Expert Witness

Question 1

Rule 701 - Opinion Testimony by Lay Witness

Answer 1

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 Rule 702.

Question 2

Notice required for lay opinion testimony

Answer 2

No notice is required for lay testimony

Question 3

Distinction between fact and opinion

Answer 3

Distinction between fact and opinion can be merely between more and less specific statement of fact

Question 4

Examples of inferences/interpretations of factual events - simple or complex

Answer 4

Age example – hard to give opinion on age, jury can be given mental image when someone says “looks like she was in her 20s”

Other ex, moods, weight, speed estimate for moving vehicles, whether driver in control of vehicle, meaning of code words

Question 5

Summary of what lay opinion witnesses can offer

Answer 5

Rationally based on perception of witness, helpful to understanding important act, not based on scientific knowledge

Question 6

Definition of layman

Answer 6

By definition, a layman is someone “who is not a member of a profession or an expert on a particular subject.” Lay opinion testimony is testimony that does not depend upon a professional license or access to a specialized body of knowledge. It is opinion testimony based on the common experiences of ordinary human beings

Question 7

Relationship between lay opinion testimony and percipient witnesses

Answer 7

Under Rule 701, lay opinion testimony is nothing more than a different form of percipient testimony. Like other percipient witnesses, the lay witness is qualified to testify at trial based on direct sensory observations and experiences

Question 8

Common scenario for an opponent’s efforts to extend lay opinion testimony into the realm of expert opinion

Answer 8

The testimony of police officers. Most police officers testify at trial as fact witnesses, relating to the jury what they, like any other percipient witness, saw, heard or experienced when investigating a case. When advocates ask police officers to render opinions as to the meaning or interpretation of their observations, this may cross the line into expert testimony.

Question 9

Rule 702 - Testimony by Experts

Answer 9

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Question 10

Foundational elements for expert opinion testimony

Answer 10

First, the witness must be qualified as an expert based on knowledge, skill, training, experience, or education.

Second, the expert’s opinion must satisfy the reliability criteria of Rule 702 and the Daubert line of cases.

Question 11

Three main tests to introduce expert opinion testimony at trial

Answer 11

Three main tests to introduce expert opinion testimony at trial:

(1) the relevance (or helpfulness) of the opinion;
(2) qualifications of the expert; and
(3) reliability of the principles and methods used by the expert

Question 12

Daubert Hearing

Answer 12

Frequently—especially when the expert’s opinion is based on novel or controversial theories—judges will hold a Rule 104 hearing, called a Daubert hearing, to determine whether the standards of Rule 702 have been met. The proponent of the expert bears the burden of proving that the expert is qualified, the opionin will be helpful, and the reliability standards of Rule 702 and Daubert have been satisfied

Question 13

Daubert factors

Answer 13

The “trial judge must determine at the outset, pursuant to Rule 104(a), whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue.”

“Another pertinent consideration is whether the theory or technique has been subjected to peer review and publication. Publication (which is but one element of peer review) is not a sine qua non of admissibility[.]”

“Additionally, in the case of a particular scientific technique, the court ordinarily should consider the known or potential rate of error[.]”

“Finally, ‘general acceptance’ can yet have a bearing on the inquiry. A ‘reliability assessment does not require, although it does permit, explicit identification of a relevant scientific community and an express determination of a particular degree of acceptance within that community.’”

Question 14

General Rule for lay opinion testimony

Answer 14

General Rule of Inadmissibility

Opinions by lay witnesses are generally inadmissible. However, there are many cases where, from the nature of the subject matter, no better evidence can be obtained. In these cases, where the event is likely to be perceived as a whole impression (e.g., intoxi- cation, speed) rather than as more specific components, opinions by lay witnesses are generally admitted.

Question 15

When lay opinion testimony is admissible

Answer 15

(i) It is rationally based on the perception of the witness;

(ii) It is helpful to a clear understanding of her testimony or to the determination of a
fact in issue; and

(iii) It is not based on scientific, technical, or other specialized knowledge (if so based, the witness’s testimony would need to meet the requirements for expert testimony stated in Rule 702).

Question 16

Procedure for lay opinion witness testimony

Answer 16

Unless waived by a failure to object, a proper foundation must be laid by showing that the witness had the opportunity to observe the event that forms the basis of her opinion. Additionally, the court in its discretion may require a witness to state the facts observed before stating her opinion.

Question 17

Situations where opinions of lay witnesses are admissible

Answer 17

1. General appearance or condition of a person
2. State of emotion
3. Matters involving sense recognition
4. Voice or handwriting identification
5. Speed of moving object
6. Value of own services
7. Rational or irrational nature of another’s conduct (sanity)
8. Intoxication

Question 18

Situations where opinions of lay witnesses are not admissible

Answer 18

1) Agency or Authorization
When agency or authorization is in issue, the witness generally may not state a conclusion as to her authorization. Rather, she must be asked by whom she was employed and the nature, terms, and surrounding circumstances of her employ-ment.

