1. CHAP. 9 : OPINION EVIDENCE P. JANICKE 2011

2. Chap. 9 -- Opinion Evidence2 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

3. 2011Chap. 9 -- Opinion Evidence3 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

4. 2011Chap. 9 -- Opinion Evidence4 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

5. 2011Chap. 9 -- Opinion Evidence5 OPINIONS OF NON-EXPERTS RULE 701 ALLOWED IF: 1.RATIONALLY BASED, 2.BASED ON A PHYSICAL PERCEPTION BY THE WITNESS, AND 3.HELPFUL TO THE TRIER OF FACT

6. 2011Chap. 9 -- Opinion Evidence6 “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

7. 2011Chap. 9 -- Opinion Evidence7 EXAMPLES OF ADMISSIBLE OPINIONS HE WAS DRUNK HE WAS UPSET SHE WAS NERVOUS SHE WAS ANGRY ALL REQUIRE FOUNDATION OF PHYSICAL PERCEPTION

8. 2011Chap. 9 -- Opinion Evidence8 FURTHER EXAMPLES (TRADITIONALLY ALLOWED) INSANITY HANDWRITING BOTH REQUIRE FOUNDATION OF PHYSICAL PERCEPTION

9. 2011Chap. 9 -- Opinion Evidence9 EXPERT OPINIONS (RULE 702) SPECIAL KNOWLEDGE OR EXPERIENCE IN SOME AREA –SCIENTIFIC, BUSINESS, ARTS, CAR REPAIR, ETC., ETC. –CRIME DETECTION IS A CONTROVERSIAL AREA

10. 2011Chap. 9 -- Opinion Evidence10 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

11. 2011Chap. 9 -- Opinion Evidence11 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

12. 2011Chap. 9 -- Opinion Evidence12 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

13. 2011Chap. 9 -- Opinion Evidence13 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

14. 2011Chap. 9 -- Opinion Evidence14 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

15. 2011Chap. 9 -- Opinion Evidence15 COURT-APPOINTED EXPERT (RULE 706) GOOD IN THEORY LITIGATORS CRINGE!

16. 2011Chap. 9 -- Opinion Evidence16 STIPULATING EXPERTISE OF YOUR EXPERT WITNESS OFTEN VOLUNTEERED BY ADVERSARY SELDOM ACCEPTED –WOULD REMOVE DRAMA –NO FEAR OF OBJECTION