Opinions and Expert Testimony

Question 1

May a lay person give opinion testimony?

Answer 1

If a witness is not testifying as an expert, testimony in the form of opinion is limited to one that is:

1. rationally based on the witness’s perception;
2. helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and
3. not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

FRE 701.

Question 2

What are some opinion testimony that a lay person may give?

Answer 2

VEMPSS
Value of one's land;
Emotional state of others;
Measurements;
Physical states;
Sensory descriptions; and
Sanity of a testator.

A lay person may not give opinions in conclusory terms. Legal conclusions must be avoided.

Question 3

What sorts of testimony may a expert witness give?

Answer 3

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:

1. the expert’s scientific, technical, or other specialized will help the trier of fact to understand the evidence or to determine a fact in issue;
2. the testimony is based on sufficient facts or data;
3. the testimony is the produce of reliable principles and methods; and
4. the expert has reliably applied eh principles and methods to the facts of the case.

Federal courts and some states apply Daubert. The reliability of scientific evidence is asking the following:

1. Has the methodology been tested?
2. Are there known rates of error?
3. Has the methodology been generally accepted?
4. Has the methodology been subject to peer review?

TAPES.

FRE 702.

Question 4

What about the bases of expert opinion?

Answer 4

There are three bases of opinion testimony:

1. Personal knowledge at or before trial;
2. Facts presented to the expert at trial (hypo); and
3. Facts presented to the expert outside of court.

An expert may base an 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.

However, if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect. The opponent is allowed to bring up such facts without the balancing test.

FRE 703.

Question 5

May a proponent disclose the underlying facts or data of an expert opinion?

Answer 5

An expert may state an opinion and the reasons for it without first testifying to the underlying facts or data, but the expert may be required to disclose those facts and data on cross-examination.

Experts may properly be cross-examined as to:

1. qualifications;
2. subject matter and basis of an opinion; and
3. compensation.

Experts can be impeached.

FRE 705.

Question 6

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

Answer 6

As a general rule, an opinion is not objectionable just because it embraces an ultimate issue. However, an opinion cannot state a legal conclusion.

EXCEPTION: In a criminal case, an expert witness must not state an opinion about whether the D did nor did not have a mental state or condition that constitutes an element of the crime charged or of a defense.

FRE 704.

Question 7

Are courts allowed to appoint experts?

Answer 7

On a party’s motion or on its own, the court may order the parties to show cause why expert witnesses should not be appointed and may ask the parties to submit nominations. The court may appoint any expert that the parties agree on and any of its own choosing, but the court may only appoint someone who consents to act.

Either party has a right to depose the court-appointed expert and cross-examine him.

FRE 706.