2) Contract or Agreement
When the existence of an express contract is in issue, a witness generally may not state her opinion that an agreement was made. Rather, she must be asked about the facts, the existence or nonexistence of which establish whether a contract existed.

Question 19

Four requirements of expert testimony

Answer 19

1. Subject matter must be appropriate
2. Witness must be qualified as an expert
3. Expert must possess reasonable probability regarding his opinion
4. Opinion must be supported by proper factual basis

Question 20

Expert testimony - Subject matter must be appropriate

Answer 20

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 (i.e., it must “fit” the facts of the case); and

(ii) The methodology underlying the opinion must be reliable (i.e., the proponent of the expert testimony must satisfy the trial judge by a preponderance of
the evidence that (a) the opinion is based on sufficient facts or data; (b) the opinion is the product of reliable principles and methods; and (c) the expert has reliably applied the principles and methods to the facts of the case).

Question 21

Expert testimony - Witness must be qualified as an expert

Answer 21

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. [Fed. R. Evid. 702]

Question 22

Expert testimony - Expert must possess reasonable probability regarding his opinion

Answer 22

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.

Example: It would be error to permit plaintiff’s medical expert to testify that
plaintiff’s symptoms “suggested” diabetes and “indicated” that the disease was caused by the accident.

Question 23

Expert testimony - Opinion must be supported by proper factual basis

Answer 23

The expert’s opinion may be based upon one or more of these three possible sources of information:

(i) facts that the expert knows from his own observation;

(ii) facts presented in evidence at the trial and submitted to the expert, usually
by hypothetical question; 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.

Note that the 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. [Fed. R. Evid. 705]

Question 24

Personal observation of expert witness

Answer 24

If the expert has examined the person or thing about which he is testifying, he may relate those facts observed by him and upon which he bases his opinion. [Fed. R. Evid. 703]

Example: An expert may testify that he examined plaintiff’s leg
following the accident, and in his opinion the plaintiff sustained a compound fracture.

Question 25

Facts made known to expert at trial

Answer 25

The expert’s opinion may be based upon the evidence introduced at the trial and related to the expert by counsel in the form of a hypothetical question. The hypothetical question may be based on facts derived from any of the three sources of information noted above. Federal Rule 705 adopts the modern trend in providing that the hypothetical question need not be asked.

Question 26

Facts made known to expert outside of court

Answer 26

Under Federal Rule 703, the expert may base an opinion upon facts not known personally but supplied to him outside the courtroom (e.g., reports of nurses, technicians, or consultants). The Federal Rule further provides that 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.

Question 27

Opinion embracing the ultimate issue in a case

Answer 27

Opinion May Embrace Ultimate Issue

Federal Rule 704(a) provides: “An opinion is not objectionable just because it embraces an ultimate issue.” Note, however, that to be admissible under the Federal Rules, the expert opinion must “help the trier of fact” to understand the evidence or determine a fact in issue. Thus, an expert’s conclusion that “X had testamentary capacity” is still inadmissible because it is not helpful to the jury.

Exception—Criminal Defendant’s Mental State
The Federal Rules prohibit ultimate issue testimony in one situation: In a criminal case in which the defendant’s mental state constitutes an element of the crime or defense, an expert may not state an opinion as to whether the accused did or did not have the mental state in issue. [Fed. R. Evid. 704(b)]

Question 28

Expert witnesses and authoritative texts and treatises

Answer 28

An expert may be cross-examined concerning statements contained in any scientific publication, as long as the publication is established as reliable authority.

For example, the witness may be asked, “Doesn’t Dr. Killum, in his book on diseases of the pancreas, disagree with your conclusion here?” A publication may be established as reliable by: (i) the direct testimony or cross-examination admission of the expert, (ii) the testimony of another expert, or (iii) judicial notice. Thus, even if the expert refuses to recognize the text as authoritative, it can be used on cross-examination if its reliability is established by one of the other methods.

Question 29

Necessity for cross-examination of opinion witnesses

Answer 29

Cross-examination of adverse witnesses is a matter of right in every trial of a disputed issue of fact. It is recognized as the most efficacious truth-discovering device. The principal basis for excluding hearsay is that the declarant whose testimony is offered cannot be subjected to the test of cross-examination. If adequate cross-examination is prevented by the death, illness, or refusal of a witness to testify on cross-examination, the direct examination is rendered incompetent and will be stricken.

Question 30

Scope of cross-examination of opinion witnesses

Answer 30

Although a party is entitled as of right to some cross-examination, the extent or scope of cross-examination, like the order of calling witnesses, is frequently a matter of judicial discretion. Cross-examination is hedged about by far fewer rules than is direct examination. On cross-examination, leading questions are permissible, as are, obviously, efforts at impeachment. The most significant restriction is that the scope of cross-examination cannot range beyond the subject matter of the direct examination. This restriction does not apply to inquiries directed toward impeachment of the witness.