Pg 46

Question 1

Is lay opinion testimony considered to be part of expert testimony?

Answer 1

No

Question 2

What is a lay person permitted to testify about?

Answer 2

Can testify in the form of an opinion, but it is limited to what is rationally based on the witness’ perception and helpful to clearly understand the witness’ testimony, or to determine a fact in issue

Question 3

What is the rationale behind the rules for what a lay witness can testify about?

Answer 3

Witnesses are reporting to the jury what happened in the world, and the jury must decide what to think of that report, so we want witnesses to testify to facts, not opinions or conclusions

Question 4

What are some things that a lay witness can testify about without having to be an expert?

Answer 4

Other people’s moods, physical conditions based on their external manifestation, estimating speeds or distances, personal observations of temperature, conclusions drawn from the senses like observing behavior, value of your own property, identify someone else’s handwriting or voice if you have prior exposure

Question 5

What are the two elements that are required for lay opinion testimony?

Answer 5

– Witness’ perception

– must be helpful for the jury to clearly understand the witness’ testimony and to determine a fact in issue

Question 6

Would it be permissible for a lay witness to say in their testimony “it was hot out that day.“?

Answer 6

Yes, even though that is a subjective opinion, it is based on the witness’ personal observation of the temperature and helpful for the jury to understand what the witness experienced, so a commonsense approach allows the witness to testify about it

Question 7

Would it be permitted for a lay witness to testify that, “the car looked like it was doing about 50 km an hour.“?

Answer 7

Yes. Although the witness cannot say with precision how fast the vehicle was going, he can estimate it as long as he is the legal age to drive, not part of a community that doesn’t drive or see cars, and has some basis to estimate a speed because he has seen/driven/ridden in cars for years

Question 8

Is it permissible for a lay witness to say, “I would guess the defendant was doing about 60 km an hour.“?

Answer 8

No. Lay witnesses can make estimates but they cannot guess, because that is speculation that is not based on personal knowledge. It is permissible to say “defendant was driving much faster than is safe on a residential road.“

Question 9

Is it permissible for a witness to testify that someone “appeared drunk“?

Answer 9

Yes, lay witnesses can make a conclusion drawn from their senses like observing behavior. Witness just needs to have a basis in experience by either being drunk or being around drunk people to correlate drunkenness.

Question 10

Would it be permissible for a lay witness to say “defendant was driving like a drunk driver“?

Answer 10

No, you cannot tell the jury what their conclusion should be. You can say “defendant was swerving erratically between lanes and took a corner so fast that the tires screeched and the car tilted to one side.“

Question 11

Is it permissible for a lay witness to testify that someone “appeared angry“?

Answer 11

Yes, most people can read facial cues and body language of others to sense emotions then are permitted to testify about it. Ie: furrowed brow, gritted teeth, clenched fists

Question 12

Is it permissible for a lay witness to testify that someone “was angry“?

Answer 12

No, because a witness can only know how another’s emotional or mental state showed itself based on the person‘s facial expressions/body language/words/actions. The witness cannot testify to what is actually in another’s head

Question 13

Is it permissible for a lay witness to testify that someone “seemed confused“?

Answer 13

Yes, because that is based on a personal observation of the defendant’s demeanour

Question 14

Is it permissible for a lay witness to say “defendant was confused“?

Answer 14

No, because that is impermissible speculation. ***Although some judges may think of this as being the same as “seemed” confused, so you might be able to get away with it.

Question 15

Is it permissible for a lay witness to testify to someone’s physical state?

Answer 15

Yes you can testify about whether someone appeared conscious or not because this is an opinion based on personal observation and it is helpful to the jury’s understanding

Question 16

Is it permissible for a lay witness to testify to the value of his own property?

Answer 16

Yes, but not to anyone else’s property

Question 17

Is it permissible for a lay witness to testify about the identity of someone’s voice or handwriting?

Answer 17

Yes, if the witness has prior exposure. For handwriting, you must gain familiarity for a purpose besides litigation

Question 18

Is it permissible for a lay witness to testify to legal conclusions?

Answer 18

No. You can say you saw an accident and that the defendant caused it, but you cannot say the defendant was negligent/liable/driving recklessly, etc.

Question 19

What are the rules about expert opinion?

Answer 19

A witness that is qualified as an expert by knowledge, skills, experience, training, or education may testify in the form of an opinion or otherwise if the expert’s scientific, technical, or specialized knowledge will help:

• the trier of fact to understand the evidence or to determine a fact in issue
• the testimony is based on sufficient facts/data
• the testimony is a product of reliable principles/methods
• the expert has reliably applied the principles/methods to the facts of the case

Question 20

What is the difference between California and the FRE when it comes to expert opinion?

Answer 20

In California they apply the “General Acceptance Test”: if the opinion doesn’t involve novel scientific techniques or principles, then the court uses a straightforward analysis of whether it was based on the type of data reasonably relied on by experts in the field

Question 21

What are the elements necessary for an expert to give opinion testimony?

