Rule 701-705 Flashcards
Rule 701
Opinion testimony by lay witness
Testimony in the form of an opinion is limited to one that is:
- Rationally based on the witness’s perception (personal knowledge)
- Helpful to a jury, and
- Not based on scientific, technical, or other specialized knowledge.
A business owner can talk about his own business, and that will be particularized knowledge
Cannot be expert opinion → cannot use this rule to circumvent notice requirement for expert witnesses
Particularized = something a witness can give an opinion about because they may be exposed to it in their everyday life.
Rule 702
Expert testimony is admitted if the court finds by a preponderance of the evidence that the method used by the expert is reliable and that the application of the method used is relevant to the case.
Expert Qualifications:
- Knowledge
- Skill
- Training
- Education
- Personal experience
Rule 702 & 704: Improper topics of expert testimony
Improper topics are:
- Matters of common knowledge
- Opinions on law
- Opinions on ultimate issues – although not completely barred
- Credibility of witnesses
Matters of common knowledge
If it is a matter of common knowledge then jury doesn’t need the testimony
Opinions on law and opinions on ultimate issues
Opinions on law are inappropriate because the judge will tell the jury the law, etc. (Foreign law is an exception)
Ultimate issues are not completely barred: In a criminal case cannot testify whether criminal defendant has a mental state that is an element of the crime
Opinions on credibility
Improper to testify about this; the jury needs to make this determination themselves
Expert can testify on common things like behavioral norms under same conditions or false confession. But cannot testify on a witness credibility.
Expert can clear up common misperceptions
Cannot say who they should believe
Expert must be qualified for the opinion he is rendering.
Ex. If doctor then he should not be talking about law enforcement procedures.
Opinions on Eyewitness Identification
Expert cannot testify about reliability of specific eyewitness ID.
Expert can testify to the following to help jury:
- Little correlation between confidence and reliability
- Memory of faces deteriorate very quickly than memory of events
- If given pictures of Defendant one at a time more accurate than all at once because now witness comparing pictures against one another.
Proper bases of opinion testimony
Requirements:
- Expert personally observed
- At trial
- Before trial - Been made aware of
- At trial → given hypothetical facts
- Before trial → hearsay
Expert can rely on inadmissible hearsay to base its opinion if experts on the field would reasonably rely
Makes opinion admissible and thus not hearsay statements
The proponent may disclose statements/facts to jury only if their probative value in having the jury evaluate the opinion substantially outweighs their prejudicial effect (super-modified test)
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.
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.
Frye test (old law): General Acceptance Test
Does this particular science sufficiently establish to gain general acceptance in the particular relevant scientific community.
Cons: Test would not permit opinions on new upcoming technology because it has not yet gained general acceptance in the scientific community.
Pros: More uniformity and experts on that field/community deciding whether it was accepted rather than the judge imposing more control on junk science.
Daubert Test (current law): Rule 702
A witness who is qualified as an expert may testify in the form of opinion if:
- The expert’s scientific, technical, or specialized knowledge will help the jury to understand evidence
- The testimony is based on sufficient facts or data
- The testimony is the product of reliable principles and methods
- The expert has reliably applied principles and methods to the facts of the case
Judge is the gatekeeper. Judge decides by the preponderance of the evidence.
Daubert test gives more flexibility for new coming scientific evidence; does not need to be accepted in general community.
Daubert applies to ALL expert opinions not just scientific
Guidelines of the Daubert factors: (not exhaustive)
- Whether the technique can be and has been tested
- Whether it has been subject to peer review and publication
- The known or potential rate of error
- The existence and maintenance of standards controlling the technique’s operation
- General acceptance in the relevant community
- Research that arises from litigation or pre-litigation
- Finally a robust 403 analysis
Appellate Courts are to review lower court rulings on the admissibility of expert testimony only for abuse of discretion by:
- How the trial court goes about determining reliability, and
- Court’s ultimate conclusion whether reliable
How Trial Courts go about determining reliability:
- Pre-trial Daubert hearing
- Help from panel of scientists
- On categorical basis (Judicial notice of particular expert already admissible)
- Can look to other states if judge finds they have performed a complete and pervasive analysis
