Evidence Lay And Expert Opinions PDF

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Evidence: Lay and Expert Opinions April 12: Book 735-739, 748-761, 783-794, FRE 701-705 735-739 

Lay witnesses can state 2 broad kinds of opinions o 1) inferences that can hardly be stated in the form of sensory perceptions alone  “appearance of persons/things, manner of conduct, degrees of light or darkness, sound, size, weight, distance…” o 2) things like “he was drunk” – based on sensory facts that can be broken down but we allow the conclusions b/c we all know what drunk looks like.  but need to lay a foundation here  “walking unsteadily, red eyes”  courts see witness’s opinion adds something useful to the foundational facts – something that will help jury decide whether X was really drunk

Rule 701 

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Imposes only 3 constraints o 701(a) = demands lay witness’s opinions be “rationally based on [her] perception  firsthand knowledge requirement (like in 602) o 701(b) = requires that lay opinions be helpful to the jury’s factfinding  most lay opinions that convey reliable and material info (beyond what jurors already know) clear this second hurdle o 701(c) = demand that lay witness not invade the expert’s realm If attempts are made to introduce meaningless assertions which amount to little more than choosing up sides, exclusion for lack of helpfulness is called for by 701 Rule does not distinguish b/w expert and lay witnesses, but rather b/w expert and lay TESTIMONY. o It’s possible for the same witness to be give both lay and expert testimony. Distinction b/w lay and expert testimony is that lay testimony “results from a process of reasoning familiar in everyday life” while expert testimony “results from a process of reasoning which can be mastered only be specialists in the field.

748-761 Expert Testimony Daubert demands on expert opinion testimony 1. Proper qualifications = witness must be “qualified as an expert by knowledge, skill, experience, training or education (702) 2. Proper Topic = expert’s testimony typically must concern a topic that is beyond the ken of jurors. Moreover, the expert may not simply tell the jurors what result to reach in the case and may not intrude on the judge’s role as legal expert. That is, the expert’s opinion must “help” the jurors by supplying info or insights they otherwise would lack (702(a) and 704) 3. Sufficient basis = the expert must have an adequate factual basis for her opinions (702(a) and 703) 4. Relevant and reliable methods = the expert’s testimony must be “the produce of reliable principles and methods…reliably applied…to the facts of the case” (702(c), (d), Daubert) 5. Rule 403 challenge = the evidence, if challenged, must survive a 403 weighing test

Who qualifies as an expert? US v. Johnson (1979) FACTS: The six defendants (defendants) in this case were charged with dealing in marijuana. One of the issues was whether the marijuana had been imported from outside the United States, namely Colombia. The prosecution called John de Pianelli to testify as an expert witness that the marijuana dealt by defendants came from Colombia. De Pianelli allegedly helped the defendants’ smuggling ring by unloading it and smoking some of the marijuana each time to make sure it was Colombian. De Pianelli said he had smoked marijuana over 1,000 times and that he had been asked to identify marijuana over 100 times and had never made a mistake. He based his identification on the marijuana’s appearance, smell and the effect of smoking it. The defendants objected to de Pianelli as an expert witness. The district court permitted de Pianelli’s testimony and the defendants were convicted. The defendants appealed. ISSUE: Whether de Pianelli qualified as providing expert testimony HOLDING: Yes. Rule 702 provides that expertise may be obtained by experience as well as from formal training or education

Jinro America, Inc. v. Secure Investments, Inc. (2001) Issue. Was it error for the lower court to have allowed Appellee’s private investigator witness to testify as an expert? Held. Yes; the testimony was unreliable under Federal Rule of Evidence 702 and unduly prejudicial under Federal Rule of Evidence 403, and therefore should not have been admitted. Expert testimony is important b/c allows 1. testimony based on hearsay and opinions rather than 1st hand knowledge 2. expert testimony carries more weight with the jury

Improper topics of Expert Testimony – 702 & 704 Matters of Common Knowledge Problem 9.7 Problem 9.8 Problem 9.9

Opinions on Law and Opinions on Ultimate Issues Problem 9.10

783-794 Proper Basis of Opinion Testimony 

2 things distinguish expert opinions from lay opinions o 1) background knowledge that informs them and the specific facts on which they rest

