EVIDENCE Fall 2013 Professor Ana M. Otero Article VII - Lay O inion an! E" ert #esti$ony 1.

R %02 requires that a witness have ersonal knowledge of the subject matter about which the witness testifies. FYI: The trial judge does not decide whether or not a witness has firsthand knowledge b a !re!onderance of the evidence" but onl whether sufficient evidence to su!!ort a finding of firsthand knowledge has been introduced" i.e. a !rima facie standard. If sufficient evidence has been adduced" the witness ma testif " and the jur decides whether or not the witness has firsthand knowledge. In effect" R. #$% is a s!eciali&ed a!!lication of the conditional relevanc of R. 1$'(b). %. * la witness can offer o!inion testimon onl if it is: rationally based on the &itness's !erce!tions" (el f)l to the trier of fact" and +ot e" ert o!inion under Rule ,$%. .hat is the !rimar !ur!ose of Rule ,$%/ Governs the admissibility of expert testimony (determined by the court). Talks about what makes an expert qualify. [Daubert otion can be filed for determination!

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'. 0asmin is a witness in a negligence case arising from a car accident. *t trial" which of the following questions will be allowed under R. ,$1/ NO *E+ 1an ou tell us" 0asmin" how fast the car was going/ (not an expert) .as the car moving fast/ (sensory perception)

2. T3F R. ,$1 is a rule of !reference as to the form of testimon " not a rule of e4clusion. 5rimar sensor im!ressions are !referred to o!inion" conclusions" or inferences drawn from those im!ressions. #. The requirement that a witness6s o!inion must be 7rationall based on the witness6s !erce!tions com!rises two elements: 1) it echoes the ersonal ,no&le!-e requirement of Rule %028 and mandates that the o!inion must be one that a reasonable !erson could draw from the underl ing facts. ,. E" ert testimon is onl admissible if it meets the reliabilit requirements of R. .02.

9. .hich of the following o!inions b la witnesses do ou believe have been admitted b the federal courts/ *E+ *E+ *E+ NO *E+ NO NO *n o!inion that a truck driver was in 7total control: when his truck was struck. *n o!inion that a !erson shown in a videota!e or bank surveillance !hoto was the defendant. *n o!inion concerning another !erson6s state of mind or knowledge. *n o!inion as to how fast a !erson was driving. *n o!inion that a business o!eration was a 7scam.: *n o!inion that a certain drug can affect brain function. *n o!inion that someone can be categori&ed as schi&o!hrenic. 1

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If ou want to object to la o!inion testimon " what arguments would ou make/ "ot qualified as an expert under #ule $%&. ['ook at the lan(ua(e of #ule $%)!

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R. .02 governs the admissibilit of e4!ert testimon . <4!ert o!inion ma be admissible if: The testi$ony ma assist the trier of fact The &itness is /)alifie! as an e4!ert" The testi$ony is based on relia0le rinci les an! $et(o!s The testimon is the ro!)ct of reliable facts and !ata the e4!ert has rinci les a!!lied the $et(o!s and methods to the facts of the case.

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.hat qualifies an e4!ert/ =,ill >no&le!-e <" erience <!)cation Trainin-

1-. In this case" the ?nited =tates =u!reme 1ourt !rovided the following guidelines under Rule ,$% for the admissibilit of e4!ert o!inions based u!on 7scientific" technical" or s!eciali&ed knowledge.: Daubert v. errell Dow *harmaceuticals 1(at are t(ose -)i!elines2 1. %. -. '. 2. 1'. 12. 1an the t(eory or technique be tested8 @as the theor or technique been teste!8 @as the theor or technique been subject to eer review or )0lication8 .hat is the actual or !otential rate of error of the theor or technique8 Is the theor or technique generall acce te! b the !ertinent scientific communit .

The burden of establishing a witness6s qualification lies with his ro onent. The e4!ert witness6 qualification is determined b the 3)!-e 4 co)rt.

1#. Ardinaril " o!!osing counsel should be given the o!!ortunit to conduct 5oire !ire e4amination to test the qualifications of a tendered e4!ert. 1,. ?nder R. ,$%" e4!ert testimon is subject to trial court6s assessment as to whether or not the evidence is reliable and hel!ful to the trier of fact. Bmakes assessment on !reCtrial hearingD 19. In this case" the !laintiffs claimed that their serious birth defects stemmed from their mothers having taken a drug called Eendectin. Da)0ert 5. Merrell Do& P(ar$ace)ticals %

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T3F

<4!ert witnesses !la a central role in litigation.

