opinions and expert testimony

Question 1

what to witnesses testify to?

Answer 1

FACTS. opinions are not facts.

*legal conclusions must be avoided and are inadmissible (ex- a contract existed)

Question 2

when can a non-expert offer opinion testimony

Answer 2

if opinion is:
1. based on the witness’s personal knowledge; and
2. the opinion is helpful to understand or determine a fact in issue

Question 3

the proper scope of a non-expert opinion includes:

Answer 3

(“VEMPS”)
-Value of one’s own property
-Emotional state of others
-Measurements (speed of car, height, weight)
-Physical state (tall/short)
-Sensory descriptions (smell, sound, color)

Question 4

opinions given by Experts in testimony

Answer 4

(“SPOT”)
1. Subject matter: must require scientific, technical, or other specialized knowledge, and will help trier of fact to understand evidence or determine a fact in issue

2. qualified Person: must have specialized knowledge, skill, experience, training, or education in the subject matter
3. proper Opinion: must be based on sufficient facts or data
4. Testimony offered in proper form

Question 5

judge and “spot” requirements

Answer 5

to be admissible, judge must find that the 4 spot requirements are satisfied by a preponderance of the evidence before the expert can offer the opinion.

Question 6

assessing the reliability of scientific evidence (Daubert test)

Answer 6

(“TAPES”)

1. has the theory been properly Tested? (if so, how extensively?)
2. general Acceptance in the relevant community
3. Peer review of the scientific theory
4. degree or rate of Error
5. Standards

Question 7

Frye test

Answer 7

*minority

has no elements, but rather, it only requires general acceptance of the test in the relevant scientific/medical/expert community

Question 8

information that an expert’s opinion can be based on

Answer 8

1. personal knowledge at or before trial
2. facts presented to the expert at trial (expert sat and listened to witness testimony or is asked hypothetical questions)
3. facts presented to the expert outside of court

Question 9

reasonable reliance rule

Answer 9

out of court facts that are presented to an expert must be the type “reasonably relied upon” by other experts in the particular field

(ex. a doctor may rely on information from a nurse)

Question 10

Can an expert rely upon inadmissible evidence to support their conclusions?

Answer 10

Yes, but the expert cannot disclose the evidence to the jury unless the court finds that the probative value of disclosure substantially outweighs its prejudicial effect.

*favors exclusion

Question 11

can an expert give opinions on legal conclusions?

Answer 11

No, experts cannot state legal conclusions in their opinions.

(e.g. “he hit the victim with deadly force.”)

Question 12

can expert give an opinion on an ultimate issue in the case?

Answer 12

yes, they may give an opinion or inference that embraces an ultimate issue, but
-it cannot be stated as a legal conclusion
-they cannot give an opinion as to whether the D did/did not possess the required mental state of a criminal crime.

Question 13

examples of permissible opinions on an ultimate issue

Answer 13

-cause of accident, illness, death;

-whether a product is unreasonably dangerous/defective;

-whether a document is forged/genuine;

-whether defendant was insane/mentally ill; or

-whether the doctor’s conduct met that required standard of care in a civil malpractice action.

Question 14

court-appointed experts

Answer 14

the court may, on its own or at the request of either party, appoint expert witnesses

-an appointed expert witness MUST advise the parties of their findings and must submit to a deposition request from either party

-an appointed expert MAY be called to testify and be cross-examined by any party