Opinions and Expert Testimony

Question 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:

Answer 1

rationally based on perception

-Witness must have first-hand knowledge

Question 2

The proper scope of non-expert opinion includes:

6

Answer 2

VEMPSS

(1) Value of one’s land
(2) Emotion
(3) Measurements
(4) Physical States (intoxicated, short, fat tall, healthy)
(5) Sensory Descriptions
(6) Sanity of the testatory (in a will)

Question 3

Improper scope of non-expert opinion

Answer 3

Opinions stated in conclusory terms are NOT appropriate.
EXAMPLE: The plaintiff was contributorily negligent.
EXAMPLE: A contract existed.
EXAMPLE: Defendant assaulted victim.

legal conclusions must be avoided

Question 4

The requirements for testimony are that experts are

Answer 4

(1) Qualified: an expert must have special knowledge, skill, experience, education, or training
(2) Relevant: Subject matter must be appropriate, and the opinion must be helpful/relevant to assist the jury.
(3) Reliability (Daubert Factors)

Question 5

An expert opinion must be based upon

Answer 5

reliable methods, devices, or techniques to determine reliability of scientific tests:

(1) other expert testimony (foundation)—battered wife syndrome;
(2) by stipulation—polygraph;
(3) by judicial notice—radar, ballistics, Breathalyzer.

Question 6

The reliability of scientific tests is determined

Answer 6

by the trial court

Question 7

Daubert factors for expert evidence includes

Answer 7

TAPES

(1) has the theory been TESTED?
(2) Accepted in the relevant community?
(3) Peer-review of the theory
(4) degree of possible ERROR
(5) Standards

Question 8

What factors are used to examine an expert’s theory?

Answer 8

1. Majority = Daubert Factros

2. Minority = Fry (general acceptance in the community)

Question 9

There are three bases for opinion testimony of experts

Answer 9

1. personal knowledge at or before trial of expert
2. hypothetical question give to expert at trial
3. Facts given to the expert outside of court

Question 10

Out of court facts that are given to an expert in preparation for testimony must

Answer 10

be of the type “reasonably relied upon” by other experts in the particular field.

Question 11

What is the effect when out of court facts that the expert relies upon consist of evidence inadmissible at trial?

Answer 11

CANNOT be revealed UNLESS the proponent shows the probative value of the evidence substantially outweighs its prejudicial effect.

Question 12

Does a expert have to testify to the underlying facts or data used?

Answer 12

No, unless the court requires or required to disclose them on cross.

Question 13

Which type of witness can give an opinion on an ultimate issue?

Answer 13

Expert

Question 14

An expert can pass an opinion on the ultimate issue if?

Answer 14

Permissible

(1) cause of accident, illness, death;
(2) whether a product is unreasonably dangerous/defective;
(3) whether a document is forged/genuine;
(4) whether defendant was insane/mentally ill;
(5) standard of care in a civil malpractice action or a crime

Question 15

An expert CANNOT pass an opinion on the ultimate issue if?

Answer 15

(1) legal conclusion that plaintiff was contributorily negligent;
(2) legal conclusions regarding the content of law (i.e., defendant intended to kill the victim).

Question 16

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

Answer 16

(3) in a CRIMINAL case, an expert cannot give an opinion as to whether the ∆ had the mental state or condition that constitutes an element of the crime charged
- determined by the jury

Question 17

If an expert is appointed by the court, what must the expert do?

Answer 17

• Give the parties his findings and an opportunity to depose him
• May be called to testify by either party