Federal Rules of Evidence – Opinion and Expert Testimony


Federal Rules of Evidence Law School Supplements

Federal Rules of Evidence Law School Supplements

 

Opinion and Expert Testimony

 

A. Lay Opinion Testimony:

  • Class Notes:
    • My Cousin Vinny: Ms. Vito was an expert on automobiles. You dont need to have credentials to be an expert
    • Doesnt have to be scientific knowledge from 702
    • RULE 701 is much more generous with Testimony by lay-witnesses
      • (a)
      • (b) Helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and
      • (c) Not based on scientific, technical, or other specialized knowledge within the scope of Rule 702 Can’t “Dress up an expert as a lay witness”
      • CAN a witness be both a lay witness AND an Expert? Yes, eg an orthopedic surgeon sees a car accident, and also testifies as to his specific medical injuries
    • Utilize expert to assist me in telling story
    • Rule 704:
      • (a) You can go right to ultimate issue
        • At common law witness could not testify to ultimate issue
      • (b) Experts can’t testify to mental state
        • This came after Reagan’s trial where shooter was found insane
  • Problem 9-A
    • Person looking for a car blower upper…
    • Allow: Rationally based on her perception, just because its not based on scientific knowledge it should be allowed; no its not speculation
    • Don’t Allow: She has no basis to make that argument; no evidence to support her conclusion; BUT it’s speculation, we don’t allow lay-witnesses to speculate (experts might speculate)
      • ANSWER: Probably Don’t Allow → exclude it. While her determination does go to a fact at issue. The facts underlying her impression do not have a rational basis. IF you really wanted to get in then LAY MUCH MORE FOUNDATION to sneak this one in.
  • Pg 616, The Watchful Neighbor
    • Object When Appropriate
      • First Question Could be Leading (On porch swing)
      • Ballet → Objection, no Foundation that she was going to Ballet (BAD idea, this could invoke a sob story)
      • I think that’s him over there: Objection, lay witnesses can’t speculate
      • Objection: Speculating on his speed.
        • Overruled, this is rationally based on her opinion of his speed
      • Usual Speed Limit?: Object, its not the lay-witnesses job to say what the law is eg the speed limit…go look or ask the city speed limit planner
        • Judges don’t like to be told what the law is
      • Smelled like Pot, must have been smokin’ a J: Objection, no foundation. How do you know what pot smells like. Oh, now let me tell you I’m an expert on Pot…now she’s potentially an expert on pot.
  • General Notes:
    • Lay witnesses testify to facts not opinions based on facts
      • Common law approach was to maintain the dichotomy
    • 3 Reasons for separating fact from opinion in Common Law Approach:
      • 1) Misreading of Old English precedents which sometimes expressed the requirement of firsthand knowledge by rejecting opinion testimony
      • 2) Emergence of expert witnesses who could give opinion created idea that lay witnesses lack special training of experts and therefore shouldn’t be allowed to give opinion testimony
      • 3) Trier of fact should draw its own conclusions
    • FRE Approach:
      • Rule 701 does NOT maintain dichotomy and allows opinion testimony when rationally based on witnesses’s perception and is helpful to trier of fact in understanding testimony
      • Doesn’t invade province of jury because all opinion testimony speaks to issue that must be resolved and jury must determine what to believe
      • In spirit of rules and considerations, modern reviewing courts have approved opinion testimony in the following sorts:
        • 1) In deciding not to promote Y, M did not base his decision on her national origin
        • 2) After accidental fall in stairwell, 10-year old boy underwent “personality change” and his physical, behavioral, and educational performance in school declined
        • 3) The railroad crossing was in poor condition and difficult to get across
        • 4) Claimant was an alcoholic unable to work
        • 5) It seemed that P had time to get out of the way
  • Expert Under the Rules:
    • Who is An Expert:
      • Expert = someone with specialized knowledge
        • Learn EVERYTHING about the expert witness!!! school, yacht, clubs, Facebook, all of it
        • Memorize something from an obscure article that they’ve written
          • Ask them, they say “No thats’s not true…” You sure? “Yup” well didn’t you write the opposite 3 years ago in this article? “Uhhh”
