Opinion Evidence Flashcards
701
opinon testimony by law witnesses: 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 testimony or to determining a fact in issue, and
(c) not based on scientific, technical or other specialized knowledge.
701
D is on trial for insurance fraud. W is man listening to adjuster and D talk where the D says that he is poor and the W testifys that he sounded depressed
- rationally based on the perception of the W?; yes, present for the conversation.
- helpful to clear understanding of W’s testimony/deciding an issue?; yes, makes testimony clearer knowing the tone
- not based on specalized knowledge
AC note: the amendment to this rule is not intended to affect
US v. Yazzie problem 9.2
sold cigarettes to a minor. wants to offer testimony that she believed that the purchaser was of age.
rationally based on perception of the W’s: person they are familiar with- know what they look like- based on perception
Helpful to clear understanding of W’s testimony or determining a fact at issue? clears up perception of buyer at the time of the sale.
Not based on speclaized knowledge- appearance of persons= classif 701 testimony with AC note
US v. Ganier
D has computer ppl say emails not entirely gone (deleted but went into recently deleted)
DA offers tetsimony that software showed that D searched for things being asked for
Issue: is the testimony a 702 expert or 701 lay; software is a very common software that anyone has access to- court says that the software may be common but to be able to run and read these results is farther than lay. after the fact examiniation is generally expert testimony
US v. Paiva
E: testimony of D’s former step-daughter about coke in D’s house
rationally based on perception of the W? yes
Helpful to clear understanding to jury? yes, coke not siezed, shows that it is coke.
not based on specialized knowledge? declarant has special knowledge of coke because she has been a longtime addict.
AC notes: courts have permitted lay witnesses to testify that a substance appeared to be narcotic, so long as a foundation of familirality is established- basaed on personal knowledge
702
Testimony by expert witnesses:
1. is this person an expert?
2. does the factfinder need an expert?
3. does the expert have an adequate basis for the opinion?
4. is the methodology used by the expert reliable?
702
US v. Johnson; Narcos charge- must prove that it came from outside the US. E: says that they know that weed is from colombia because they smoked alot of week
allowed in as expert testimony- give the jury 2 experts and let them figure it out.
very relaxed and probably wouldnt be allowed today
Jinro America v. Secure Investments
civil claim about frozen chicken.
E: who discusses Korean business practices
factual basis: proper basis to form an opinion?; no, used news, polls, marriage not a proper basis for expert opinions
notes: experts likely to be believed by the jury, so exercise caution with them.
problem 9.6
US v. Plunk
narcos case- W is a police detective re: lingo
held: admit as hard core drug trafficking scarcely lends itself to ivied halls. In a rough and ready field as this, experience is likely the best teacher.
Chesebrough v. Fabrege
trademark case, expert in linguistics to compare names (match to macho)
held: no need for expert testimony, as these can be evaluated by laypersons since words clearly different.
can determine if experts are needed if its no more than a common sense inquiry and whether the untrained layman would be qualified to determine issue.
Rosenfeld v. Oceania Cruises; problem 9.9
personal injury case involving slipping on floor
expert that the floor was too slippery when wet and is unsafe
AC test: is this something the untrained layperson could figure out to the best possibel degree without a specialized understanding.
held: matters of coeficcient of friction and what is safe is beyond normal knowledge
Hygh v. Jacobs;
trial for excessive force
E: testimony of professor from EKU. TC admitted- entered a verdict for P.
held: experts testimony regarding the ultimate issue crossed the line and should have been excluded.
Not a 704 issue because you cannot tell the jury what conclusion to reach.
an experts opinion may bear upon the ultimate issue, unless it reaches the point of telling jury what resut to reach.
error here was harmless because overwhelming evidence of misconduct in this case.
experts should not be providing legal standards to the jury
704
an opinion is not objectionable just because it embraces an ultimate issue
State v. Montgomery
held improper opinion on guilt- crossed the line into telling the jury what result to reach
