CHAP 9 OPINION EVIDENCE P JANICKE 2011 Chap

CHAP. 9 : OPINION EVIDENCE P. JANICKE 2011 Chap. 9 -- Opinion Evidence

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 2011 Chap. 9 -- Opinion Evidence 2

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 2011 Chap. 9 -- Opinion Evidence 3

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 2011 Chap. 9 -- Opinion Evidence 4

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 2011 Chap. 9 -- Opinion Evidence 5

• “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 2011 Chap. 9 -- Opinion Evidence 6

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

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

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

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 2011 Chap. 9 -- Opinion Evidence 10

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 2011 Chap. 9 -- Opinion Evidence 11

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 2011 Chap. 9 -- Opinion Evidence 12

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 2011 Chap. 9 -- Opinion Evidence 13

• 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 2011 Chap. 9 -- Opinion Evidence 14

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

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