CHAP. 9 : OPINION EVIDENCE Prof. JANICKE 2016

OPINIONS ARE GENERALLY INADMISSIBLE RULE 602 REQUIRES ACTUAL “KNOWLEDGE” FOR MOST TYPES OF EVIDENCE KNOWLEDGE MEANS PHYSICAL PERCEPTIONS ONLY! IN A PRACTICAL JUSTICE SYSTEM, WE NEED SOME ROOM FOR OPINIONS 2016 Chap. 9 -- Opinion Evidence

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 2016 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 2016 Chap. 9 -- Opinion Evidence

OPINIONS OF NON-EXPERTS RULE 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!] 2016 Chap. 9 -- Opinion Evidence

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 2016 Chap. 9 -- Opinion Evidence

EXAMPLES OF ADMISSIBLE LAY OPINIONS HE WAS DRUNK HE WAS UPSET SHE WAS NERVOUS SHE WAS ANGRY ALL REQUIRE FOUNDATION OF A PHYSICAL PERCEPTION 2016 Chap. 9 -- Opinion Evidence

FURTHER EXAMPLES OF LAY TRADITIONALLY ALLOWED INSANITY HANDWRITING BOTH REQUIRE FOUNDATION OF PHYSICAL PERCEPTION 2016 Chap. 9 -- Opinion Evidence

Chap. 9 -- Opinion Evidence PROBLEMS/CASES 9A 9B 2016 Chap. 9 -- Opinion Evidence

EXPERT OPINIONS: 1ST-HAND PERCEPTION NOT REQUIRED (RULE 702) SPECIAL KNOWLEDGE OR EXPERIENCE IN SOME AREA SCIENTIFIC, BUSINESS, ARTS, CAR REPAIR, ETC., ETC. CRIME DETECTION? CONTROVERSIAL 2016 Chap. 9 -- Opinion Evidence

EXPERT’S METHODOLOGY MUST BE RELIABLE CHECKED INITIALLY BY THE JUDGE 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 2016 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 MISTAKES MAY HAVE APPEARED RE. CARRYING OUT THE METHODOLOGY 2016 Chap. 9 -- Opinion Evidence

Chap. 9 -- Opinion Evidence PROBLEMS/CASES 9C Daubert DuPont [see posted materials] 9D 9E 2016 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 2016 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; EXPERT CAN ALWAYS GO TO THE BOTTOM LINE, IF METHODOLOGY IS GOOD Fed. test: Unable to appreciate (i) nature/quality, or (ii) wrongfulness Texas test: Knew act was wrong 2016 Chap. 9 -- Opinion Evidence

COURT-APPOINTED EXPERT (RULE 706) GOOD IN THEORY LITIGATORS CRINGE! 2016 Chap. 9 -- Opinion Evidence

STIPULATING EXPERTISE OF YOUR EXPERT WITNESS OFTEN VOLUNTEERED BY ADVERSARY SELDOM ACCEPTED WOULD REMOVE DRAMA NO FEAR OF ANY OBJECTION 2016 Chap. 9 -- Opinion Evidence

Chap. 9 -- Opinion Evidence PROBLEMS/CASES Film Clip from My Cousin Vinny on expert witness testimony 2016 Chap. 9 -- Opinion Evidence