CHAP. 9 : OPINION EVIDENCE P. JANICKE 2012

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 2012 Chap. 9 -- Opinion Evidence

Chap. 9 -- Opinion Evidence 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 2012 Chap. 9 -- Opinion Evidence

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 ANALYSIS SOME KINDS OF OPINIONS ARE ADMISSIBLE 2012 Chap. 9 -- Opinion Evidence

OPINIONS OF NON-EXPERTS RULE 701 ALLOWED IF: RATIONALLY BASED, BASED ON A PHYSICAL PERCEPTION BY THE WITNESS, AND HELPFUL TO THE TRIER OF FACT 2012 Chap. 9 -- Opinion Evidence

Chap. 9 -- Opinion Evidence “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 2012 Chap. 9 -- Opinion Evidence

EXAMPLES OF ADMISSIBLE OPINIONS HE WAS DRUNK HE WAS UPSET SHE WAS NERVOUS SHE WAS ANGRY ALL REQUIRE FOUNDATION OF PHYSICAL PERCEPTION 2012 Chap. 9 -- Opinion Evidence

FURTHER EXAMPLES (TRADITIONALLY ALLOWED) INSANITY HANDWRITING BOTH REQUIRE FOUNDATION OF PHYSICAL PERCEPTION 2012 Chap. 9 -- Opinion Evidence

Chap. 9 -- Opinion Evidence PROBLEMS/CASES 9A 9B 2012 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 2012 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 2012 Chap. 9 -- Opinion Evidence

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 2012 Chap. 9 -- Opinion Evidence

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 2012 Chap. 9 -- Opinion Evidence

Chap. 9 -- Opinion Evidence PROBLEMS/CASES 9C Daubert DuPont [see posted materials] 9D 2012 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 2012 Chap. 9 -- Opinion Evidence

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; CAN ALWAYS GO TO THE BOTTOM LINE 2012 Chap. 9 -- Opinion Evidence

COURT-APPOINTED EXPERT (RULE 706) GOOD IN THEORY LITIGATORS CRINGE! 2012 Chap. 9 -- Opinion Evidence

STIPULATING EXPERTISE OF YOUR EXPERT WITNESS OFTEN VOLUNTEERED BY ADVERSARY SELDOM ACCEPTED WOULD REMOVE DRAMA NO FEAR OF OBJECTION 2012 Chap. 9 -- Opinion Evidence

Chap. 9 -- Opinion Evidence PROBLEMS/CASES Exercise #8 Film Clip from My Cousin Vinny on expert witness testimony 2012 Chap. 9 -- Opinion Evidence