Evidence Class 6 9/25/07

1. Evidence Class 69/25/07 Lay and Expert Witness Opinions

2. Review – 404(b) • Bad acts are admissible if you can come up with a non-propensity reason for their admission. • NOTE: Even if admissible under R. 404(b); must still be admissible under R. 403 Also, defendants are entitled to a limiting instruction.

3. Review – Rule 412 • In criminal cases, a victim’s prior sexual history is admissible only in very limited situations. In civil cases, you do a reverse 403 analysis with the balance being against the admissibility of a witness’ sexual history (and, in the balance against admissibility, you consider harm to any of the parties).

4. Rules 413-415 • Prior bad acts are allowed for their propensity inferences in sex crime cases as well as in civil cases involving child molestation or sexual assault. However, even if allowed under 413-415, the courts must do a 403 balancing test.

5. Describe the girl and dog in this photo

6. Lay opinion • Opinion is a short hand rendition of what a witness observed; e.g. - She sure was loaded last night -

7. Policy behind admission of lay opinion testimony • We allow opinion testimony b/c sometimes a witness may not know or be unable to explain all the factors which led to her conclusion - sometimes hard to explain all the factors that led you to conclude someone was happy or uncomfortable or driving too fast or drunk

8. Practice pointer • Just because law allows an opinion, doesn’t mean you should introduce evidence via an opinion rather than lay out all the facts and allow the jury to reach their own opinion. Think about trying to prove a witness was drunk. You could let a witness testify as to her opinion that the plaintiff was drunk. Alternatively, you could elicit the information that led to that opinion (think of questions you’d want to ask).

9. What are the 3 requirements for lay witness opinion to be admissible? • Rationally based on witness’ perception • Helpful to fact finder • Not an expert opinion

10. Connection btwn Rule 602 & Rule 701 • 602 - lay witness testimony must be based on first-hand knowledge (wtns must have perceived subject matter of testimony) • 701 – opinion testimony (i.e. reasonable inferences base upon what witness perceived must be based on 1st hand knowledge) • Which rule governs: • A. I saw a girl holding a white dog; • B. The girl looked happy

11. Hoffner p. 411 • What’s the contested evid • Issue - could lay witnesses give this opinion; • What are two criteria for lay witness opinion;* (three criteria under revised rules) • which criteria not met here? (explain)

12. Hoffner questions • Would the analysis be different if these witnesses had been in the room with the patient? • Would the analysis have been different if they had offered these witnesses as experts?

13. How old is this girl?

14. US v. Yazzie p.413 • What’s the contested evidence? • What’s the argument for each side? • Which argument prevails and why?

15. Opinion can be an inference • BUT KEY is that opinion must be an inference drawn from first hand observations - i.e. it must be one that is RATIONALLY based on the witness’ perception (i.e. one a reasonable person could draw from the underlying facts)

16. query • Can a witness state her opinion as to someone else’s intent (e.g. he never intended to pay back the money; he purposefully drove his car into the victim, etc? [scene from zombie hunter])

17. Rule 704 – ultimate issue • What is an ultimate issue in a case? • Why do we allow lay and expert witnesses to give opinions on ultimate issues?

18. Rule 704(a) • Putting aside R. 704(b), an opinion on an ultimate issue must be helpful to the jury. Using this prong of the rules on opinions, courts have imposed some limitations on opinions that encompass ultimate issues. What are some of those limitations?

19. Things that make courts very wary • 1. witnesses who use a legal term as a factual rather than legal conclusion (lay use of negligent vs. legal term); • 2. when a witness’ testimony tracks the legal standard and gives the appearance of being an instruction on the applicable law in the case (protecting turf)

20. Thigpen p. 504 Illustrating the role of semantics • History: Rule 704(b) - experts in criminal cases cannot state an opinion or inference as to whether the def did or didn’t have the mental state or condition constituting an element of the crime charged or of a defense there to - i.e. cannot opine, the defendant was criminally insane (enacted after President Reagan was shot and Hinckley got off on an insanity defense)

21. Thigpen • Experts testified that Thigpen suffered from schizophrenic disorder (was that ok under Rule 704(b)? explain) • On cross, the expert was asked if person w/schizophrenia could be unable to appreciate the nature and quality of his acts (was that ok under R. 704(b)? • If the expert on cross had been asked, “was Thigpen unable to appreciate the nature and quality of his acts” would that have been ok under R. 704(b)?

22. A matter of semantics • Which of the following is more likely to be excluded: • A. In my opinion, the plaintiff’s conduct contributed to her injury. • B. In my opinion, the plaintiff was contributorily negligent.

23. Hypos • Defendant is on trial for murdering her child. She claims someone else killed her child. State wants to introduce testimony of the cop who first talked to defendant. The cop , testifying as a lay witness, plans to testify that the defendant seemed calm and unconcerned when she reported her child had been missing for 8 hours? Objection inadmissible opinion. What ruling and why?

24. #2 • Sam slipped and fell on some tiles as he walked into the local Kroger. He sued the store for failure to warn customers about the dangerously slippery floors. Fred, an eyewitness to the fall intends to testify, "in my opinion, those tiles were very slippery." The defense attorney wants to exclude that testimony if possible. What kind of questions should the defense attorney ask to lay a foundation for excluding that opinion?

25. #3 • Assume that the defense lawyer was unable to lay a foundation for excluding the opinion. Would it make a difference in terms of the admissibility of the opinion if Fred says, "those tiles the plaintiff fell on were sure slippery" (i.e. he doesn’t say, "in my opinion").

