CHAP. 9 : OPINION EVIDENCE

CHAP. 9 : OPINION EVIDENCE

P. JANICKE 2012

OPINIONS ARE GENERALLY INADMISSIBLE • RULE 602 REQUIRES ACTUAL “KNOWLEDGE” FOR MOST TYPES OF EVIDENCE • SINCE KNOWLEDGE IS ILL-DEFINED CONCEPT, THE LINE BETWEEN KNOWLEDGE AND OPINION IS ILL DEFINED 2012

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OPINIONS • ABOUT 98% OF WHAT WE THINK WE “KNOW” • OPINIONS CONSIST OF: – FACTS LEARNED FROM OTHERS WHO MAY KNOW THEM – CONCLUSIONS WE HAVE DRAWN FROM OUR OWN OBSERVATIONS 2012

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THE OBJECTION : • GENERAL RULE: OPINIONS ARE NOT ALLOWED IN EVIDENCE • “OBJECTION, YOUR HONOR; IT CALLS FOR AN OPINION” • IF JUDGE AGREES, THIS SETS THE STAGE FOR ANALYSIS • SOME KINDS OF OPINIONS ARE ADMISSIBLE 2012

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OPINIONS OF NON-EXPERTS RULE 701 •

ALLOWED IF: 1. RATIONALLY BASED, 2. BASED ON A PHYSICAL PERCEPTION BY THE WITNESS, AND 3. HELPFUL TO THE TRIER OF FACT

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• “HELPFUL” MEANS THERE’S NO OTHER FEASIBLE WAY TO CONVEY THE WITNESS’S OBSERVATION

• IF STATING A FEW FACTS GIVES THE PICTURE, THE OPINION IS DISALLOWED

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EXAMPLES OF ADMISSIBLE OPINIONS • • • •

HE WAS DRUNK HE WAS UPSET SHE WAS NERVOUS SHE WAS ANGRY

ALL REQUIRE FOUNDATION OF PHYSICAL PERCEPTION 2012

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FURTHER EXAMPLES (TRADITIONALLY ALLOWED) • INSANITY • HANDWRITING

BOTH REQUIRE FOUNDATION OF PHYSICAL PERCEPTION 2012

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PROBLEMS/CASES • 9A • 9B

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EXPERT OPINIONS (RULE 702) • SPECIAL KNOWLEDGE OR EXPERIENCE IN SOME AREA – SCIENTIFIC, BUSINESS, ARTS, CAR REPAIR, ETC., ETC. – CRIME DETECTION IS A CONTROVERSIAL AREA 2012

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EXPERT’S METHODOLOGY MUST BE RELIABLE • CHECKED INITIALLY BY THE JUDGE BEFORE TRIAL • IF JUDGE FINDS RELIABLE METHODOLOGY, EVIDENCE IS ADMITTED FOR JURY EVALUATION • JURY MAY FIND METHODOLOGY WAS UNRELIABLE AND GIVE IT NO WEIGHT 2012

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JUDGE AS GATEKEEPER • IF JUDGE FINDS METHODOLOGY RELIABLE: JUDGE IS NOT A FACTFINDER • SHE IS A SCREEN ON WHAT GETS THROUGH TO THE JURY • BUT: IF THE JUDGE FINDS METHODOLOGY UNRELIABLE, THE FINDING IS FINAL – JURY NEVER HEARS THE EVIDENCE 2012

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SAME ROLE AS [NEARLY] ALWAYS • JUDGE IS A SCREEN FOR EVIDENCE • POSITIVE FINDING ISN’T DETERMINATIVE – EXCEPTION: JUDICIAL NOTICE IN A CIVIL CASE

• NEGATIVE FINDING SHUTS OFF THE EVIDENCE 2012

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PROBLEMS/CASES • • • •

9C Daubert DuPont [see posted materials] 9D

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OPINION ON AN ULTIMATE FACT [R. 704] • THE OLD CLICHÉ: “INVADING THE PROVINCE OF THE JURY” – WAS NONSENSE

• NOW GENERALLY ALLOWED, IF OTHERWISE IN COMPLIANCE WITH RULES 2012

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• EXCEPTION (FEDERAL RULE): STATE OF MIND OF CRIMINAL D. – THE OLD CLICHÉ SURVIVES HERE – USUALLY SANITY IS INVOLVED – EXPERT MUST STAY ONE-STEP-BACK

• TEXAS RULE: DOES NOT HAVE THE EXCEPTION; CAN ALWAYS GO TO THE BOTTOM LINE 2012

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COURT-APPOINTED EXPERT (RULE 706) • GOOD IN THEORY

• LITIGATORS CRINGE!

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STIPULATING EXPERTISE OF YOUR EXPERT WITNESS • OFTEN VOLUNTEERED BY ADVERSARY • SELDOM ACCEPTED – WOULD REMOVE DRAMA – NO FEAR OF OBJECTION

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PROBLEMS/CASES • Exercise #8

• Film Clip from My Cousin Vinny on expert witness testimony

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