford Motor Company for personal injuries after his Ford Pinto exploded into flames when hit from behind at 5 mph. P seeks admit into evidence a portion of a memorandum written by Ford’s Chief Auto Engineer within the scope of his employment: “The Pinto’s gas tank is poorly placed and may too easily spark fires in low impact collisions. Production should be postponed to address the problem.” Is this admissible?
P is offering the statement for truth of what it asserts – hearsay
BUT the statement fits within opposing party statement exemption from hearsay rule
Overcomes hearsay and opinion rule objections
No independent showing need be made that the opinion meets R.701-705 requirements
What are some practice tips for cross-examination of expert witnesses?
+ Research transcript from expert’s previous testimony
+ If any facts, data, and opinions underlying expert testimony has not been revealed on direct examination, opponent may elicit such on cross examination
+ Discuss compensation – not considered a big deal unless it’s an exorbitant amount of money
+ What the expert DID NOT DO
Only helpful if adversarial side DID do this
What the expert didn’t evaluate – make sure the expert has everything
Determining which materials the expert reviewed or failed to review in preparing to offer the opinion
+ Question expert’s assumptions
Could a reasonable expert differ?
Exploring how the existence of contrary or additional bases (presumably supported by evidence from cross-examiner at later stage) would alter the expert’s opinion
