CHAP. 9 : OPINION EVIDENCE

1. CHAP. 9 :OPINION EVIDENCE P. JANICKE 2012

2. 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 Chap. 9 -- Opinion Evidence

3. 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 Chap. 9 -- Opinion Evidence

4. 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 Chap. 9 -- Opinion Evidence

5. OPINIONS OF NON-EXPERTSRULE 701 • ALLOWED IF: • RATIONALLY BASED, • BASED ON A PHYSICAL PERCEPTION BY THE WITNESS, AND • HELPFUL TO THE TRIER OF FACT Chap. 9 -- Opinion Evidence

6. “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 Chap. 9 -- Opinion Evidence

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

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

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

10. 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

11. 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

12. 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

13. 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 Chap. 9 -- Opinion Evidence

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

15. 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

16. 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 Chap. 9 -- Opinion Evidence

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

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

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