26. #4 • Smith sued for recission of a contract on the ground that Jones, the other party to the contract, lacked mental capacity. Smith wants to have Abel testify - "anyone who spoke w/Jones for 2 minutes would know that she was loony". Admissible? Why/why not?

27. #5 • What if he said, "anyone who spoke w/Jones for 2 minutes would know she lacked the mental capacity to execute a contract“? Admissible? Why/why not?

28. #6 • A lay witness in a products liability case wants to testify, "I think the plaintiff was injured by his own conduct. He would not have been injured if he had simply read and paid attention to the warnings". Permissible opinion testimony? Why/why not?

29. Lay v. expert witness opinion • What’s the difference between a lay and expert witness opinion? • lay opinion is based on a process of reasoning familiar in everyday life - doesn’t require specialized knowledge/training or experience; whereas expert opinion is one which involves a process of reasoning which can be mastered only by specialists in the field; or involves having specialized knowledge you apply to a particular fact situation

30. Practice pointer • Why is it important to properly identify whether your witness will be giving lay or expert opinions? FRCP 26 - if don’t disclose the opinion and file report - can’t give opinion at trial • Also, need to qualify an expert as an expert before can give opinion

31. Practice pointer #2 • Admissibility of expert testimony is discretionary call. In many cases, if lower court decides to exclude expert testimony, case is over. Very important to learn rules on experts b/c you need to win your motion to include/exclude an expert witness at the trial court level

32. What makes someone an expert • $350 per hour expert on homelessness

33. Qualifying an expert • First step is qualifying the witness as an expert. To do this - must show credentials which indicate your proposed expert has special training/knowledge/skill/experience that qualifies them to give the proposed opinion in this case. (If you think someone your opponent offers as an expert is not qualified to testify as an expert on that subject, you may request the opportunity to voir dire them about their qualifications)

34. Homework hypo • Find the pages in Goode & Wellborn which tell you the questions you should ask to qualify an expert? In reviewing those questions, what do you learn about the type of questions one should ask to qualify an expert?

35. Hypo • Assume it’s a slip and fall case. Plaintiff’s theory is that the ABC brand wax applied to the hardwood mall floor made the mall floor unreasonably slippery. Plaintiff seeks to have the following two people testify as experts:

36. Putting it into practice • 1. A chemist from GA Tech who will testify about the chemical reaction that occurs when you use ABC brand wax on a hardwood floor and why that chemical reaction could make the hardwood floor unreasonably slippery; • What questions would you ask this expert to qualify her to testify at trial?

37. Hypo cont’d • 2. a man who did not complete high school but has worked waxing floors for 30 years to testify about why he never uses ABC brand wax on wood floors. What questions would you ask to qualify him?

38. Limits of qualifications • Would the man with floor waxing experience be allowed to testify about the chemical reaction that occurs when applying the wax to the floor? • Does the fact that someone always testifies only for the plaintiff or the defense disqualify them as an expert? • Does the fact that someone has minimal experience/education/training/skill in the area in question disqualify them as an expert?

39. hypo • Defendant wants to call a linguistics expert to testify that in American culture, the term “bitch” is a derogatory term. What would be your best argument to keep that opinion out?

40. Ultimate issues • May an expert give an opinion on an ultimate issue? • If the expert testifies, “the doctor’s conduct did not conform to the standard of care in the Atlanta area” would that be admissible? • If the expert testifies, “the doctor was negligent” would that be admissible? • Is there any difference between those two opinions?

41. Scott p. 438 • Slip and fall on broken sidewalk - Dr. Snydor = human factors expert (expert on science of human behavior) • What are the contested opinions here: • Grates on sidewalk and she wears heels – women wearing heels avoid grates • Yellow color of curb - yellow tricks the mind’s eye (she didn’t know it dropped off) • Conditions created accid waiting to happen • Higher section of curb hid displaced section • Spalling of concrete catches’ the plaintiff’s attention

42. Scott cont’d • Identify which were admissible and which were inadmissible and explain why?

43. hypo • Cop on stand - qualified as expert in a date rape trial. Another witness testified that she heard the defendant say the following “ last night, after I slipped the roofies into her [the victim’s] drink, I scored”. The cop will testify that this means the def drugged the victim and had sex with her. Would any part of that expert testimony be objectionable? If so - what grounds?

44. Evolution of Rule 702 • In the 1920s scientific discoveries were emerging daily. You are a judge, you are trained in law, not in science. You begin to get lawyers who want to prove their case w/some of these new scientific techniques - e.g. the early version of the lie detector test. As a judge - how do you evaluate the science behind the machine?

46. FRYE TEST • - How do you know if the science is valid? Do you do your own scientific research to determine for yourself if this is valid science? NO - you defer to other scientists in the field - you decide not to let this evidence in unless there are enough people w/training in the field that agree that this new technique is based upon valid science - this is the Frye “general acceptance test” - scientific evidence is admissible only when the principle upon which the evidence is based is sufficiently established to have general acceptance in the field to which it belongs.

47. Daubert, Kumho and a new test • Beginning in the 1970s and gaining steam through the next decades, tort reformers were beginning to complain about “junk science” in the courtroom – the idea that experts were allowed to say just about anything whether or not it had a valid scientific basis.

48. Tension: junk science v. need for expert testimony • How do you allow expert testimony but ensure that it is not “junk science”; a line of cases beginning with Daubert in 1993 and ending with Kumho in 1999 developed the standard which is now incorporated into Rule 702. Under Rule 702, what must the proponent of expert testimony demonstrate before the testimony is admissible?

49. 1. Sufficient facts/data • How do you show the testimony is/is not based upon sufficient facts/data?

50. 2. Reliable principles and methods • How do you show the opinion is/is not based upon reliable principles/methods?