1. CHAP. 9 : OPINION EVIDENCE
Prof. JANICKE
2016

2. 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 Opinion Evidence

3. 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 Opinion Evidence

4. 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 Opinion Evidence

5. 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 Opinion Evidence

6. 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 Opinion Evidence

7. 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 Opinion Evidence

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

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

10. 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 Opinion Evidence

11. 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 Opinion Evidence

12. 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 Opinion Evidence

13. Chap. 9 -- Opinion Evidence
PROBLEMS/CASES 9C
Daubert
DuPont [see posted materials] 9D 9E
2016
Chap Opinion Evidence

14. 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 Opinion Evidence

15. 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 Opinion Evidence

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

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

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