Evidence

Front 1

What is the basic rule re: Statements of Opinion, per FRE 701?

Back 1

Unless a witness is testifying as an expert, statements of opinion or inferences are allowed only if they help provide a clear understanding of the testimony or of a fact in issue.
It must also be shown that the opinion or inference is based on some perception by the witness.

Front 2

What is the theory behind the Statement of Opinion Rule?

Back 2

Factual conclusions that are within the grasp or comprehension of the average layperson should be left to the jury, which supposedly is made up of just such average laypersons. If a juror can just as well arrive at his or her own conclusions by adding together the factual components provided by the witnesses, there is no need for the witnesses to inject their own conclusions.

Front 3

Under the FRE, what are the exceptions to the general rule that lay witnesses may not offer opinion testimony?

Back 3

Under FRE 701, opinion testimony may be offered by lay witnesses where:
1) The opinion is rationally based on the perception of the witness; and
2) It would be helpful to understanding the witness' testimony or determining a fact in issue.

Front 4

List 7 examples of exceptions to the lay witness opinion rule.

Back 4

1. Matters of taste and smell -- "It smelled like gunpowder."
2. Another's emotions -- "He seemed nervous."
3. Vehicular speed -- "He was going very, very fast."
4. Voice identification -- "I've known Clyde Bushmat for 15 years and I'd recognize his voice anywhere. It was Bushmat's voice on the telephone."
5. A witness's own intent, where relevant -- "I was planning on crossing the street."
6. Genuineness of another's handwriting -- "That's my wife's signature."
7. Another's irrational conduct -- "He was acting like a crazy man."
8. Intoxication -- "The man was drunk."

Front 5

D was charged with drowing her son Robert. Prosecution offered a witness who had known Robert. He testified that he was too far away from D and the child she was holding to be certain that the child was Robert, but that it was his "best impression" that the child was Robert.
Result?

Back 5

D's conviction overturned on appeal b/c the witness had given prohibited opinion testimony.

Front 6

D was convicted of murder. While in custody he gave the police an alibi to the effect that he had been with Ralph Jones at the crucial time. When questioned by the police, Jones denied this but at trial testified that D had winked at him while he/Jones was being interrogated (D was present during Jones' interrogation). Jones also testified that he interpreted the wink as a signal to him to suply the D with an alibi. Result?

Back 6

Although the accused's conviction was affirmed without consideration of the opinion rule problem, one justice noted in his dissent that Jones' testimony reflected an opinion and should not have been allowed.

Front 7

Ds were charged with Smith Act violations. At trial, Govt offered testimony of former members of the Communist party that Ds, by their actions, appeared to be members of the party.
Result?

Back 7

Trial court held that this was permissible since there was no other way the witnesses could convey to the jury what they had observed. However, this is a questionable ruling since it was made during the McCarthy era.

Front 8

What is the definition of "Expert" with regard to the Expert exception to the Opinion Rule?

Back 8

Men and women of science educated in the art, or persons possessing special or peculiar knowledge acquired from practical experience. Thus to be an Expert Witness, one must not be a member of a professional group or possess a postgraduate degree. The term "expert" in the law and in common sense, is a fairly broad range.

Front 9

What are the Four Basic Conditions of Expert Testimony?

Back 9

An expert witness, such as a pathologist or ballistics technician, can testify to an opinion, inference, or conclusion if four basic conditions are met:
1. Special Knowledge: The opinions, inferences, or conclusions depend on special knowledge, skill, or training not within the ordinary experience of lay jurors;
2. Qualified: The witness must be shown to be qualified as a true expert in the particular field of expertise;
3. Reasonable Degree of Certainty: The witness must testify to a reasonable degree of certainty (probability) regarding his or her opinion, inference or conclusion; AND
4. Sufficient Facts or Data: An expert witness must first describe the data (facts) on which his or her opinion, inference, or conclusion is based.

Front 10

What is the rationale behind the Expert Witness Exception to the Rule Against Opinion Testimony?

Back 10

Experts have special training, knowledge and skill in drawing conclusions from certain sorts of data that lay jurors do not have. However, expert witnesses and their opinions are permissible only in areas in which lay jurors cannot draw conclusions unassisted or would find it difficult to do so.

Front 11

What steps are involved in "qualifying the witness as an expert?"

Back 11

Before a witness can testify to an expert opinion, examining counsel must lay the necessary foundation by bringing out the witness's training, experience, and special skills.
Before examining counsel can get into the meat of the witness's testimony, however, opposing counsel is entitled to interrupt and engage in cross-examination as to the witness's expertise, limited strictly to probing the witness's credentials as an expert.

Front 12

What four sources of information are open to the expert witness in the formation of his or her opinions?

Back 12

1. Facts personally observed by him -- e.g., medical examiner who renders a conclusion concerning cause of death on the basis of data clinically observed.
2. If present in the courtroom, he can base his opinion on evidence adduced if that evidence is not in conflict.
3. The FRE, but not CEC, allows EW to base his opinion on data made known to him in advance of the trial or hearing. Furthermore, the data thus conveyed to the expert need not itself be received in evidence and, even beyond that, need not necessarily be legally admissible.
4. Hypothetical Question: An EW can base on opinion on data conveyed to him by means of a hypothetical question that is drawn from the evidence introduced during the trial.

Front 13

In forming his opinion, may an expert rely on inadmissible evidence?

Back 13

Yes. It is only necessary that the expert rely on those things a reasonable expert in the field normally relies on. Thus, an expert may rely on hearsay and opinion that couldn't, in and of themselves, be admitted into evidence directly.