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Evidence Professor Cioffi 2/22/2011 – 2/23/2011 2

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Rule 701. Opinion Testimony by Lay Witnesses [Current Rule] If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule

Rule 701. Opinion Testimony by Lay Witnesses [Effective 12/1/2011] If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: (a)rationally based on the witness’s perception; (b)helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and (c)not based on scientific, technical, or other specialized knowledge within the scope of Rule

4-Part Analysis for Admissibility under Rule 701 To be admissible, lay opinion testimony must be: 1) Based on personal perception 2) Rationally based on that perception 3) Helpful to the trier of fact 4) Not based on specialized skill, knowledge, training or experience 6

Rule 702. Testimony by Experts [Current Rule] If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. 7

Rule 702. Testimony by Expert Witnesses [Effective 12/1/2011] A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a)the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (a)the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b)the testimony is based on sufficient facts or data; (c)the testimony is the product of reliable principles and methods; and (d)the expert has reliably applied the principles and methods to the facts of the case. 8

Rule 703. Bases of Opinion Testimony by Experts [Current Rule] The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect. 9

Rule 703. Bases of an Expert’s Opinion Testimony [Effective 12/1/2011] An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect. 10

5-Part Analysis for Admissibility of Expert Testimony under Federal Rules 702, 703 1) Expert Qualification: Is the witness qualified as an expert? 2) Subject Matter Test: Upon what subject matter may the expert testify? 3) Reliability Test: Is the expert using reliable methods and principles? 4) Proper Basis Test: Is the expert’s opinion founded upon a proper basis or bases? 5) Probative Value v. Prejudice: Is the probative value of the expert testimony substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury? 11

Daubert Factors whether the theory “can be (and has been) tested”; whether the theory “can be (and has been) tested”; “whether the theory or technique has been subjected to peer review and publication”; “whether the theory or technique has been subjected to peer review and publication”; the potential rate of error; and, borrowing from the common law (Frye) test, the potential rate of error; and, borrowing from the common law (Frye) test, whether the theory enjoys general acceptance in the scientific community. whether the theory enjoys general acceptance in the scientific community. 12

Other Reliability Factors Developed by the Courts Post-Daubert Whether the witnesses propose to testify based on matters growing naturally out of research they have conducted independently of the litigation, or whether they have developed their opinions solely and expressly for the purpose of testifying. Whether the witnesses propose to testify based on matters growing naturally out of research they have conducted independently of the litigation, or whether they have developed their opinions solely and expressly for the purpose of testifying. Whether the proposed witness’s conclusion represents an unfounded extrapolation from the underlying data. Whether the proposed witness’s conclusion represents an unfounded extrapolation from the underlying data. Whether the witness has adequately accounted for alternative explanations for the effect whose cause is at issue. Whether the witness has adequately accounted for alternative explanations for the effect whose cause is at issue. Whether the witnesses were as careful, in formulating their testimony, as they would be in their regular professional work. Whether the witnesses were as careful, in formulating their testimony, as they would be in their regular professional work. Whether the offered field of expertise is capable of reliably reaching results of the type proposed by the witness. Whether the offered field of expertise is capable of reliably reaching results of the type proposed by the witness. 13

Other Reliability Factors Developed by the Courts Post-Daubert (cont’d) Whether the witness relied unduly on anecdotal evidence in arriving at an opinion. Whether the witness relied unduly on anecdotal evidence in arriving at an opinion. Whether the witness relied unduly on the temporal proximity between the occurrence of an event and the onset of illness or injury. Whether the witness relied unduly on the temporal proximity between the occurrence of an event and the onset of illness or injury. Whether the witness has sufficiently connected the proposed testimony with the facts of the case. Whether the witness has sufficiently connected the proposed testimony with the facts of the case. Whether any hypotheses relied on in the formulation of the expert’s opinion have actually been tested. Whether any hypotheses relied on in the formulation of the expert’s opinion have actually been tested. Whether the witness’s methodology is subjective. Whether the witness’s methodology is subjective. 14

Rule 704. Opinion on Ultimate Issue [Current Rule] a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone. 15

Rule 704. Opinion on an Ultimate Issue [Effective 12/1/2011] (a)In General — Not Automatically Objectionable. An opinion is not objectionable just because it embraces an ultimate issue. (b)Exception. In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. (b)Exception. In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. 16

Rule 705. Disclosure of Facts or Data Underlying Expert Opinion [Current Rule] The expert may testify in terms of opinion or inference and give reasons therefor without first testifying to the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination. 17

