Experts and Privileges Flashcards
When is lay opinion testimony admissible?
1) Rationally based on witness’ perception
2) Helpful to the jury understanding the witness’ testimony/determine a fact in issue
3) Not based on specialized knowledge
When is expert opinion testimony admissible?
Expert is qualified through education, experience, etc. (knowledge, skills, training), AND
1) Specialized knowledge would assist the trier of fact
2) The opinion is based on sufficient facts or data
3) The opinion was reached based on reliable principles or methods
4) The opinion reflects a reliable application of principles/methods to the facts
What are the Daubert factors for determining when the methods/principles used by experts are reliable?
Testing of principle/method, Rate of error, Acceptance by experts in the same field, Peer review and publication (TRAP)
When can experts rely on HS and other inadmissible evidence to develop their opinion?
When such data would be reasonably relied on by those in the experts field (same type/form of data in a non-legal context).
When can inadmissible basis evidence be offered to the jury to help them evaluate the expert’s opinion?
When the probative value of the inadmissible basis evidence substantially outweighs its prejudicial effect.
What is the rule regarding whether/when experts must reveal the factual bases for their opinions?
Experts do not have to reveal the factual bases for their opinion unless the judge orders them to, but opponents may ask about the factual bases on cross.
When may experts offer opinions on the ultimate issue in a case?
Always, except when the ultimate issue is state of mind in a criminal case. (state of mind element of crime)
What are ways to waive a privilege?
1) Failure to assert privilege
2) Voluntary disclosure of a confidential communication
3) A contractual provision waiving the right to claim a privilege
What type of communications are covered by the marital-communications privilege?
Communication between spouses during a valid marriage, as long as there is a reasonable expectation of confidentiality.
Who is the holder of the marital-communications privilege?
Both spouses, or, in some jdx. only the spouse who is the criminal def.
What is the marital-testimonial privilege?
Prevents one spouse from being compelled to testify against the other in a criminal case.
Who is the the holder of the marital-testimonial privilege?
The potential witness spouse
What are the elements of the attorney client privilege?
The privilege protects
(1) Confidential communications
(2) Between an attorney and their client, or the representatives of either
(3) During a professional legal consultation
(4) When privilege has not been waived and is not subject to an exception
What are the exceptions to the attorney client privilege?
Privilege doesn’t apply when client sought attorney’s help in planning/commission of a crime or fraud, when client puts legal services at issue in a case, when there is a dispute between an attorney and a client, or where two parties are claiming through the same deceased client
In what instances do neither marital privilege apply?
When communications were made in furtherance of a joint crime/fraud, in disputes between spouses, or when one spouse is accused of a crime against the other spouse or either spouse’s children
What are the elements of the physician-patient privilege?
The physician-patient privilege applies to confidential information where:
1) There is a professional relationship between the patient and the doctor for purposes of medical diagnosis
2) The communication was made for the purposes of seeking medical treatment or diagnosis
3) The communication was necessary for the doctor to provide medical treatment or diagnosis
How can a learned treatise be determined to be an established and reliable authority?
By direct testimony of an expert witness or by judicial notice
