CHAP 9 OPINION EVIDENCE Prof JANICKE 2015 OPINIONS

CHAP. 9 : OPINION EVIDENCE Prof. JANICKE 2015

OPINIONS ARE GENERALLY INADMISSIBLE • RULE 602 REQUIRES ACTUAL “KNOWLEDGE” FOR MOST TYPES OF EVIDENCE • KNOWLEDGE MEANS PHYSICAL PERCEPTIONS ONLY! • IN A PRACTICAL JUSTICE SYSTEM, WE NEED SOME ROOM FOR OPINIONS 2015 Chap. 9 -- Opinion Evidence 2

MEANING OF OPINIONS • ABOUT 98% OF WHAT WE THINK WE “KNOW” ARE ACTUALLY OPINIONS (e. g. , OUR OWN AGE; ID OF U. S. PRESIDENT OR TEXAS GOVERNOR • OPINIONS CONSIST OF: – FACTS LEARNED FROM OTHERS WHO MAY ACTUALLY KNOW THEM – CONCLUSIONS WE HAVE DRAWN FROM OUR OWN OBSERVATIONS 2015 Chap. 9 -- Opinion Evidence 3

THE OPINION 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 FURTHER ANALYSIS: • SOME KINDS OF OPINIONS ARE ADMISSIBLE 2015 Chap. 9 -- Opinion Evidence 4

OPINIONS OF NON-EXPERTS RULE 701 • ALLOWED IF: 1. BASED ON A PHYSICAL PERCEPTION BY THE WITNESS, AND 2. RATIONALLY BASED, AND 3. HELPFUL TO THE TRIER OF FACT 2015 [NOTE: YOUR OPINIONS ABOUT YOUR AGE OR FAMOUS OFFICE-HOLDERS WILL NOT QUALIFY!] Chap. 9 -- Opinion Evidence 5

• “HELPFUL” MEANS THERE’S NO OTHER FEASIBLE WAY TO CONVEY THE WITNESS’S OBSERVATION • IF TESTIFYING TO A FEW FACTS CAN CONVEY THE STORY TO THE JURY JUST AS WELL, THE OPINION IS DISALLOWED 2015 Chap. 9 -- Opinion Evidence 6

EXAMPLES OF ADMISSIBLE LAY OPINIONS • • HE WAS DRUNK HE WAS UPSET SHE WAS NERVOUS SHE WAS ANGRY ALL REQUIRE FOUNDATION OF A PHYSICAL PERCEPTION 2015 Chap. 9 -- Opinion Evidence 7

FURTHER EXAMPLES OF LAY TRADITIONALLY ALLOWED • INSANITY • HANDWRITING BOTH REQUIRE FOUNDATION OF PHYSICAL PERCEPTION 2015 Chap. 9 -- Opinion Evidence 8

PROBLEMS/CASES • 9 A • 9 B 2015 Chap. 9 -- Opinion Evidence 9

EXPERT OPINIONS: 1 ST-HAND PERCEPTION NOT REQUIRED (RULE 702) • SPECIAL KNOWLEDGE OR EXPERIENCE IN SOME AREA – SCIENTIFIC, BUSINESS, ARTS, CAR REPAIR, ETC. – CRIME DETECTION? CONTROVERSIAL 2015 Chap. 9 -- Opinion Evidence 10

EXPERT’S METHODOLOGY MUST BE RELIABLE • CHECKED INITIALLY BY THE JUDGE BEFORE TRIAL • IF JUDGE FINDS METHODOLOGY WAS RELIABLE, OPINION IS ADMITTED FOR JURY EVALUATION • JURY MAY STILL FIND METHODOLOGY WAS UNRELIABLE AND GIVE OPINION NO WEIGHT 2015 Chap. 9 -- Opinion Evidence 11

VOIR DIRE PRIOR TO GETTING OPINION IS ALMOST UNIVERSAL • JUDGE HAS ALREADY DECIDED GOOD METHODOLOGY, BUT: – NEED TO CUT THE EXPERT DOWN TO SIZE BEFORE THE JURY • DIDN’T CONSIDER X • DIDN’T CONSIDER Y • CONCEDE FALLIBILITY – MISTAKES MAY HAVE APPEARED RE. CARRYING OUT THE METHODOLOGY 2015 Chap. 9 -- Opinion Evidence 12

PROBLEMS/CASES • • • 2015 9 C Daubert Du. Pont [see posted materials] 9 D 9 E Chap. 9 -- Opinion Evidence 13

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 2015 Chap. 9 -- Opinion Evidence 14

• 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; – EXPERT CAN ALWAYS GO TO THE BOTTOM LINE, IF METHODOLOGY IS GOOD 2015 Chap. 9 -- Opinion Evidence 15

COURT-APPOINTED EXPERT (RULE 706) • GOOD IN THEORY • LITIGATORS CRINGE! 2015 Chap. 9 -- Opinion Evidence 16

STIPULATING EXPERTISE OF YOUR EXPERT WITNESS • OFTEN VOLUNTEERED BY ADVERSARY • SELDOM ACCEPTED – WOULD REMOVE DRAMA – NO FEAR OF ANY OBJECTION 2015 Chap. 9 -- Opinion Evidence 17

PROBLEMS/CASES • Film Clip from My Cousin Vinny on expert witness testimony 2015 Chap. 9 -- Opinion Evidence 18