Testimony, Best Evidence, & Privilege Flashcards
Lay Testimony — FRE 701
If a witness is not testifying as an expert, their testimony is LIMITED to one that is
1. based on firsthand knowledge (W’s perception
2. Helpful to the jury
- Jurors can’t judge the matter for themselves
- Opinion adds information
3. Not based on scientific, technical, or other specialized knowledge
- Not something that needs an expert to explain
Ask: is this something a normal person using normal perception could figure out? If so, it is within the realm of lay testimony.
Commonly admitted lay opinions
Appearance or condition (age, sick, strong, etc.)
Sense recognition
Handwriting or voice ID’s (with proper foundation)
Emotional states
Speed of vehicle
Intoxication
ID of drugs
- But origin/details are not okay
Requirements for Expert Testimony (list analysis)
- Qualifications — the witness must have the proper knowledge, skill, experience, training, or education (FRE 702)
- Proper topic/Helpfulness – must be “beyond the ken” of jurors
- Sufficient factual basis (FRE 702(b) and 703)
- Reliable methods (Daubert)
- 403
Requirements for Expert Testimony: (1) Qualifications
the witness must have the proper knowledge, skill, experience, training, or education (FRE 702)
Your own life experience can make you an expert (i.e. guy who smoked weed over 1000 times)
Judge has to do the initial 104(a) screening of requisite qualifications before it can even go to the jury – judge is the gatekeeper.
Requirements for expert testimony: (2) Proper topic/helpfulness
must be “beyond the ken” of jurors
Advisory Committee Note on “Helpfulness”
Best test is whether an untrained layperson could determine the particular issue intelligently without enlightenment from people who specialize in the subject. If excluded, it’s due to superfluousness (waste of time).
Non-examples:
“When the floor is wet, it’s dangerously slippery”
Similarity between Match and Macho
Requirements for expert testimony: (3) sufficient factual basis
Bases of an Expert – FRE 703
Expert may base opinion on facts/data that the expert has:
1. Personally observed (e.g. a fiber analysist who examined torn clothing under a microscope)
2. Been made aware of at the trial or hearing
- - Expert may watch trial and rely upon testimony and exhibits
- - Expert may answer hypothetical questions (“Doctor, if you assume “x” and “y,” what is your opinion regarding . . .”)
3. Been made aware of prior to the trial or hearing
If the facts/data are otherwise inadmissible, they may only be disclosed to jury if they satisfy “reverse 403” standard (probative substantially outweighs prejudice)
Ex: Doctor can base his opinion on hearsay allegation from patient’s mom, but jury likely won’t be allowed to hear that allegation (and if it does, there’s a limiting instruction – in this case, only for the purpose of evaluating the doctors’ conclusions, NOT to establish the truth of the accusation) (In re Melton)
Requirements for expert testimony: (4) reliable
(Daubert)
The expert’s testimony must be “the product of reliable principles and methods . . . Reasonably applied . . . To the facts of the case.” (FRE 702(c))
Daubert
applies to ALL expert testimony, not just scientific - Kumho Tire
Trial judge should act as a gatekeeper
And determine (under 104(a) standard) whether expert is proposing to testify to:
1) scientific knowledge that
2) will assist trier of fact to understand or determine a fact in issue
^ If so, trial court makes a preliminary assessment of reliability and relevance. Considers whether reasoning or methodology is
1. Scientifically valid AND
2. Can be applied to the facts in issue
^^ trial judge has a wide latitude in making this determination
Requirements for expert testimony: (4) reliable. Daubert factors
Daubert Factors to help court with reliability determination: (not an exhaustive list)
(a) Has the theory or method been tested?
(b) Peer review and publication?
(c) Known or potential error rate of scientific technique?
(d) Standards controlling operation technique?
(e) General acceptance? – (no longer NECESSARY precondition, as under Frye, but may be considered).
