Opinion Testimony

Question 1

Types of Opinion Testimony

Answer 1

• Rule 701 - Lay Opinion Testimony
• Rule 702 - Expert Opinion Testimony

Question 2

Rule 701

Answer 2

• lay witnesses are allowed to express opinions, with certain limitations

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 3

Rule 701 - Limitations on Witness Opinions

Answer 3

• part a means needs to be based on firsthand perception
• part b means needs to be relevant - will it help the jury?
• part c means you can’t use 701 to get around expert requirements

Question 4

Virgin Islands v. Knight

Answer 4

• eyewitness should have been allowed to testify re opinion that firing of the gun was an accident (think the actual case may have come out the other way, but Prof said he thought this was how should’ve been decided)

Question 5

US v. Houston

Answer 5

• gov called special agent, videotape of compound - narrated - said person was defendant and named type of firearm (even though he hadn’t perceived everything firsthand)
• allowed as lay witness testimony rather than expert

Question 6

US v. Freeman

Answer 6

• gov asked agent to narrate tapes of phone convos but also asked what the meaning of the words were
• appeals court said it was okay for the witness to id voices he knew and code/slang, but not okay to tell jury what he thought words like “Did you handle the situation?” meant because that was the jury’s job to decide (wasn’t allowed as lay person or expert)
• needs to be able to provide evidentiary value that the jury wouldn’t be able to provide for themselves

Question 7

US v. Ayala-Pizarro

Answer 7

• officer’s testimony about how drug points operate and how heroin is packaged was considered lay witness testimony rather than expert testimony
• based on his personal experience with the house known as a drug point, drug points generally, and heroin distribution drug points

Question 8

Experts - General Points About Rules

Answer 8

• we have special rules of evidence for experts - deep concern that if you put someone on the stand and say expert, they’ll be overvalued by the jury
• need to be qualified to render the opinion they’re rendering (knowledge, skill)
• BUT once you get the expert past the special rules, they’re allowed to say remarkable number of things (can make judgments based on otherwise inadmissible hearsay)

Question 9

Rule 703

Answer 9

Bases of an Expert’s Testimony

• expert can base opinion on facts or data in the case that the expert has been made aware of or personally observed
• if experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted (ie. expert CAN rely on otherwise inadmissible ev.)
• BUT if otherwise inadmissible, such facts and data can only be disclosed to the jury by the proponent of the opinion if their probative value in helping jury evaluate the opinion substantially outweighs their prejudicial effect

Question 10

Rule 702

Answer 10

Expert Testimony

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

a) expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue
b) the testimony is based on sufficient facts or data
c) the testimony is the product of reliable principles and methods, and
d) the expert has reliably applied the principles and methods to the facts of the case

Question 11

Experts and Disclosure

Answer 11

• disclosure requirements for experts governed by Rule 705 and FRCP 26(a)(2)(B)

Question 12

Rule 705

Answer 12

• unless court orders otherwise, expert may state opinion, and reasons for it, without first testifying to the underlying facts or data
• BUT expert may be required to disclose those facts or data on cross-examination

Question 13

FRCP 26(a)(2)(B)

Answer 13

• requires disclosure of written reports from experts - need to provide the other side with all opinions to be offered and the bases for these opinions
• need to also provide a list of expert’s qualifications, publications within the past ten years, and any cases they’ve testified at within the past 4 yrs
• report needs to include “facts or data considered by the witness” in forming the expert opinions - troublesome because theoretically could include stuff they considered but found unhelpful to your argument -> lawyers sometimes agree by contract to change this to used
• need to provide any exhibits expert will use
• need statement of compensation

Question 14

Gatekeeper for Expert Witnesses

Answer 14

• trial judge -> decides if expert qualified + if the evidence is reliable

Question 15

Motions to Strike Experts

Answer 15

• often many before trial - can challenge as unqualified in general or wrt particular opinions
• can also challenge opinions as not reliably based on facts
• judge may determine that some opinions admissible, some not

Question 16

Rule 704

Answer 16

a) in general, opinion not objectionable just because it embraces an ultimate issue
b) in a criminal case, expert witness must not state opinion whether def did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense (added after Hinkley attempted to assassinate Reagan)

Question 17

Rule 703 - What Gets Disclosed to Jury

Answer 17

• under 703, expert gets to rely on otherwise inadmissible evidence as long as it’s stuff other experts in the field would reasonably rely on
• the judge can decide to disclose this info to the jury IF probative value in helping the jury understand the testimony substantially outweighs its prejudicial effect (balancing test)
• BUT the basis doesn’t come in for the truth - jury is only allowed to use it to help it understand the expert (it doesn’t become admissible, it’s just allowed to be disclosed)
• keep in mind if not in evidence, it only gets into the trial record - doesn’t get into the exhibits that the jury brings with it for deliberations

Question 18

Rule 706

Answer 18

• court can theoretically appoint an expert, but tends not to like this option (don’t want to appear too proactive)

Question 19

Williams v. Illinois

Answer 19

• in a criminal case, it doesn’t violate the Confrontation Clause if an expert relies on hearsay by a witness who doesn’t testify and whose statements were testimonial
• testimony of an expert witness based on a test the expert didn’t perform is admissible + doesn’t violate Confrontation Clause
• prevailing opinion of the court argued not for truth, just to explain the expert opinion (dissent vehemently disagreed - said offered for truth on id of defendant, + prepared for purpose of id’ing defendant)
  -> note that this was a 4-1-4 decision - has resulted in chaos in lower courts

Question 20

Frye v. United States

Answer 20

• original way of evaluating reliability of expert testimony
• based on whether there was general acceptance in the relevant field
• has been replaced in federal courts by Daubert

Question 21

Daubert v. Merrell Dow Pharmaceuticals

Answer 21

• SCOTUS, 1993
• sets out standard used by trial judge to assess whether expert witness’s scientific testimony is based on scientifically valid reasoning which can properly be applied to the facts at issue
• five factors to consider

Question 22

Daubert - Broader Inquiry

Answer 22

• trial judge decides under 104(a) first whether expert is proposing to testify to scientific knowledge (standard of reliability), then second whether the expert’s scientific knowledge will be helpful to the jury in determining/understanding a fact in issue

Question 23

Daubert Factors

Answer 23

• whether the theory or technique in question can be and has been empirically tested
• whether it has been subjected to peer review and publication
• its known or potential error rate
• the existence and maintenance of standards controlling its operation
• whether it has attracted widespread acceptance within a relevant scientific community

Question 24

General Electric v. Joiner

Answer 24

• SCOTUS, 1997
• clarified Daubert - appellate court may still review trial court’s decision to admit or exclude expert testimony
• standard of review for this inquiry is abuse of discretion
• trial judge can conclude too great a gap between conclusions and methods to be reliable (vs. Daubert had initially suggested judge did not need to worry whether the conclusions made sense)

Question 25

Kumho Tire Co. v. Carmichael

Answer 25

• SCOTUS, 1999
• Daubert factors may apply to non-scientific testimony, meaning “the testimony of engineers and other experts who are not scientists”
• the Daubert factors may not be applicable in every case though, just guidance

Question 26

Standard of Review for Reliability of Expert Testimony

Answer 26

• abuse of discretion
• applies to how the judge decides to analyze reliability as well as the ultimate conclusion