Rule 705. Disclosure the Facts or Data Underlying an Expert’s Opinion [Effective 12/1/2011] Unless the court orders otherwise, an expert may state an opinion — and give the reasons for it — without first testifying to the underlying facts or data. But the expert may be required to disclose those facts or data on cross-examination. 18

Rule 706. Court Appointed Experts [Current Rule] a) Appointment. The court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection. An expert witness shall not be appointed by the court unless the witness consents to act. A witness so appointed shall be informed of the witness’ duties by the court in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate. A witness so appointed shall advise the parties of the witness’ findings, if any; the witness’ deposition may be taken by any party; and the witness may be called to testify by the court or any party. The witness shall be subject to cross-examination by each party, including a party calling the witness. 19

Rule 706 (cont’d) [Current Rule] b) Compensation. Expert witnesses so appointed are entitled to reasonable compensation in whatever sum the court may allow. The compensation thus fixed is payable from funds which may be provided by law in criminal cases and civil actions and proceedings involving just compensation under the fifth amendment. In other civil actions and proceedings the compensation shall be paid by the parties in such proportion and at such time as the court directs, and thereafter charged in like manner as other costs. 20

Rule 706 (cont’d) [Current Rule] c) Disclosure of appointment. In the exercise of its discretion, the court may authorize disclosure to the jury of the fact that the court appointed the expert witness. d) Parties’ experts of own selection. Nothing in this rule limits the parties in calling expert witnesses of their own selection. 21

Rule 706. Court-Appointed Expert Witness [Effective 12/1/2011] (a)Appointment Process. On a party’s motion or on its own, the court may order the parties to show cause why expert witnesses should not be appointed and may ask the parties to submit nominations. The court may appoint any expert witness that the parties agree on and any of its own choosing. But the court may only appoint someone who consents to act. (b)Expert’s Role. The court must inform the expert in writing of the expert’s duties and have a copy filed with the clerk. Or the court may so inform the expert at a conference in which the parties have an opportunity to participate. The expert: 22

Rule 706. Court-Appointed Expert Witness (cont’d) [Effective 12/1/2011] (1)must advise the parties of any findings the expert makes; (2)may be deposed by any party; (3)may be called to testify by the court or any party; and (4)may be cross-examined by any party, including the party that called the expert. 23

Rule 706. Court-Appointed Expert Witness (cont’d) [Effective 12/1/2011] (c)Compensation. The expert is entitled to whatever reasonable compensation the court allows. The compensation is payable as follows: (1)in a criminal case or in a civil case involving just compensation under the Fifth Amendment, from any funds that are provided by law; and (2)in any other civil case, by the parties in the proportion and at the time that the court directs — and the compensation is then charged like other costs. 24

Rule 706. Court-Appointed Expert Witness (cont’d) [Effective 12/1/2011] (d)Disclosing the Appointment. The court may authorize disclosure to the jury that the court appointed the expert. (e)Parties’ Choice of Their Own Experts. This rule does not limit a party in calling its own experts. (e)Parties’ Choice of Their Own Experts. This rule does not limit a party in calling its own experts. 25

Evid R 702 (Ohio) Testimony by Experts A witness may testify as an expert if all of the following apply: A. The witness’ testimony either relates to matters beyond the knowledge or experience possessed by lay persons or dispels a misconception common among lay persons; B. The witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony; 26

Evid R 702 (cont’d) C. The witness’ testimony is based on reliable scientific, technical, or other specialized information. To the extent that the testimony reports the result of a procedure, test, or experiment, the testimony is reliable only if all of the following apply: 1. The theory upon which the procedure, test, or experiment is based is objectively verifiable or is validly derived from widely accepted knowledge, facts, or principles; 27

Evid R 702 (cont’d) 2. The design of the procedure, test, or experiment reliably implements the theory; 3. The particular procedure, test, or experiment was conducted in a way that will yield an accurate result. 28

Evid R 703 (Ohio) Bases of Opinion Testimony by Experts The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by the expert or admitted in evidence at the hearing. 29

Evid R 704 (Ohio) Opinion on Ultimate Issue Testimony in the form of an opinion or inference otherwise admissible is not objectionable solely because it embraces an ultimate issue to be decided by the trier or fact. 30

Evid R 705 (Ohio) Disclosure of Facts or Data Underlying Expert Opinion The expert may testify in terms of opinion or inference and give the expert’s reasons therefor after disclosure of the underlying facts or data. The disclosure may be in response to a hypothetical question or otherwise. 31

Evid R 706 (Ohio) Learned Treatises for Impeachment – Repealed Evid. R. 706 is repealed, effective July 1, 2006, in light of the adoption of Evid. R. 803(18). 32

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