Witness Flashcards
When may an expert give an opinion?
An expert may state an opinion or conclusion provided that: (i) it is relevant and reliable; (ii) the witness is qualified as an expert; (iii) the expert possesses reasonable probability regarding his opinion; and (iv) the opinion is supported by a proper factual basis. Fed. R. Evid. 702.
As to the factual basis, the expert’s opinion may be based upon one or more of three possible sources of information: (i) facts that the expert knows from his own observation; (ii) facts presented in evidence at the trial and submitted to the expert, usually through a hypothetical question; or (iii) facts not in evidence that were supplied to the expert out of court, and which are the type reasonably relied upon by experts in the particular field in forming opinions on the subject. Fed. R. Evid. 705. When a hypothetical question is posed to an expert, it may be based on the same types of facts mentioned above.
B is correct. When parties pose hypothetical questions to experts, those questions are typically based on facts presented in evidence at trial. A hypothetical question that does not include all clearly significant facts at issue in a case, which are necessary to reliably answering the hypothetical, would, therefore, be irrelevant. Here, the plaintiff admitted that the horseback riding incident occurred but then failed to reference it when asking the orthopedist the hypothetical question regarding the source of the injury. This means any response by the orthopedist would be based on incomplete information and therefore irrelevant to a determination of the cause of the injury.
The fact that the opinion is based on criminal activity does not automatically make it more prejudicial than probative. The court weighs all expert opinions against the Rule 403 balancing test for admissibility.
An expert may give opinion testimony on direct examination without disclosing the basis of the opinion.
FRE 704 states that “An opinion is not objectionable just because it embraces an ultimate issue.” This means that witnesses may be able to give opinions on ultimate issues. However, there are exceptions. For example, a witness will generally not be permitted to give an opinion that amounts to an assertion of how the case should be decided. A qualified expert may help the jury understand facts that are closely related to a rule of law, but an expert will generally be prohibited from applying a legal standard and coming to a conclusion based on that application of the law to the facts.
D is correct. FRE 702 would allow the psychiatrist to give his expert opinion about whether the driver had been mentally unbalanced, but not self-destructive at the time of the crash, because such an opinion would be based on specialized knowledge that would be helpful to the trier of fact in evaluating the driver’s mental state. This would then inform the trier of fact’s determination of whether the crash was intentional or not.
A is incorrect. It is true that if the psychiatrist were being called to testify and evaluate the driver’s credibility, that would be improper - credibility determinations are for the jury to decide. However, the testimony is not being offered to evaluate the credibility of the driver as a witness, but rather, to support a particular finding regarding her mental state at the time of the crash that gave rise to the suit.
Although FRE 704(b) prohibits an expert from testifying that a criminal defendant had or did not have the requisite mental state to commit the crime charged, that rule is applicable to criminal cases only. There is no absolute bar to such testimony in a civil case such as this. Although it may still be impermissible for an expert to give an opinion on the legal outcome of a case, here, the psychiatrist is only looking to testify regarding the nature of the diver’s mental state at the time of the crash, not applying legal rules to come to dispositive conclusions.
C is incorrect. This is an incorrect statement of the law. FRE 705 allows an expert to state an opinion “without first testifying to the underlying facts or data” as long as the other requirements of FRE 702 are met.
Must a prior inconsistent statement be under oath?
No. It may used to attack credibility. But it must be under oath for substantive purposes.
Are Witnesses competent to testify as to items within their first-hand knowledge?
Yes. Witnesses are competent to testify as to items within their first-hand knowledge.
Analysis
The contractor can testify to the amount of pipe, workers, and number of hours spent on the job because these items are based on his first-hand knowledge. The fact that there may be other written evidence on this issue does nothing to preclude the contractor from testifying to items within his first-hand knowledge.
Whether lay witness testimony is acceptable?
Opinions by lay witnesses are generally inadmissible. However, there are many cases where, from the nature of the subject matter, no better evidence can be obtained. In these cases, where the event is likely to be perceived as a whole impression (e.g., intoxication, speed) rather than as more specific components, opinions by lay witnesses are generally admitted.
