Witnesses - Part 2

Question 1

Opinion Testimony - General Policy

Answer 1

• general policy = prohibit admissibility of op ev except in cases where the courts are sure that it’ll be necessary or at least helpful

Question 2

Requirements for Op Testimony by Lay Witnesses

Answer 2

• generally inadmissible

BUT admissible when:
- rationally based on w’s perception
- helpful to a clear understanding of w’s testimony or helpful to determination of a fact in issue AND
- not based on scientific, technical, or other specialized knowledge

Question 3

Common Admissible Ops of Lay Witnesses

Answer 3

• general appearance of a condition or person
• state of emotion of a person
• matters involving sense recognition
• voice or handwriting identification (foundation required)
• speed of moving object
• value of own services
• rational or irrational nature of another’s conduct
• a person’s intoxication

Question 4

Situations Where Opinions of Lay Witnesses Are Not Admissible

Answer 4

• can’t give op as to whether:
  -> they or someone else acted as an agent OR
  -> a contract was made
• rational: these are legal conclusions requiring specialized knowledge
  -> can only testify re the surrounding facts

Question 5

Expert Testimony - Requirements for Admissibility

Answer 5

Proponent must demonstrate to ct that it is more likely than not that:
1) the subject matter is one where scientific, technical, or other specialized knowledge would assist trier of fact
2) op is based on sufficient facts or data
3) op is the product of reliable principles + methods
4) the expert’s op reflects a reliable application of the principles + methods to the facts of the case

Question 6

Qualification as Expert

Answer 6

• expert w must be qualified as an expert -> satisfied if they possess special knowledge, skill, experience training or education

Question 7

Expert Testimony - Factual Basis

Answer 7

Expert op must be supported by proper factual basis -> 3 possible sources of info:
- facts based on expert’s own personal observations
- facts made known to the expert at trial (ex: relayed by counsel in hypothetical q or observed at trial)
- facts not known personally but supplied to expert outside the courtroom + of a type reasonably relied on by other experts in the particular field
-> need not be admissible as ev
-> but if would be inadmissible, proponent of the ev must not disclose them to jury unless ct determines their probative value in helping jury understand expert’s testimony substantially outweighs their prejudicial effect

Question 8

Disclosure of Basis of Expert Op

Answer 8

• unless court orders otherwise, expert need not disclose basis of the op on direct examination
• BUT expert may be required to disclose such info on cross

Question 9

Expert Testimony - Reasonable Probability

Answer 9

• expert must possess reasonable probability re their op
• mere guess or speculation is insufficient

Question 10

Reliability of Expert Testimony

Answer 10

• judge = gatekeeper -> cts determine reliability of all expert testimony
• Daubert factors used to determine reliability of principles + methodologies (though cts have discretion)

Question 11

Daubert Factors

Answer 11

TRAP

• Testing of principal or methodology
• Rate of error
• Acceptance by experts in the same discipline
• Peer review + publication

Question 12

Use of Learned Treatises During Examination

Answer 12

• relevant excerpt from a treatise, periodical or pamphlet may be used during expert testimony
• Under Fed Rules, can be used as substantive ev under exception to hearsay + also as impeachment

Question 13

Limitations Re Use of Treatises

Answer 13

• treatise must be established as a reliable authority by: 1) testimony of expert on stand, 2) testimony of another expert OR 3) judicial notice
• excerpt is read into evidence but can’t be received as an exhibit
• excerpt must be used in context of expert testimony
  -> meaning, it’s called to attention of an expert w during direct examination

Question 14

Opinion on Ultimate Issues

Answer 14

• expert is generally permitted to render an op as to ultimate issue in the case
• BUT in crim case in which def’s mental state constitutes an element of the crime or defense, expert may not state an op as to whether accused did or did not have the mental state in issue

Question 15

Court-Appointed Experts

Answer 15

• court has broad discretion to appoint expert w’s
• on party’s motion or its own, court may order the parties to show cause why experts should not be appointed + may ask the parties to submit nominations
• court may then appoint any expert who consents to act, + court must inform expert of their duties
• expert must advise the parties of any findings they make, + any party may depose the expert, call the expert as a w or cross-examine the expert
• the expert is entitled to reasonable comp as set by the court
• court may authorize disclosure to jury that expert was appoint by ct

Question 16

Exclusion + Sequestration of W

Answer 16

• upon a party’s request, trial judge must order w’s excluded from the courtroom
• judge may also do this on their own motion
• some exceptions though
• judge may also issue order prohibiting disclosure of trial testimony to excluded w’s + prohibiting excluded w’s from accessing trial testimony

Question 17

Exclusion + Sequestration of W - People Judge Can’t Exclude

Answer 17

Judge must not exclude:
1) a party or a designated officer or employee of a party
2) a person whose presence is essential to the presentation of a party’s claim or defense OR
3) a person statutorily authorized to be present

Question 18

Witnesses Called or Examined by Court

Answer 18

• court may examine a party’s witness or call ots own witness
• each party is entitled to cross-examine a w called by the court
• a party may object to court’s examining or calling a w either at that time or at next available opp when jury isn’t present