OPINION EVIDENCE

OPINION EVIDENCE FRE Evid. Code §§

Lay Opinion FRE 701 – if not an expert, the witness’ testimony in the form of opinion or inferences is limited. FRE 701 – if not an expert, the witness’ testimony in the form of opinion or inferences is limited. Must satisfy three conditions: Must satisfy three conditions: (a) rationally based on witness’ perception (a) rationally based on witness’ perception (b) helpful to clear understanding of testimony (b) helpful to clear understanding of testimony (c) not based on scientific, technical or other specialized knowledge w/i scope of Rule 702 (c) not based on scientific, technical or other specialized knowledge w/i scope of Rule 702

Lay Opinion (cont.) Evid. Code § if not an expert, the witness’ testimony in the form of opinion is limited as permitted by law, including but not limited to an opinion that is: Evid. Code § if not an expert, the witness’ testimony in the form of opinion is limited as permitted by law, including but not limited to an opinion that is: (a) rationally based on witness’ perception (a) rationally based on witness’ perception (b) helpful to clear understanding of testimony (b) helpful to clear understanding of testimony

Lay Opinion (cont.) Evid. Code § 802 – a witness may testify on direct examination to the reasons and basis of opinion Evid. Code § 802 – a witness may testify on direct examination to the reasons and basis of opinion The trial court has the discretion to require foundation for the opinion to be established before the opinion is given The trial court has the discretion to require foundation for the opinion to be established before the opinion is given

Lay Opinion (cont.) Evid. Code § 870 – opinion as to sanity – a witness may state opinion as to the sanity of a person when: Evid. Code § 870 – opinion as to sanity – a witness may state opinion as to the sanity of a person when: (a) an intimate acquaintance (a) an intimate acquaintance (b) a subscribing witness to a writing, the validity of which is in dispute, signed by person whose sanity is in question, on issue of sanity at time of signing (b) a subscribing witness to a writing, the validity of which is in dispute, signed by person whose sanity is in question, on issue of sanity at time of signing (c) qualified under §§ 800 or 801 to testify to opinion (c) qualified under §§ 800 or 801 to testify to opinion

Lay Opinion (cont.) Examples of proper lay opinion: Examples of proper lay opinion: Estimates: quantity, weight, height, value, time, distance, measure, velocity Estimates: quantity, weight, height, value, time, distance, measure, velocity Emotions: anger, joy, fear, excitement, love, hatred, sorrow Emotions: anger, joy, fear, excitement, love, hatred, sorrow Character traits: truthfulness, mendacity, violence, peacefulness, goodness Character traits: truthfulness, mendacity, violence, peacefulness, goodness Appearance: age, gender, build, manner of walking, type of hair Appearance: age, gender, build, manner of walking, type of hair Physical/mental condition: healthy, sick, intoxicated, irrational, insane, intelligent, developmentally disabled Physical/mental condition: healthy, sick, intoxicated, irrational, insane, intelligent, developmentally disabled Objects: type of car, color, taste of food/drink, smell Objects: type of car, color, taste of food/drink, smell Conditions: whether, light, darkness, visibility, smell Conditions: whether, light, darkness, visibility, smell

Expert Opinion FRE 702 FRE 702 Applies to scientific, technical or other specialized knowledge Applies to scientific, technical or other specialized knowledge Must assist the trier of fact Must assist the trier of fact In understanding the evidence In understanding the evidence In determining a fact in issue In determining a fact in issue

Expert Opinion FRE 702 FRE 702 Must be an expert by reason of knowledge, skill, experience, training or education Must be an expert by reason of knowledge, skill, experience, training or education

Expert Opinion FRE 702 FRE 702 May testify to opinion or otherwise, if May testify to opinion or otherwise, if 1) the testimony is based on sufficient facts or data; 1) the testimony is based on sufficient facts or data; 2) the testimony is the product of reliable principles or methods; 2) the testimony is the product of reliable principles or methods; 3) the witness has applied the principles and methods reliably to the facts of the case 3) the witness has applied the principles and methods reliably to the facts of the case

Expert Opinion FRE 703 FRE 703 The facts or data in the case on which the expert bases an opinion or inference may be perceived or known at or before the hearing The facts or data in the case on which the expert bases an opinion or inference may be perceived or known at or before the hearing

Expert Opinion FRE 703 FRE 703 If of a type reasonably relied on by experts in the field in forming opinions or inferences, the data or facts relied on need not be admissible in evidence for the opinion or inference to be admitted If of a type reasonably relied on by experts in the field in forming opinions or inferences, the data or facts relied on need not be admissible in evidence for the opinion or inference to be admitted

Expert Opinion FRE 703 FRE 703 Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect

Expert Opinion FRE 704 – opinion on ultimate issue FRE 704 – opinion on ultimate issue (a) subject to sub.(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 (a) subject to sub.(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) bar on testifying to whether or not a criminal defendant had required mental state where it is an element of offense (b) bar on testifying to whether or not a criminal defendant had required mental state where it is an element of offense Accord Evid. Code § 805 and Penal Code §§ Accord Evid. Code § 805 and Penal Code §§

Expert Opinion FRE 705 FRE 705 The expert may give opinion without first giving reasons for that opinion unless the court requires otherwise The expert may give opinion without first giving reasons for that opinion unless the court requires otherwise The expert may always be required to disclose reasons and underlying facts and data on cross-examination The expert may always be required to disclose reasons and underlying facts and data on cross-examination Accord Evid. Code § 802 Accord Evid. Code § 802

