1. CHAP. 9 : OPINION EVIDENCE
P. JANICKE
2012

2. OPINIONS ARE GENERALLY INADMISSIBLE
RULE 602 REQUIRES ACTUAL “KNOWLEDGE” FOR MOST TYPES OF EVIDENCE
SINCE KNOWLEDGE IS ILL-DEFINED CONCEPT, THE LINE BETWEEN KNOWLEDGE AND OPINION IS ILL DEFINED
2012
Chap Opinion Evidence

3. Chap. 9 -- Opinion Evidence
OPINIONS
ABOUT 98% OF WHAT WE THINK WE “KNOW”
OPINIONS CONSIST OF:
FACTS LEARNED FROM OTHERS WHO MAY KNOW THEM
CONCLUSIONS WE HAVE DRAWN FROM OUR OWN OBSERVATIONS
2012
Chap Opinion Evidence

4. Chap. 9 -- Opinion Evidence
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 ANALYSIS
SOME KINDS OF OPINIONS ARE ADMISSIBLE
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Chap Opinion Evidence

5. OPINIONS OF NON-EXPERTS RULE 701
ALLOWED IF:
RATIONALLY BASED,
BASED ON A PHYSICAL PERCEPTION BY THE WITNESS, AND
HELPFUL TO THE TRIER OF FACT
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Chap Opinion Evidence

6. Chap. 9 -- Opinion Evidence
“HELPFUL” MEANS THERE’S NO OTHER FEASIBLE WAY TO CONVEY THE WITNESS’S OBSERVATION
IF STATING A FEW FACTS GIVES THE PICTURE, THE OPINION IS DISALLOWED
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Chap Opinion Evidence

7. EXAMPLES OF ADMISSIBLE OPINIONS
HE WAS DRUNK
HE WAS UPSET
SHE WAS NERVOUS
SHE WAS ANGRY
ALL REQUIRE FOUNDATION OF PHYSICAL PERCEPTION
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Chap Opinion Evidence

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

9. Chap. 9 -- Opinion Evidence
PROBLEMS/CASES 9A 9B
2012
Chap 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
2012
Chap 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 Opinion Evidence

12. Chap. 9 -- Opinion Evidence
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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Chap Opinion Evidence

13. SAME ROLE AS [NEARLY] ALWAYS
JUDGE IS A SCREEN FOR EVIDENCE
POSITIVE FINDING ISN’T DETERMINATIVE
EXCEPTION: JUDICIAL NOTICE IN A CIVIL CASE
NEGATIVE FINDING SHUTS OFF THE EVIDENCE
2012
Chap Opinion Evidence

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

15. 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 Opinion Evidence

16. 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; CAN ALWAYS GO TO THE BOTTOM LINE
2012
Chap Opinion Evidence

17. COURT-APPOINTED EXPERT (RULE 706)
GOOD IN THEORY
LITIGATORS CRINGE!
2012
Chap Opinion Evidence

18. STIPULATING EXPERTISE OF YOUR EXPERT WITNESS
OFTEN VOLUNTEERED BY ADVERSARY
SELDOM ACCEPTED
WOULD REMOVE DRAMA
NO FEAR OF OBJECTION
2012
Chap Opinion Evidence

19. Chap. 9 -- Opinion Evidence
PROBLEMS/CASES
Exercise #8
Film Clip from My Cousin Vinny on expert witness testimony
2012
Chap Opinion Evidence