Class 25: Judicial Notice, Lay Opinions and Appropriate Subjects for Expert Testimony - Apr. 9

Question 1

What are legislative facts? (Russo)

Answer 1

Legislative facts are general observations made to justify policy decisions and enactments, don’t relate to a specific case (4/9)

Question 2

What are judicial facts? (Russo)

Answer 2

Judicial facts are facts related to the present case which the parties want to prove to help meet their burden of proof. (4/9)

Question 3

When are adjudicative facts not subject to reasonable dispute? (Russo)

Answer 3

Adjudicative facts which are not subject to reasonable dispute because:

(1) They are generally known in the court’s jurisdiction or

(2) They can be readily determined by sources whose accuracy cannot be reasonably questioned

(FRE 201(b)) (4/9)

Question 4

When may judges stipulate adjudicative facts? (Russo)

Answer 4

Judges may stipulate adjudicative facts whenever they want as long as the fact is not subject to reasonable dispute. (FRE 201(c)) (4/9)

Question 5

When must judges stipulate adjudicative facts? (Russo)

Answer 5

Judges must stipulate adjudicative facts when it is an adjudicative fact and a party requests it and supplies the judge with the sources whose accuracy cannot be reasonably questioned. (FRE 201(c)) (4/9)

Question 6

How are judicially noticed facts seen in civil cases? (Russo)

Answer 6

In civil cases, judicially noticed facts are conclusively proven. (FRE 201(c)) (4/9)

Question 7

How are judicially noticed facts seen in criminal cases? (Russo)

Answer 7

In criminal cases, judges may judge may accept or reject judicially noticed facts, but jury is the ultimate decider because they are the fact finder. (4/9)

Question 8

What is a stipulation? (Russo)

Answer 8

A stipulation is when the parties can agree that a fact is not in dispute, even if that fact is not properly the subject of judicial notice. (4/9)

Question 9

How are stipulations seen in civil cases? (Russo)

Answer 9

In civil cases, stipulations are conclusively proven. (4/9)

Question 10

How are stipulations seen in criminal cases? (Russo)

Answer 10

In criminal cases, stipulations may be accepted or rejected by the jury because they are the fact finder. (4/9)

Question 11

What is the difference between a lay opinion and not a lay opinion? (Russo)

Answer 11

Lay opinion: The guy was totally waster

Not lay opinion: She was over twice the legal limit (4/9)

Question 12

What are the three requirements for lay opinions? (Russo)

Answer 12

The three requirements for lay opinions are:

(1) Must be based on the witness’s own perception (FRE 602, personal knowledge)

(2) The opinion must be helpful to the jury (FRE 401-402, relevance)

(3) The opinion can’t rest on scientific, technical, or specialized knowledge, but may rest to some extent on everyday experiences in the witness’s life (FRE 701-702)

(4/9)

Question 13

What is an expert witness? (Cornell LII)

Answer 13

Unlike lay witnesses, expert witnesses may provide opinions on evidence such as the genuineness of documents, accident reconstruction, and computer forensics.

Question 14

What are the requirements for expert’s under Daubert - Simplified? (Russo)

Answer 14

(1) The principles and methods defining the field must be reliable

(2) The expert must have applied those techniques reliably to the facts

(3) The expert testimony must fit the facts and the case in a way that is helpful to the jury in resolving some issue they would have difficulty in resolving using just common sense

(4) The evidence presented via the expert’s testimony must satisfy FRE 403

(FRE 702) (4/9)

Question 15

What is a lay witness? (Q)

Answer 15

A lay witness is any person who gives evidence who is not an expert witness. In order for a lay witness to testify, he must have personal knowledge of the matter. (FRE 602)

Question 16

What evidence must the proponent of a lay witness introduce to show that the witness has the necessary personal knowledge to testify? (Q)

Answer 16

The proponent of the lay witness must introduce evidence sufficient to permit a reasonable jury to find that the witness has personal (generally, firsthand) knowledge of the facts to which the witness has testified or will testify. This is the conditional relevancy standard. A judge can consider the witness’s own testimony when determining whether the witness has sufficient personal knowledge. (FRE 602)

Question 17

How can an attorney show that a lay witness has personal knowledge of a matter? (Q)

Answer 17

An attorney can show that a lay witness has personal knowledge of a matter if the witness actually perceived the event or fact through physical senses. A lay witness also has personal knowledge when testifying about opinions rationally based on personal observation and experience. A lay witness can testify only as to matters about which the witness has personal knowledge. Lay witness opinion testimony is limited to opinions rationally based on the witness’s perception.

Question 18

What three requirements must be met for a lay witness to testify in the form of an opinion? (Q)

Answer 18

A lay witness can testify in the form of an opinion if the opinion (1) is rationally based on the witness’s perception; (2) will help the jury understand the witness’s testimony or determine a fact at issue in the case; and (3) is not based on any scientific, technical, or other specialized knowledge. Lay witnesses can draw reasonable inferences from their own experience as long as they use a process of reasoning familiar in everyday life.

Question 19

Under which two circumstances can a lay witness’s opinion be admissible? (Q)

Answer 19

For a lay opinion to be admissible, it must (1) help the jury clearly understand the witness’s testimony or (2) determine a fact at issue in the case. A lay witness’s opinion helps the jury if it is based on the witness’s experience and gives the jury more information than a mere recitation of facts would provide. Lay witnesses can give opinions about the emotional states of others (e.g., a person appeared angry or sad); physical states of people or objects (e.g., a person appeared drunk/sober or an object was light/dark); measurements (e.g., the speed of a car, the distance between objects or loss/profit in a business); relationships (e.g., boss and employee or harmonious/antagonistic); impressions of events (e.g., the person was being robbed or the incident was an accident); and whether a voice or handwriting belongs to a particular person.

Question 20

What does FRE 201 govern? (LII)

Answer 20

FRE 201 governs judicial notice of adjudicative facts.

Question 21

What does FRE 702 govern? (LII)

Answer 21

FRE 702 governs testimony by expert witnesses.

Question 22

What does FRE 701 govern? (LII)

Answer 22

FRE 701 governs testimony by lay witnesses.