1. CHAP. 9 : OPINION EVIDENCE Prof. JANICKE 2015

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 Chap. 9 -- Opinion Evidence2 2015

3. 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 Evidence3 2015

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 Chap. 9 -- Opinion Evidence4 2015

5. OPINIONS OF NON-EXPERTS RULE 701 ALLOWED IF: 1.BASED ON A PHYSICAL PERCEPTION BY THE WITNESS, AND 2.RATIONALLY BASED, AND 3.HELPFUL TO THE TRIER OF FACT [NOTE: YOUR OPINIONS ABOUT YOUR AGE OR FAMOUS OFFICE-HOLDERS WILL NOT QUALIFY!] Chap. 9 -- Opinion Evidence5 2015

6. “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 Evidence6 2015

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 Chap. 9 -- Opinion Evidence7 2015

8. FURTHER EXAMPLES OF LAY TRADITIONALLY ALLOWED INSANITY HANDWRITING BOTH REQUIRE FOUNDATION OF PHYSICAL PERCEPTION Chap. 9 -- Opinion Evidence8 2015

9. PROBLEMS/CASES 9A 9B Chap. 9 -- Opinion Evidence9 2015

10. EXPERT OPINIONS: 1 ST -HAND PERCEPTION NOT REQUIRED (RULE 702) SPECIAL KNOWLEDGE OR EXPERIENCE IN SOME AREA –SCIENTIFIC, BUSINESS, ARTS, CAR REPAIR, ETC., ETC. –CRIME DETECTION? CONTROVERSIAL Chap. 9 -- Opinion Evidence10 2015

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 Chap. 9 -- Opinion Evidence11 2015

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 2015 Chap. 9 -- Opinion Evidence12

13. PROBLEMS/CASES 9C Daubert DuPont [see posted materials] 9D 9E Chap. 9 -- Opinion Evidence13 2015

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 Chap. 9 -- Opinion Evidence14 2015

15. 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 Chap. 9 -- Opinion Evidence15 2015

16. COURT-APPOINTED EXPERT (RULE 706) GOOD IN THEORY LITIGATORS CRINGE! Chap. 9 -- Opinion Evidence16 2015

17. STIPULATING EXPERTISE OF YOUR EXPERT WITNESS OFTEN VOLUNTEERED BY ADVERSARY SELDOM ACCEPTED –WOULD REMOVE DRAMA –NO FEAR OF ANY OBJECTION Chap. 9 -- Opinion Evidence17 2015

18. PROBLEMS/CASES Film Clip from My Cousin Vinny on expert witness testimony Chap. 9 -- Opinion Evidence18 2015