CHAP. 9 :OPINION EVIDENCE

P. JANICKE

2014

Chap. 9 -- Opinion Evidence 2

OPINIONS ARE GENERALLY INADMISSIBLE

• RULE 602 REQUIRES ACTUAL “KNOWLEDGE” FOR MOST TYPES OF EVIDENCE

• SINCE KNOWLEDGE IS AN ILL-DEFINED CONCEPT, THE LINE BETWEEN KNOWLEDGE AND OPINION IS ILL DEFINED

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Chap. 9 -- Opinion Evidence 3

OPINIONS

• ABOUT 98% OF WHAT WE THINK WE “KNOW” ARE OPINIONS

• OPINIONS CONSIST OF: – FACTS LEARNED FROM OTHERS WHO

MAY ACTUALLY KNOW THEM– CONCLUSIONS WE HAVE DRAWN

FROM OUR OWN OBSERVATIONS

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Chap. 9 -- Opinion Evidence 4

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 FURTHER ANALYSIS

• SOME KINDS OF OPINIONS ARE ADMISSIBLE

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Chap. 9 -- Opinion Evidence 5

OPINIONS OF NON-EXPERTSRULE 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 FAMOUS OFFICE-HOLDERS WILL NOT QUALIFY]

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Chap. 9 -- Opinion Evidence 6

• “HELPFUL” MEANS THERE’S NO OTHER FEASIBLE WAY TO CONVEY THE WITNESS’S OBSERVATION

• IF STATING A FEW FACTS CAN GIVE THE PICTURE, THE OPINION IS DISALLOWED

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Chap. 9 -- Opinion Evidence 7

EXAMPLES OF ADMISSIBLE OPINIONS

• HE WAS DRUNK• HE WAS UPSET• SHE WAS NERVOUS• SHE WAS ANGRY

ALL REQUIRE FOUNDATION OF A PHYSICAL PERCEPTION

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Chap. 9 -- Opinion Evidence 8

FURTHER EXAMPLES(TRADITIONALLY ALLOWED)

• INSANITY

• HANDWRITING

BOTH REQUIRE FOUNDATION OF PHYSICAL PERCEPTION

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PROBLEMS/CASES

• 9A

• 9B

Chap. 9 -- Opinion Evidence 92014

Chap. 9 -- Opinion Evidence 10

EXPERT OPINIONS(RULE 702)

• SPECIAL KNOWLEDGE OR EXPERIENCE IN SOME AREA

– SCIENTIFIC, BUSINESS, ARTS, CAR REPAIR, ETC., ETC.

– CRIME DETECTION IS A CONTROVERSIAL AREA

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Chap. 9 -- Opinion Evidence 11

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

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Chap. 9 -- Opinion Evidence 12

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

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PROBLEMS/CASES

• 9C

• Daubert

• DuPont [see posted materials]

• 9D

Chap. 9 -- Opinion Evidence 132014

Chap. 9 -- 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

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Chap. 9 -- Opinion Evidence 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

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Chap. 9 -- Opinion Evidence 16

COURT-APPOINTED EXPERT(RULE 706)

• GOOD IN THEORY

• LITIGATORS CRINGE!

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Chap. 9 -- Opinion Evidence 17

STIPULATING EXPERTISE OF YOUR EXPERT WITNESS

• OFTEN VOLUNTEERED BY ADVERSARY

• SELDOM ACCEPTED– WOULD REMOVE DRAMA– NO FEAR OF OBJECTION ONCE THE

OFFER IS MADE

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PROBLEMS/CASES

• Exercise #8

• Film Clip from My Cousin Vinny on expert witness testimony

Chap. 9 -- Opinion Evidence 182014