Federal Rules of Evidence – Opinion and Expert Testimony

Federal Rules of Evidence Law School Supplements

• Evidence Under the Rules, Seventh Edition (Aspen Casebook Series)
• Casenotes Legal Briefs: Evidence, Keyed to Mueller & Kirkpatrick, 7th Edition
• Emanuel Law Outlines: Evidence (The Emanuel Law Outlines)
• Law in a Flash: Evidence 2011
• Evidence: Examples & Explanations, Eighth Edition

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