Expert Opinion FRE 706 FRE 706 The court may on its own motion appoint an independent expert The court may on its own motion appoint an independent expert Accord Evid. Code § 730 Accord Evid. Code § 730

Expert Opinion (cont.) Evid. Code § 801 – if a witness is testifying as an expert, opinion testimony is limited; must be: Evid. Code § 801 – if a witness is testifying as an expert, opinion testimony is limited; must be: (a) related to a subject that is sufficiently beyond common experience that the expert opinion would assist the trier of fact; and (a) related to a subject that is sufficiently beyond common experience that the expert opinion would assist the trier of fact; and (b) based on a matter, … (b) based on a matter, …

Expert Opinion (cont.) Evid. Code § 801(b) – based on a matter, … Evid. Code § 801(b) – based on a matter, … Including the expert’s special knowledge, skill, training and education Including the expert’s special knowledge, skill, training and education

Expert Opinion (cont.) Evid. Code § 801(b) – based on a matter, … Evid. Code § 801(b) – based on a matter, … perceived by or personally known to the witness perceived by or personally known to the witness

Expert Opinion (cont.) Evid. Code § 801(b) – based on a matter, … Evid. Code § 801(b) – based on a matter, … Or made known to the expert at or before the hearing Or made known to the expert at or before the hearing

Expert Opinion (cont.) Evid. Code § 801(b) – based on a matter, … Evid. Code § 801(b) – based on a matter, … Whether or not admissible Whether or not admissible

Expert Opinion (cont.) Evid. Code § 801(b) – based on a matter, … Evid. Code § 801(b) – based on a matter, … That is of the type that reasonably may be relied on by an expert in forming an opinion on the subject to which the testimony relates, That is of the type that reasonably may be relied on by an expert in forming an opinion on the subject to which the testimony relates,

Expert Opinion (cont.) Evid. Code § 801(b) – based on a matter, … Evid. Code § 801(b) – based on a matter, … Unless an expert is precluded by law from using such matter as a basis for his opinion Unless an expert is precluded by law from using such matter as a basis for his opinion

Expert Opinion (cont.) Experts differ from lay witnesses in that they are allowed to testify and give opinions that may not be based on their personal observations Experts differ from lay witnesses in that they are allowed to testify and give opinions that may not be based on their personal observations

Expert Opinion (cont.) An expert can draw an inference in 3 ways: An expert can draw an inference in 3 ways: 1) on the basis of evidence available to the jury 1) on the basis of evidence available to the jury 2) hypothetical question based on evidence admitted in case 2) hypothetical question based on evidence admitted in case 3) provide an opinion based on reviewing the type of information such an expert would reasonably rely on 3) provide an opinion based on reviewing the type of information such an expert would reasonably rely on

Expert Opinion (cont.) Note: allowing opinions based on the type of information such an expert in the field would rely on conforms the evidentiary practice with the customs and practices of the experts themselves. Note: allowing opinions based on the type of information such an expert in the field would rely on conforms the evidentiary practice with the customs and practices of the experts themselves. If sound medical practices allow doctors to reach important medical decisions on information provided by patients and specialists, such as radiologists, then those decisions should be sufficiently reliable to be used in court. If sound medical practices allow doctors to reach important medical decisions on information provided by patients and specialists, such as radiologists, then those decisions should be sufficiently reliable to be used in court.

Expert Opinion (cont.) However, information customarily relied on by an expert in the field does not mean such information is admissible. However, information customarily relied on by an expert in the field does not mean such information is admissible. Hearsay and best or secondary evidence rule objections may apply. Hearsay and best or secondary evidence rule objections may apply. This concept is balanced against the idea that the finder of fact may need to know what that information is to determine the weight to give to the expert opinion This concept is balanced against the idea that the finder of fact may need to know what that information is to determine the weight to give to the expert opinion

Expert Opinion (cont.) Cross examining experts: Same rules as apply to any witness Same rules as apply to any witness Additionally, may cross on data or facts relied on in forming opinion Additionally, may cross on data or facts relied on in forming opinion

Expert Opinion (cont.) Cross examining experts: May cross on data or facts NOT relied on in forming opinion or UNAWARE of May cross on data or facts NOT relied on in forming opinion or UNAWARE of Some limitations may apply depending on 1) whether data has been admitted into evidence; 2) whether expert referred to, considered or relied on material; 3) whether the publication is established as reliable authority by testimony of expert or another expert testifying in case Some limitations may apply depending on 1) whether data has been admitted into evidence; 2) whether expert referred to, considered or relied on material; 3) whether the publication is established as reliable authority by testimony of expert or another expert testifying in case FRE somewhat more generous to cross-examiner FRE somewhat more generous to cross-examiner

Expert Opinion (cont.) Cross examining experts: See People v. Doolin (2009) 45 Cal.4 th 390, for full discussion of cross of expert and rebuttal case. See People v. Doolin (2009) 45 Cal.4 th 390, for full discussion of cross of expert and rebuttal case.

Expert Opinion (cont.) Evid. Code § Evid. Code § Special rules of evidence applicable to opinion evidence on ascertaining the value of real property Special rules of evidence applicable to opinion evidence on ascertaining the value of real property