Opinion and Expert Testimony

Question 1

Opinion Testimony by Lay Witnesses (Rule 701)

Answer 1

If the witness is not testifying as an expert, any testimony he or she gives that is an opinion or an inference must be:

(1) rationally based on perception of the witness
- The testimony must be based on personal knowledge.

(2) Helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue.

Question 2

The proper scope of non-expert opinion includes:

VEMPSS

Answer 2

(1) V: Value
(2) E: Emotional State of Others (If someone was happy/sad)
(3) M: Measurements (Speed of a vehicle, height of a person, and distance between two objects)
(4) P: Physical States (If someone was drunk, tall, short, fat, skinny etc)
(5) S: Sensory descriptions (Smell, taste, color)
(6) S: Sanity of a testator

Question 3

Improper scope of Lay Witness Testimony

Answer 3

Opinions stated in conclusory terms are not appropriate.

EXAMPLE: The plaintiff was contributorily negligent, contract existed, Defendant assaulted victim.

Legal conclusions: must be avoided – whether they were negligent, alcoholic etc

Question 4

Testimony by Experts (Rule 702)

Answer 4

Qualified, Relevant and Reliable

Question 5

Requirements for Qualifications of Expert Witness

Answer 5

S	Special Skills
K	Knowledge
E	Education
E	Experience
T	Training

Question 6

Requirements for Relevance of Expert Witness

Answer 6

Relevance: Subject matter must be appropriate, and the opinion must be helpful/relevant to assist the jury.

Question 7

Requirements for Reliability of Expert Witness

Answer 7

The opinion must be based on reliable methods, devices, or techniques to determine reliability of scientific tests:

(1) other expert testimony (foundation)—battered wife syndrome;
(2) by stipulation—polygraph (some jurisdictions, not Texas);
(3) by judicial notice—radar, ballistics, Breathalyzer; or
(4) general acceptance in the community (Frye Test).

Question 8

Daubert factors include:

Answer 8

(1) T: Tested?
(2) A: Accepted? (General acceptance in the community)
(3) P: Peer Reviewed?
(4) E: Error Rates?
(5) S: Standards?

Question 9

There are three bases for opinion testimony:

Answer 9

a. Personal knowledge at or before the trial
b. Hypothetical Question – Facts presented to the expert at trial (rare)
c. Facts presented to expert outside of court, including reports by others and other items that would be potentially non-admissible evidence

Question 10

“Reasonable Reliance” rule:

Answer 10

These out-of-court facts must be of the type “reasonably relied upon” by other experts in the particular field.

Question 11

Rule 703 Balancing Test

Answer 11

Underlying data that is otherwise inadmissible at trial cannot be revealed unless the proponent shows the probative value of the evidence substantially outweighs its prejudicial effect.

A limiting instruction may be required (Rule 105).

The Rule 703 balancing test is used where the data/facts relied upon consist of otherwise inadmissible hearsay.

The burden is on the proponent. The Rule 703 balancing test favors exclusion (unlike Rule 403).

Question 12

Disclosure of Facts or Data Underlying Expert Opinion (Rule 705)

Answer 12

1. An expert may testify and give reasons without first testifying to the underlying facts or data unless the court requires otherwise. Expert may be required to disclose those facts on cross-exam.
2. This rule serves to avoid using an expert as a conduit for inadmissible evidence and helps to limit the use of hypothetical questions.

Question 13

Opinion on Ultimate Issue (Rule 704)

Answer 13

Generally, an expert may give an opinion or inference, which embraces an ultimate issue

Impermissible - Legal Conclusions

Question 14

Limitation in criminal cases (FRE 704(b)): An expert may not give an opinion as to:

Answer 14

Whether the defendant did/did not posses the mental state that constitutes the element or defense of the crime charged – the jury should determine it