CHAP. 9 : OPINION EVIDENCE

CHAP. 9 :OPINION EVIDENCE Prof. JANICKE 2019

OPINIONS ARE GENERALLY INADMISSIBLE • RULE 602 REQUIRES ACTUAL “KNOWLEDGE” FOR MOST TYPES OF EVIDENCE • KNOWLEDGE MEANS PHYSICAL PERCEPTIONS ONLY! • BUT: IN A PRACTICAL JUSTICE SYSTEM, WE NEED SOME ROOM FOR OPINIONS Chap. 9 -- Opinion Evidence

MEANING OF OPINIONS • ABOUT 98% OF WHAT WE THINK WE “KNOW” ARE ACTUALLY OPINIONS (e.g., OUR OWN AGE; ID OF U.S. PRESIDENT OR TEXAS GOVERNOR) • 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 OPINION 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 YOUR AGE OR 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 TESTIFYING TO A FEW FACTS CAN CONVEY THE STORY TO THE JURY JUST AS WELL, THE OPINION IS DISALLOWED Chap. 9 -- Opinion Evidence

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

FURTHER EXAMPLES OF LAY OPINIONS TRADITIONALLY ALLOWED • INSANITY or SANITY • HANDWRITING BOTH REQUIRE FOUNDATION OF PHYSICAL PERCEPTION Chap. 9 -- Opinion Evidence

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

EXPERT OPINIONS: 1ST-HAND PERCEPTION IS NOT REQUIRED (RULE 702) • SPECIAL KNOWLEDGE OR EXPERIENCE IN SOME AREA • SCIENTIFIC, BUSINESS, ARTS, CAR REPAIR, ETC., ETC. • CRIME DETECTION? CONTROVERSIAL Chap. 9 -- Opinion Evidence

EXPERT’S METHODOLOGY MUST BE RELIABLE • CHECKED INITIALLY BY THE JUDGE, AT A HEARING BEFORE TRIAL • IF JUDGE FINDS METHODOLOGY WAS RELIABLE, OPINION IS ADMITTED FOR JURY EVALUATION • JURY MAY STILL FIND METHODOLOGY WAS UNRELIABLE AND GIVE OPINION NO WEIGHT Chap. 9 -- Opinion Evidence

VOIR DIRE PRIOR TO GETTING OPINION IS ALMOST UNIVERSAL • JUDGE HAS ALREADY DECIDED GOOD METHODOLOGY, BUT: • NEED TO CUT THE EXPERT DOWN TO SIZE BEFORE THE JURY • DIDN’T CONSIDER X • DIDN’T CONSIDER Y • CONCEDE FALLIBILITY • WITNESS’S MISTAKES MAY HAVE OCCURRED IN CARRYING OUT EVEN A GOOD METHODOLOGY Chap. 9 -- Opinion Evidence

PROBLEMS/CASES • 9C • Daubert • Kumho • 9D • Moore • 9E 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: 18 USC 17): 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 WITNESS(RULE 706) • GOOD IN THEORY • LITIGATORS CRINGE! Chap. 9 -- Opinion Evidence

ACCEPTING A STIPULATION OF EXPERTISE OF YOUR EXPERT WITNESS? • A STIPULATION OF CREDENTIALS IS OFTEN VOLUNTEERED BY ADVERSARY • IS SELDOM ACCEPTED • WOULD REMOVE DRAMA • NOW YOU HAVE NO FEAR OF ANY OBJECTION TO CREDENTIALS Chap. 9 -- Opinion Evidence

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

CHAP. 9 : OPINION EVIDENCE