      • Under rule 702, an expert can testify only if what he says will “assist the trier of fact to understand the evidence or to determine a fact in issue.”
      • RULE 702
        • A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
          • (a) the expert’s scientific, technical, or (My Cousin Vinny) other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
          • (b) the testimony is based on sufficient facts or data;
          • (c) the testimony is the product of reliable principles and methods; and
          • (d) the expert has reliably applied the principles and methods to the facts of the case.
        • Key of 702 = Will it assist the trier of fact (jury)?
    • Bases for Expert Testimony:
      • Under FRE 703 expert witness can base testimony on facts or data of 3 sorts, provided that they are “of a type reasonably relied upon by experts in the particular field,” even if not admitted in evidence.”
      • The types include:
        • 1) Firsthand Knowledge: Facts or data that he learns by firsthand observation “before the hearing”
        • 2) Facts Learned At Trial: Facts or data that he learns “at the hearing”
        • 3) Outside Data: An expert may rely on what amounts to outside data, meaning info he gleans before trial by consulting other sources
          • There are sources that the experts can rely upon to give testimony that can’t be relied on or viewed by jury (even though jury can hear testimony)
    • Formal Problems:
      • Rule 704 abolishes common law restriction on expert testimony barring testimony on ultimate issues
      • Mental Condition as Element of Claim/Defense:
        • Amended Rule 704(b) prevents experts in criminal trials from stating opinions that D had or lacked mental state or condition “constituting an element of the crime charge or of a defense.”
    • Presentation of Expert Testimony:
      • Foundation of Expert:
        • Usually calling party brings out
          • 1) educational background, including degree and certificate or license to practice,
          • 2) experience, such as employment or practice in the area, and
          • 3) familiarity w/ subject in suit
      • Qualifying the Witness:
        • Calling party must ask court to “qualify witness as an expert” before he can testify to matters of substance
        • Usually adverse party will stipulate to qualification (if credentials are impressive)
      • Bringing Out Expert Testimony:
        • Rule 705 allows party to ask directly for expert’s opinion w/out disclosure of basis for it court can require it if it so chooses
        • 2 Reasons for allowing testimony w/out first establishing basis:
          • 1) Frustration felt by lawyers, courts and experts alike with the clumsiness of eliciting opinions by hypothetical questions takes too long and gets too complicated/confusing
          • 2) Great stride mad by Rule 703 in permitting the expert to base his opinion on outside information
        • Implications of Approach:
          • 1) Increases importance for cross examination
          • 2) FRCP 26 requires that other side is given notice of opinions and basis ahead of testimony
    • Court Appointed Experts:
      • Rule 706 authorizes court appointed experts
        • Because of concern that jury will give more weight to their testimony, their source of appointment need not be disclosed
      • Class Note:
        • Some courts have started to look to Rule 706 to assist them in this process
        • Court has power to appoint its own expert witness if they choose to do so
      • (c) Disclosure of Appointment:
        • “In the exercise of its discretion, the court may authorize disclosure to the jury of the fact that the court appoint the expert witness
      • Will your expert be able to testify—and pass rigorous challenge?
        • You could win or lose case, depending on whether or not that expert testimony is admissible
    • 702:
      • When expert testimony is based upon science it has to be valid
      • Pronounced “Dow-burt”
      • 1923:
        • In one page opinion District of Columbia decided Frye v. US and lasted 70 years and dealt with expert testimony
        • Court of appeals said testimony had not yet gained general acceptance in field to which it belonged
        • Testimony wouldn’t be allowed unless generally accepted by the scientific community
Category: Evidence, Law School Notes | RSS 2.0 Both comments and pings are currently closed.


Start your own website with an esqjd.com Blog