opinions and expert testimony Flashcards
what to witnesses testify to?
FACTS. opinions are not facts.
*legal conclusions must be avoided and are inadmissible (ex- a contract existed)
when can a non-expert offer opinion testimony
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
the proper scope of a non-expert opinion includes:
(“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)
opinions given by Experts in testimony
(“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
- qualified Person: must have specialized knowledge, skill, experience, training, or education in the subject matter
- proper Opinion: must be based on sufficient facts or data
- Testimony offered in proper form
judge and “spot” requirements
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.
assessing the reliability of scientific evidence (Daubert test)
(“TAPES”)
- has the theory been properly Tested? (if so, how extensively?)
- general Acceptance in the relevant community
- Peer review of the scientific theory
- degree or rate of Error
- Standards
Frye test
*minority
has no elements, but rather, it only requires general acceptance of the test in the relevant scientific/medical/expert community
information that an expert’s opinion can be based on
- personal knowledge at or before trial
- facts presented to the expert at trial (expert sat and listened to witness testimony or is asked hypothetical questions)
- facts presented to the expert outside of court
reasonable reliance rule
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)
Can an expert rely upon inadmissible evidence to support their conclusions?
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
can an expert give opinions on legal conclusions?
No, experts cannot state legal conclusions in their opinions.
(e.g. “he hit the victim with deadly force.”)
can expert give an opinion on an ultimate issue in the case?
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.
examples of permissible opinions on an ultimate issue
-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.
court-appointed experts
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