CHAP 9 OPINION EVIDENCE Prof JANICKE 2020 OPINIONS

CHAP. 9 : OPINION EVIDENCE Prof. JANICKE 2020

OPINIONS ARE GENERALLY INADMISSIBLE • RULE 602 REQUIRES ACTUAL “KNOWLEDGE” FOR MOST TYPES OF EVIDENCE • KNOWLEDGE MEANS PHYSICAL PERCEPTIONS ONLY! • BUT: IN A PRACTICAL JUSTICE SYSTEM, WE NEED SOME ROOM FOR OPINIONS Chap. 9 -- Opinion Evidence 2020 2

MEANING OF OPINIONS • ABOUT 98% OF WHAT WE THINK WE “KNOW” ARE ACTUALLY OPINIONS • OPINIONS CONSIST OF: 1. FACTS LEARNED FROM OTHERS WHO MAY ACTUALLY KNOW THEM FIRSTHAND; or 2. CONCLUSIONS WE HAVE DRAWN FROM OUR OWN OBSERVATIONS 2020 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 2020 Chap. 9 -- Opinion Evidence 4

OPINIONS OF NON-EXPERTS (LAY OPINIONS) ARE SOMETIMES ADMISSIBLE • 2020 RULE 701 (assigned) Chap. 9 -- Opinion Evidence 5

• “HELPFUL” MEANS THERE’S NO OTHER FEASIBLE WAY TO CONVEY THE WITNESS’S PHYSICAL OBSERVATION 2020 Chap. 9 -- Opinion Evidence 6

EXAMPLES OF ADMISSIBLE LAY OPINIONS • HE WAS UPSET • SHE WAS NERVOUS • SHE WAS ANGRY ALL REQUIRE FOUNDATION OF A PHYSICAL PERCEPTION 2020 Chap. 9 -- Opinion Evidence 7

LAY OPINIONS TRADITIONALLY ALLOWED AT COMMON LAW, AND STILL OK TODAY – INSANITY or SANITY – HANDWRITING – DRUNKENNESS or SOBRIETY 2020 Chap. 9 -- Opinion Evidence 8

PROBLEMS/CASES • 9 A • 9 B 2020 Chap. 9 -- Opinion Evidence 9

EXPERT OPINIONS: FOR THESE, 1 ST-HAND PERCEPTION IS NOT REQUIRED • ASSIGNED: RULE 702 • BASIS: SPECIAL KNOWLEDGE OR EXPERIENCE IN SOME AREA 2020 Chap. 9 -- Opinion Evidence 10

CAN OFTEN BE A BLEND OF PERCEPTION AND OPINION • MANY EXPERT OPINIONS ARE BASED ON PHYSICAL PERCEPTIONS (1 ST-HAND KNOWLEDGE) AND OPINION • EXAMPLE: CORONER-MEDICAL EXAMINER; 1 ST HAND AUTOPSY OBSERVATIONS + OPINION 2020 Chap. 9 -- Opinion Evidence 11

EXPERT’S METHODOLOGY MUST BE RELIABLE • CHECKED INITIALLY BY THE JUDGE, AT A HEARING BEFORE TRIAL • IF JUDGE FINDS METHODOLOGY WAS RELIABLE, OPINION IS ADMITTED FOR JURY EVALUATION 2020 Chap. 9 -- Opinion Evidence 12

VOIR DIRE PRIOR TO SAYING THE OPINION IS ALMOST UNIVERSALLY DONE • TWO DIFFERENT TACTICAL PURPOSES 1. CHALLENGE THE METHODOLOGY 2. ADVOCACY: CUT THE EXPERT DOWN TO SIZE BEFORE THE JURY HEARS THE OPINION 2020 Chap. 9 -- Opinion Evidence 13

PROBLEMS/CASES • • • 2020 9 C Daubert Kumho 9 D Moore 9 E Chap. 9 -- Opinion Evidence 14

OPINION ON AN ULTIMATE FACT • RULE 704: ASSIGNED • THE OLD CLICHÉ: “INVADING THE PROVINCE OF THE JURY” – WAS NONSENSE • NOW GENERALLY ALLOWED, IF OTHERWISE IN COMPLIANCE WITH RULES Chap. 9 -- Opinion Evidence 2020 15

• EXCEPTION: STATE OF MIND OF CRIMINAL D – THE OLD CLICHÉ SURVIVES HERE – USUALLY SANITY IS INVOLVED – EXPERT MUST STAY ONE-STEP-BACK 2020 Chap. 9 -- Opinion Evidence 16

COURT-APPOINTED EXPERT WITNESS (RULE 706 assigned) • GOOD IN THEORY • LITIGATORS CRINGE! 2020 Chap. 9 -- Opinion Evidence 17

ACCEPTING A STIPULATION OF EXPERTISE OF YOUR EXPERT WITNESS? • A STIPULATION OF CREDENTIALS IS OFTEN VOLUNTEERED BY ADVERSARY • IS SELDOM ACCEPTED 2020 Chap. 9 -- Opinion Evidence 18

PROBLEMS/CASES • Film Clip from My Cousin Vinny on expert witness testimony 2020 Chap. 9 -- Opinion Evidence 19