Under the Federal Rules of Evidence (FRE), opinion testimony by lay witnesses is admissible when: (i) it is rationally based on the perception of the witness; (ii) it is helpful to a clear understanding of her testimony or to the determination of a fact in issue; and (iii) it is not based on scientific, technical, or other specialized knowledge. Fed. R. Evid. 701.
C is correct. If the court determines that the informant has sufficient knowledge and experience to identify the substance of cocaine, then the testimony should be admitted under FRE 701. Such non-expert opinion testimony (if supported by sufficient knowledge and experience) is rationally based on the informant’s perception and would be helpful to determine whether the substance was cocaine, which is a fact in issue. Moreover, lay witnesses are typically allowed to give opinions about matters involving sense recognition, which would include the informant’s testimony about the taste of the substance and experiencing a cocaine-like sensation.
A is incorrect. The informant qualifies as a lay witness who, with sufficient knowledge and experience, may testify as to his opinion regarding whether the substance is cocaine. The informant is not seeking to testify as an expert witness. Because the testimony satisfies the requirements of FRE 701, it is admissible to support the finding that the substance was, in fact, cocaine. It is for the jury to determine what weight to give the informant’s opinion.
B is incorrect. The question is asking whether the informant’s testimony is simply admissible, not whether it would be sufficient to make a prima facie case. As such, it is not necessary to determine whether the testimony would be sufficient for this purpose.
D is incorrect. This answer reaches the correct answer with the wrong reasoning. It puts forth a higher standard than is necessary for determining the admissibility of lay witness testimony. It is up to a judge, not the jury, to determine the admissibility of such evidence. Once evidence has been admitted, the jury may decide how much weight to give it.
Whether a lay witness may testify to handwriting?
Under Federal Rule of Evidence (FRE) 901(b)(2), a non-expert may express an opinion that “handwriting is genuine, based on a familiarity with it that was not acquired for the current litigation.” A lay witness who has personal knowledge of the handwriting of the supposed writer may state his opinion as to whether the document is in that person’s handwriting, thus authenticating it. However, a non-expert cannot become familiar with the handwriting merely for the purpose of testifying.
Whether a witness may be impeached by extrinsic evidence?
When a witness tells a story at trial, the opposing lawyer will often confront him with a previous out-of-court statement, in which the witness told a different story. Such an impeachment use of an out-of-court statement is not hearsay, because the out-of-court statement is introduced not for the purpose of showing that it contains the truth, but rather, to suggest that a witness who changes his story is not credible.
Under Federal Rule of Evidence (FRE) 608(b), regarding a witness’s character for truthfulness or untruthfulness, “extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of: (i) the witness; or (ii) another witness whose character the witness being cross-examined has testified about” (emphasis added).
Hearsay: voice recognition and handwriting verification
A voice, whether heard firsthand or through a device (e.g., a tape recording) may be identified by the opinion of anyone who has heard the voice at any time. Thus, in contrast to the rule for handwriting verification, a person can become familiar with a voice after litigation has begun and for the sole purpose of testifying.
Statements made during a phone conversation may be authenticated by one of the parties to the call who testifies to one of the following: (i) he recognizes the other party’s voice; (ii) the speaker has knowledge of certain facts that only a particular person would have; (iii) he called, for example, Mr. A’s telephone number, and a voice answered, “This is Mr. A” or “This is the A residence.” This authenticates the conversation as being with Mr. A or his agent; or (iv) he called the person’s business establishment and talked with the person answering the phone about matters relevant to the business. This is sufficient to show that the person answering the phone held a position in the business. Self-identification by the caller, however, is insufficient evidence to allow for the admission of the telephone call against the speaker.
An incoming telephone call can be authenticated by the identification of the voice, whether heard firsthand or through mechanical or electronic transmission or recording, or by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.
Outgoing telephone calls can be authenticated by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if, in the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone.