Not all Daubert factors will apply to every case
Limitations on Expert Opinion:
Experts may not usurp the judge’s role
1 Like the expert that defined physical force – made a legal conclusion
Experts may not usurp the jury’s role
1 Can’t make credibility determinations! (State v. Batangan)
Experts generally may not give legal opinions
1 Can tell you about their take on the reconstruction of the crime, but cannot say the person was “negligent”
Experts must help the jury, not merely tell the jury what conclusion to reach
1 The expert is allowed to give opinions that touch upon ultimate issues, but it is improper when the expert tries to substitute opinion on intent for jury’s opinion
In CRIMINAL cases, experts must not opine about whether D did or did not have a mental state of condition that constitutes an element of the crime or defense.
1 Ex: the Sudafed and Meth case – cannot discuss the D’s intent to make meth.
2 Often seen in a lot of insanity cases 🡪 can’t reach the conclusion for the jury that this person was mentally insane.
Why exclude experts based on reliability? Why not just let the cross-examination take care of it?
Expert testimony has an aura that other testimony does not have
In other areas, say this is an issue of weight, not admissibility, but experts are one area where there is too great a risk a jury will place a high amount of weight on what turns out to be junk science (just trying to week out junk)
Authentication — FRE 901
Standard
To prove this ^ 901(a) only requires the proponent to “produce evidence sufficient to support a finding that the item is what the proponent claims it is.”
This is Huddleston standard 104(b)
- Reasonable jury COULD find to a preponderance of the evidence that the item is what the proponent claims it is.
State v. Oreckinto – quote i want to use
Note = do not confuse authentic with admissible. Admissible evidence must be authentic, but authentic evidence is only a necessary (not sufficient) condition of admissibility.
Best evidence rule — FRE 1002
An original writing, recording, or photograph is required in order to prove its contents unless rules or a federal statute provides otherwise.
PROVE ITS CONTENTS. If the witness is testifying to their PERSONAL knowledge, they aren’t trying to prove the contents.
When does this rule apply?
1. Where the writing itself is at issue
- Often this is when the writing is a legally operative instrument
- Ex: plublished writing in a libel action or copyright infringement suit; written contract; will; divorce decree; deed.
2. Where the knowlege of the witness comes from having read/seen the writing, recording, or photo (aka: when the litigant is trying to prove the event through the evidence).
- Be sure to ask: is there personal knowledge of the testifying witness or not? If not, may have a problem.
- Ex: Warehouse owner views security footage next day that is testifying as to what he saw on the footage; agent who learns of ship’s origin from GPS printout
Rule does NOT APPLY
When the fact to be proved exists independently of the writing/recording/photo. Just because it was also recorded or documented does not turn the situation into best evidence rule. (personal knowledge)
Ex:
- Hear a witness testify, you can testify as to what you heard without producing transcript.
- You can testify to birth date without birth certificate
- Can testify about investigation without offering your police report
Why have the best evidence rule
Originally to prevent fraud. Today, much broader policy. Oral testimony has a greater risk of error regarding details. If the CONTENTS of the writing are WHAT YOU’RE TRYING TO PROVE, the original is more reliable than testimony or reproductions.
When do we allow for exceptions to best evidence rule? — FRE 1004
(a) all originals are lost or destroyed, and not by the proponent acting in bad faith
(b) original cannot be obtained by any available judicial process (beyond the reach of the courts)
(c) party against whom the original would be offered had control of it, was on notice that the original would be subject of proof at trial/hearing, and fails to produce it
(d) writing, recording, or photograph is not closely related to a controlling issue
Privileges in FRCP
Federal Rules have no specific privilege provisions
Rule 501: The common law – as interpreted by United states court in light of reason and experience – governs a claim of privilege unless any of the following provides otherwise: The US Constitution, a federal statute, or rules prescribed by the Supreme Court
But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.
Translation: Case law has built the privileges that federal courts recognize & apply
Federal courts currently recognize a number of privileges: (not exhaustive)
Attorney-client
Confidential marital communications & spousal immunity
Psychotherapist-patient
Clergy-penitent
