Evidence Test Holley 2009

Front 1

What is the Lay opinion rule and what is its scope?

Back 1

Rule 701.
If the witness is not testifying as an expert, the only opinions or inferences allowed are those:
(a) Rationally based on the perception of the witness.
(b) Helpful for:
1. A clear understanding of the witness’s testimony. Or
2. Determining a fact in issue.
And (c) NOT based on scientific, technical, or other specialized knowledge that falls within the scope of Rule 702 (“Testimony by Experts”).

Proper scope: The proper scope of non-expert opinion includes such perceptions as:
1) physical measurements-height, weight, speed of a vehicle;
2) identity or general appearance of a person;
3) physical states such as intoxication or injury;
4) emotional states such as fear or sorrow;
5) sensory descriptions (taste, touch, sound, smell);
6) identity of handwriting and voice identification-more specifically covered by Rule 901(b)(2) and (5);
7) value of one’s own land or services; and
8) sanity of the testator (where the opinion is given by a subscribing witness of the will).

Legal conclusions: Legal conclusions must be avoided (i.e. that a person is an alcoholic, or a schizophrenic; that the victim’s spine was fractured; that a contract was formed; that defendant’s conduct was negligent).

Front 2

What is the expert testimony rule and what is its scope/exceptions?

Back 2

Rule 702.
a. An expert’s opinion (or other form of testimony) may be used to provide scientific, technical, or other specialized knowledge, if it is helpful for either:
1. Understanding the evidence.
2. Determining a fact in issue.
b. An “expert” is someone who is qualified by:
1. Knowledge. Or
2. Skill. Or
3. Experience. Or
4. Training. Or
5. Education.
c. Reliability:
The expert testimony will be admissible only if:
(1) The testimony is based upon sufficient facts or data. And
(2) The testimony is the product of reliable principles and methods. And
(3) The witness has applied the principles and methods reliably to the facts of the case.

Caveat: The expert’s opinion must be within the expert’s held of expertise. For example, an expert truck mechanic may not give an opinion as to the speed of two vehicles at the point of impact.

Rule 703.
a. An expert can base opinions and inferences on facts/ data that:
1. The expert perceives.
2. The expert is informed of at or before the hearing.
b. If experts in the field reasonably rely on the same type of facts or data (as in the case) when they form their opinions, the facts or data do not have to be admissible as evidence.
c. Facts or data that are otherwise inadmissible (see b.) may not be disclosed to the jury by the expert or by inference, unless the court determines that the probative value (in helping the jury evaluate the expert’s opinion) substantially outweighs the prejudicial effect.

704
(b) Mental state exception: An expert’s opinion testimony may not be used to show that an accused had a particular mental state or condition that constitutes an element of a crime or a defense. (The trier of fact must determine this on its own.)
Ex. (if the accused is charged with possession of narcotics with intent to distribute, an expert opinion by an F.B.I. agent that defendant intended to distribute the marijuana found in his possession would be improper to prove the defendant’s mental state.)

Rule 705.
a. An expert witness does not have to testify about the facts or data that underlie her opinion or inference.
b. Exceptions: The expert must testify about underlying facts if:
1. The court requires it.
2. The expert is asked to disclose the facts on cross-examination.