%$. The 7general acce!tance: test comes from this case" Frye6 which involved the admissibilit of !ol gra!h evidence. Bwas overruled in ,$%D %1. .hat is a 7Faubert: motion/ *re+trial hearin( that determines the qualifications of the expert throu(h a series of factors. %%. This case dealt with the admissibilit of engineering testimon offered to !rove that the blowout of a tire on the !laintiff6s minivan was caused b a defect that brought about an accident in which a !assenger was killed. 7)$0o 5. CarMic(ael %-. *ccording to Gargaret Eerger" what is the im!act of the Faubert trilog /

ar(aret Davis article ,-./T01" T2. #.'0340'0T5 16 .7*.#T5 T./T0 1"58 91-#T ,-./T01".D T2. 340'0T5 T1 -"D.#/T3"D /90."T0609 T2.1#0#./ 4.93-/. T2.5 3#. G3T. :..*.#/; 4-T T2.5 "..D T1 -/. 3 /.T 16 /T3"D3#D/ 0" .79'-D0"G 1# .0"9'-D0"G .<0DD."9. 6#1 T2. T#03'. %'. The trial court has an obligation to evaluate the reliabilit of e4!ert o!inion testimon in accordance with the standard develo!ed b the =u!reme 1ourt in Da)0ert. %2. *fter Faubert" the =u!reme 1ourt insisted that trial judges have the res!onsibilit to act as 8-ate,ee ers9 and to admit scientific o!inion onl if it is shown to be reliable. %#. *s !art of its gateCkee!ing functions" the court ma conduct a hearing to consider the reliabilit of the !ro!osed e4!ert testimon once the !arties have e4changed e4!ert re!orts and other information !ursuant to the federal rules. .hat is this hearing generall called/ Da)0ert (earin%,. T3F In evaluating the reliabilit of the e4!ert testimon " the court ma e4amine the inconsistencies and the failure of the e4!ert to conduct adequate inquir or testing of the theor . %9. For man ears" federal courts held that the admissibilit of novel scientific evidence was governed b the Frye test" which required the !ro!onent of such evidence to demonstrate that the scientific evidence was -enerally acce te! in the relevant scientific communit . In 1::36 the nowCfamous Faubert case held that the Fr e test was no longer viable. %;. The %$$$ amendments to R. ,$% make clear that the trial judge6s gatekee!ing function a!!lies to e4!ert testimon based on technical and other s!eciali&ed knowledge as well as scientific testimon . This codifies the o!inion in 7)$0o. BFaubert can be used on 7soft: science8 it6s a 7nonCe4haustive: list of factorsD -$. *ccording to R. ,$-" on what ma the e4!ert base her o!inion/ =0f experts in the particular field would reasonably rely on those kinds of facts or data in formin( an opinion on the sub>ect; they need not be admissible for the opinion to be admitted.? .xpert may review reports; data; -

-1. Rule .03 focuses on the t !es of facts !articular to the litigation that serve as the basis for an e4!ert6s o!inion. The manner in which the e4!ert has acquired his e4!ertise C through formal education" lectures" e4!erience" reading" etc.. falls within the bounds of R. .02 -%. T3F Rule ,$- !rovides that e4!ert o!inions ma be based on facts or data not admissible in evidence if the are of a t !e reasonabl relied u!on b e4!erts in the witness6s field in drawing conclusions or inferences u!on the subject. The rule goes be ond eliminating the need to introduce otherwise admissible underl ing data8 e4!ert o!inion ma now be !redicated solel on inadmissible evidence such as hearsa . --. This rule states that an e4!ert ma e4!ress an o!inion that addresses an ultimate issue of fact" but o!inions or inferences regarding the mental state of the accused are reserved for the trier of fact when that mental state is an element of the crime charged or a defense to that crime. ;)le .0< -'. In t(e a!5isory notes Rule ,$'(b) was enacted in the wake of the acquittal of this man. =o(n >en,ly Case It bars e4!erts who are testif ing as to an accused6s mental state or condition from stating whether the accused had or lacked a mental state or condition that constitutes an element of" or defense to" the crime charged. -2. T3F Rule ,$' !ermits the e4!ression of o!inions b e4!erts even though the relate to ultimate (guilt or not) issues" if the o!inion would assist the jur in making its decision. -#. *dditional requirements must be met before o!inions on an ultimate issue ma be admitted. ?nder Rules .01 and .02 " o!inions must be hel!ful to the jur " and under R. <03 evidence will be e4cluded if its !rejudicial nature outweighs its !robative value or if it wastes time. -,. T3F Rule ,$2 governs the !resentation of e4!ert testimon . Fesigned to eliminate the need to resort to a h !othetical question in man instances" it affords counsel greater fle4ibilit in the manner in which she ma !resent e4!ert testimon . -9. This rule em!owers the court to a!!oint an e4!ert of its own choosing. ;)le .0% ?@attle of t(e E" ertsA &ants to sto t(is to ,ee i$ artiality. -;. .hat is the !remise driving Rule ,$#. @ud(es want to present =neutral? experts to avoid the =battle of the experts.?

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