Answer 21

– Qualification of the witness
– helpfulness
– reliable data
– reliable methods
– reliable application

Question 22

What is necessary for the element of qualification of the witness for expert opinion?

Answer 22

The witness can testify if he is qualified as an expert by his knowledge, skills, experience, training, or education. This can come from degrees or practical knowledge

Question 23

If an expert only read “pediatric pathology for dummies” is that enough to make him qualified?

Answer 23

No

Question 24

What is involved in the helpfulness element of expert testimony?

Answer 24

The expert’s scientific, technical, or specialized knowledge will help the trier of fact to understand evidence or determine a fact in issue. This doesn’t require that the jury be ignorant on an issue, but the expert must have specialized knowledge that a lay juror doesn’t have.

Question 25

Is it necessary that an expert gives opinion about something that is scientific or technical?

Answer 25

No, it can be unscientific or non-technical. I.e.: a studio executive from a competing studio can testify to the common practice in the industry.

Question 26

What is involved in the reliable data element for expert opinion?

Answer 26

Testimony is based on sufficient/reliable facts/data

Question 27

If an expert doesn’t review any documents or images himself, or examine the victim, but he just listens to an attorney relay the facts of the case on the phone and then formed his opinion from that summary, would that be enough to be considered reliable for an expert opinion?

Answer 27

No because the testimony would not be based on sufficient/reliable facts or data since the non-medical professional summary of medical reports would not be reasonable data to base an expert opinion on

Question 28

What is the criminal mental element carveout for the element of reliable data in an expert opinion?

Answer 28

In criminal cases, experts cannot give an opinion about whether the defendant had or didn’t have the mental element of the crime or defense. That is for the trier of fact to decide

Question 29

If a defendant is charged with murder which requires premeditation, can an expert testify that based on his interview with the defendant and medical records, he thinks the defendant would have a hard time planning or visualizing anything weeks ahead of time, so would have a hard time planning a murder far in advance?

Answer 29

Yes, that is fine because the expert didn’t give an opinion about whether the defendant had the mental elements of the crime

Question 30

Would it be permissible for an expert to give an opinion in a murder case that “the defendant is unable to premeditate.“?

Answer 30

No, because the expert is giving an opinion about whether the defendant had or didn’t have the mental element of the crime or defense, and that is for the trier of fact to decide, not for the expert to say. If this happened it would be stricken

Question 31

Is it permissible for an expert to testify to an ultimate issue in the case?

Answer 31

No. The expert can say “defendant understood his actions were wrongful despite his history of trauma and low IQ.“ But he couldn’t say “defendant couldn’t have formed the intent needed to commit these crimes.“

Question 32

What is required for the reliable methods element of expert opinion?

Answer 32

Testimony must be the product of reliable principles and methods

Question 33

If an expert testifies that the theory he is relying on is his own and is not adopted by other experts or in any publication, is that enough for it to be considered reliable to be used as a method to determine an expert opinion?

Answer 33

No that would not be considered unreliable

Question 34

What is involved in the element of reliable application for expert opinion?

Answer 34

The expert must reliably apply the principles and methods to the facts

Question 35

What does it mean that a judge has gatekeeping abilities regarding expert witnesses?

Answer 35

The judge can make his own independent assessment of the reliability of an expert opinion and determine if it is reasonable for a jury to rely on the expert’s opinion before he lets the jury hear it. This keeps out junk science and unreliable expert opinions. The judge doesn’t have to conclude that the opinion is ultimately correct, he just needs a reliable basis

Question 36

What are some factors for a judge to consider in deciding if an expert opinion is reliable?

Answer 36

If there are publications on the topic of the expert’s testimony, if there is widespread acceptance of a theory in the relevant community, etc.

Question 37

What is the rule about experts testifying to legal conclusions?

Answer 37

Experts are allowed to embrace an ultimate issue, but they cannot testify as a legal conclusion. This is because bald conclusions are not helpful to the trier of fact.

Question 38

An expert can testify to the likely cause of an accident, but he can’t testify about what?

Answer 38

Whether the party was negligent or legally responsible because that is a legal conclusion

Question 39

Is it permissible for an expert to testify that a person lacks capacity to write a will?

Answer 39

No, because that would mean that the expert testified to a legal conclusion

Question 40

If an expert used methodology approved in the field for 80 years to determine lost wages, but only considered the plaintiff’s self reports about pain, and not medical reports, would that be permissible?

Answer 40

No because although the expert use reliable methods, he didn’t apply them to reliable data

Question 41

If an expert used medical reports to form an opinion, but then tore them up and looked at the tear patterns to determine the permanence of the plaintiff’s injuries, would that be acceptable testimony?

Answer 41

No, although he used reliable data, he used unreliable methods