CHAP. 9 : OPINION EVIDENCE

CHAP. 9 :OPINION EVIDENCE P. JANICKE 2014

OPINIONS ARE GENERALLY INADMISSIBLE • RULE 602 REQUIRES ACTUAL “KNOWLEDGE” FOR MOST TYPES OF EVIDENCE • SINCE KNOWLEDGE IS AN ILL-DEFINED CONCEPT, THE LINE BETWEEN KNOWLEDGE AND OPINION IS ILL DEFINED Chap. 9 -- Opinion Evidence

OPINIONS • ABOUT 98% OF WHAT WE THINK WE “KNOW” ARE OPINIONS • OPINIONS CONSIST OF: • FACTS LEARNED FROM OTHERS WHO MAY ACTUALLY KNOW THEM • CONCLUSIONS WE HAVE DRAWN FROM OUR OWN OBSERVATIONS Chap. 9 -- Opinion Evidence

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 FURTHER ANALYSIS • SOME KINDS OF OPINIONS ARE ADMISSIBLE Chap. 9 -- Opinion Evidence

OPINIONS OF NON-EXPERTSRULE 701 • ALLOWED IF: • BASED ON A PHYSICAL PERCEPTION BY THE WITNESS, AND • RATIONALLY BASED, AND • HELPFUL TO THE TRIER OF FACT [NOTE: YOUR OPINIONS ABOUT FAMOUS OFFICE-HOLDERS WILL NOT QUALIFY] Chap. 9 -- Opinion Evidence

“HELPFUL” MEANS THERE’S NO OTHER FEASIBLE WAY TO CONVEY THE WITNESS’S OBSERVATION • IF STATING A FEW FACTS CAN GIVE THE PICTURE, THE OPINION IS DISALLOWED Chap. 9 -- Opinion Evidence

EXAMPLES OF ADMISSIBLE OPINIONS • HE WAS DRUNK • HE WAS UPSET • SHE WAS NERVOUS • SHE WAS ANGRY ALL REQUIRE FOUNDATION OF A PHYSICAL PERCEPTION Chap. 9 -- Opinion Evidence

FURTHER EXAMPLES(TRADITIONALLY ALLOWED) • INSANITY • HANDWRITING BOTH REQUIRE FOUNDATION OF PHYSICAL PERCEPTION Chap. 9 -- Opinion Evidence

PROBLEMS/CASES • 9A • 9B Chap. 9 -- Opinion Evidence

EXPERT OPINIONS(RULE 702) • SPECIAL KNOWLEDGE OR EXPERIENCE IN SOME AREA • SCIENTIFIC, BUSINESS, ARTS, CAR REPAIR, ETC., ETC. • CRIME DETECTION IS A CONTROVERSIAL AREA Chap. 9 -- Opinion Evidence

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 Chap. 9 -- Opinion Evidence

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 Chap. 9 -- Opinion Evidence

PROBLEMS/CASES • 9C • Daubert • DuPont [see posted materials] • 9D Chap. 9 -- Opinion Evidence

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 Chap. 9 -- Opinion Evidence

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; • EXPERT CAN ALWAYS GO TO THE BOTTOM LINE, IF METHODOLOGY IS GOOD Chap. 9 -- Opinion Evidence

COURT-APPOINTED EXPERT(RULE 706) • GOOD IN THEORY • LITIGATORS CRINGE! Chap. 9 -- Opinion Evidence

STIPULATING EXPERTISE OF YOUR EXPERT WITNESS • OFTEN VOLUNTEERED BY ADVERSARY • SELDOM ACCEPTED • WOULD REMOVE DRAMA • NO FEAR OF OBJECTION ONCE THE OFFER IS MADE Chap. 9 -- Opinion Evidence

PROBLEMS/CASES • Exercise #8 • Film Clip from My Cousin Vinny on expert witness testimony Chap. 9 -- Opinion Evidence

CHAP. 9 : OPINION EVIDENCE