Opinions & Experts

Question 1

Rule 701 (3 Elements)

Answer 1

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.

Foundation:

Personal Knowledge (Compentency)
Opinion based on a rational perception
Helpful to the factfinder
Testimony is not based on scientific, technical, or other specialized knowledge within the scope of Rule 702, i.e., expert witnesses

Question 2

Rule 702 (4 Elements)

Answer 2

Rule 702. Testimony by Expert Witnesses 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) the 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 3

Rule 703

Answer 3

Rule 703. Bases of an Expert

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. But 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.

Question 4

702(c) & 703 Reliability Factors

Answer 4

Daubert Test

Daubert Factor Test for Reliance on Experts:

• Has it been tested / can it be tested?
• Theory/technique subjected to peer review
• Known and potential rate of error and maintenance of standards controlling the techniques operation
• General acceptance

Question 5

Rule 704

Answer 5

Rule 704. Opinion on an Ultimate Issue

(a) In General — Not Automatically Objectionable. An opinion is not objectionable just because it embraces an ultimate issue.
(b) Exception. In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.

Question 6

Rue 705

Answer 6

Rule 705. Disclosing the Facts or Data Underlying an Expert

Unless the court orders otherwise, an expert may state an opinion — and give the reasons for it — without first testifying to the underlying facts or data. But the expert may be required to disclose those facts or data on cross-examination.

(admission of the udnerluying data or facts is subject to rule 403 and does not need to be admissible for the opinion to be admissible)