Lay and Expert Opinion

Question 0

701- Opinion Testimony by Lay Witnesses

Answer 0

A. Applies to everyone who is not an expert, just based on their personal knowlege
B. Foundation
1. Rationally based on the witness’s perception (personal knowledge)
2. Helpful (relevant)
3. Not based on specific, technical, or other specialized knowledge (witnesses usual life’s experience/ distinctive characteristic)
C. Lay witnesses CAN offer opinions for “sense impressions” within everyday experiences of ordinary people :smell, speed (fast or slow, but not specifics), physical appearance, emotional state, irrational behavior, values of goods and services, recognition of voice and handwriting.

EX: Your honor, the witness has already testified about what he saw, therefore his testimony is based on personal knowledge, and it is helpful to the jury because…and is not based on technical knowledge because…

Question 1

Opinion Evidence

Answer 1

A. All times when the witness goes beyond the facts
B. Look for “therefore, I believe” and/or “my opinion is”
C. Objections
-Objection, improper opinion. Your honor the witness is a lay/expert witness and lacks foundation

Question 2

702- Expert Witnesses

Answer 2

In a specific field of scientific, technical, or “other specialized” knowlede…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.

Expert Witnesses have two functions:

1. Jury Education-explaining an area that lay witnesses would not understand
2. Provide opinions

Under Frye, the experts are the gatekeepers determining what is allowed based on generally accepted practices in their field. Under Daubert, the judge becomes the gatekeeper and determines what to allow in.

Question 3

702 Foundation

Answer 3

A. Reliability (two parts)
1. Reliability of Methodology (Daubert)
a. Whether the theory or technique has been tested
b. Whether it has been subject to peer review and publication
c. The technique’s error rate
2. Methodology as Applied (Daubert)
a. The existence of standards controlling the technique’s application and whether those were followed
b. Whether the theory or technique has generally been accepted in the relevant scientific community. (Frye)
c. Ruled out other explanations, if appropriate
d. The witness has applied the principles and methods reliably to the facts of the case.
2. Determine the factual basis of the expert opinions (three ways the expert can develop their opinions to testify)::
a. Personal Knowledge
b. Facts or data admitted into evidence
c. Inadmissible facts or data if they are the type reasonably relied upon by experts in the particular field
==Inadmissible facts include depositions b/c they are HS, but the expert can review those before trial if experts in their field generally and reasonably do so.
CA Distinction - The CEC is much more strict with the admission of evidence (on direct and cross exam) and there is no provision for admitting otherwise inadmissible evidence that serves as the basis for an expert opinion. Further, the CEC, under rule 721, limits cross exam: only when the expert relied upon it, treatise read into evidence and it is a reliable authority.
3. Qualifying the expert witness - by knowledge, skill,experience, training, or education. Being an expert doesn’t require a lot of education as sufficient experience, knowledge. Skill or training in a field is sufficient to qualify as an expert
CA Distinction- CEC does not base opinions upon other specialized knowledge. Experts must have special knowledge on skill, experience, training, or education only
4. Evidence “fits” facts & 403
a. The evidence must “help” the trier of fact to understand the evidence of to determine a fact at issue.
b. Factors in considering “helpful”::
1. Does the testimony fit the dispute
2. Does it add perspective that the juror couldn’t provide on their own?
3. Does the testimony make sense?
c. Think of it this way: even if the expert witness was the best in their field, their testimony must have something to do with the case. Can’t offer 10 experts to explain medicare in order to simply confuse the jury

Question 4

704- Opinions on the Ultimate Issue

Answer 4

1. Not objectionable just because it goes to the ultimate issue
2. In a criminal case, an expert witness must not state opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or defense…those matters are for the trier of fact alone

Question 5

Examination of Experts

Answer 5

1. Experts Can be cross examined on the same grounds- bias, etc, as any other witness AND by changing a hypothetical ( if direct examined with one) and w/ learned treatises (after establishing it under 803(18))

Issue spotting: must be at trial and the witness is on the stand testifying about stuff that goes BEYOND facts (I.e “in my opinion”)

Exam Tips: Objection, improper opinion or objection/ improper foundation
ET: Going to the ultimate question is almost always the wrong issue on multiple choice, the only area the expert witness can’t discuss is the defendant’s mental impressions 704(b)