2) Only lay opinions MUST be “based on facts w/in the witness’s perception”  expert witnesses need not testify from personal knowledge First sentence of 703: “An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed”. This allows an expert to base her opinion on 3 sorts of facts o 1) may rely on “facts or data…that the expert…personally observed” o 2) may rely “on facts or data…that the expert has been made aware of” at the hearing: An expert who attends trial and watches the proceedings may rely on trial testimony and exhibits when forming her opinions”  If the pertinent facts are in dispute, the lawyers may need to tell the expert which facts to accept as true. Here lawyers often deploy hypothetical questions: “Dr., assume that DJ was accurate when she estimated the D’s speed at 45mph and that MA was accurate when he said the road was icy. Based on these facts and your training/experience, do you have an opinion as to the cause of the crash?”  hypothetical questions hold a more central role when the expert has NOT viewed the trial testimony  few litigants can pay expert to watch other witnesses testify – lawyers use hypos to inform the expert about the facts already in evidence “Dr., assume the following facts to be true…”  can’t just make up facts – there must be “enough evidence to support a finding that the necessary facts exist”  this standard is similar to conditional relevance under 104(b)  An expert’s opinion, based on certain assumptions, has no relevance if those assumptions are false  104(b)’s low standard permits opposing lawyers to pose competing hypotheses on cross-exam o as long as there’s enough evidence in the record to support each lawyer’s factual assumptions, both questions are proper o 3) expert may rely “on facts or data…that the expert has been made aware of” BEFORE the hearing: here we enter the realm of hearsay  703 makes clear, the expert still may rely on hearsay (EX: ground controller’s reports on a plane crash) “if experts in the particular field (EX: if aeronautical experts reasonably rely on ground controllers’ accounts about how a crash happened) would reasonably rely on those kinds of facts or data in forming an opinion on the subject”  expert’s opinion may be admissible even though it relies in part on such accounts and even though the accounts themselves are not admissible.  expert CANNOT merely act as a conduit, transmitting otherwise inadmissible secondhand reports in reaching an opinion that is otherwise informed by the tools of her discipline  703 - expert’s reliance on otherwise inadmissible facts does not make those facts admissible.  only the expert’s opinion, based in part on those facts, is admissible.  On cross-exam, opposing counsel may, if he chooses, seek to undermine the expert’s opinion by asking about the underlying facts  but the lawyer who sponsors the witness may not disclose the otherwise inadmissible facts to the jury unless the court determines that “their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect o this reverse-403 weighing test creates “a presumption against disclosure to the jury of the underlying hearsay…by the proponent of the expert” o

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even if the underlying hearsay is disclosed to the jury, it is not admissible substantively – for its truth – but only to help jury assess the reliability of the expert’s opinion  if hearsay account is admitted under the balancing test set out by the rule, “the trial judge must give a limiting instruction upon request, informing the jury that the underlying info must not be used for substantive purposes 703 thus completely disengages the admissibility of the expert’s opinion from the admissibility of the facts support it as long as other “experts in the particular field would reasonably rely on” such facts.  705 permits “an expert to state an opinion – and give the reasons for it – w/o first testifying to the underlying facts or data” unless the court orders otherwise. 

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Learned Treatises and Medical Statements 

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One context in which expert’s reliance on inadmissible hearsay actually makes that hearsay admissible as substantive evidence o 803(18) = an expert’s reliance on a learned treatise during direct exam or her acknowledgment of its authority on cross exam dissolves any hearsay objection to pertinent parts of the document  proponent must establish the documents’ authority either through expert’s testimony or through another expert’s testimony or by judicial notice o 803(4) = renders statements made for purposes of medical diagnosis or treatment substantively admissible  applies even if patient speaks w/her doctor not to obtain medical treatment, but merely to enable the doctor to form a diagnosis and testify about that diagnosis at an upcoming trial o Unlike 803(18), FRE 803(4) does not specifically require that the expert in some way rely on the out of court statements  rationale = doctors rely on their truth of their patients so they should be reliable and trustworthy in court Supreme court divided on this o one view: “when a witness, expert or otherwise, repeats an out of court statement as the basis for a conclusion…the statement’s utility is then dependent on its truth. If the statement is true then the conclusion based on it is true. If not, then not.” o other view: can rely on the opinion without relying on the underlying hearsay where there’s other evidence and circumstances demonstrated their truth (Williams v. Illinois) It’s ok for experts to rely on hearsay b/c otherwise where would they get the info for? o Justice Frankfurter = “this is common sense” o In re Melton Obviously not everything that family members etc. tell doctor about the patient is true. o But: a properly qualified expert is assumed to have the necessary skill to evaluate any second-hand info and to give it only such probative force as the circumstances warrant. Accordingly, the court should accord an expert wide latitude in choosing the sources on which to base his or her opinions. BUT the court may not abdicate its independent responsibilities to decide if the bases meet minimum standards of reliability as a condition of admissibility (104a) If the underlying data are so lacking in probative force and reliability that no reasonable expert could base an opinion on them, an opinion which rests entirely upon them must be excluded. o 703 – judge may no substitute his judgment for the expert’s as to what data are sufficiently reliable, provided that such reliance falls w/in the broad bounds of reasonableness. “The roper inquiry is not what the court deems reliable, but what experts in the relevant discipline [reasonably] deem it to be”

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Melton Court = “when the expert witness has consulted numerous sources, and uses that information, together w/his own professional knowledge and experience, to arrive at his opinion, that opinion is regarded as evidence in its own right and not as hearsay in disguise”

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Problem 9.13 Problem 9.14

Assessing the Reliability of Expert Scientific Testimony – the Doctrine Frye v. US (1923)

Class Notes 4-12-17 Problem 9.1  

Don’t need expert experience/knowledge to know how “Depressed” tone sounds issue? insurance claims investigator doesn’t know the baseline tone of voice of this person o foundational issues of familiarity of the other person to know if he’s depressed

Problem 9.2  

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foundational issues solved here – witnesses know what the buyer looks like would it be helpful to the jury? o yes – defendant is claiming reasonable mistake o what other people think the buyer looked like is relevant guessing someone’s age isn’t “expert knowledge” buyer doesn’t testify o if she testified, does it matter to have witnesses say how old she looked? o NO b/c jury can guess by looking at her In what case is it still helpful to have the witnesses say how old she looked even if she testifies? o passage of time – her appearance changed since the day in question

History – Common Law       

lay opinions testify to FACTS those were narrow exceptions but with 701, it becomes more broad in how the witness testifies witnesses can’t speculate/guess must be rationally based on something witness has perceived and must be helpful to the jury can’t be expert testimony this is where there’s some blurriness – not always easy to know the difference b/w lay and expert

Problem 9.3 

witness had enough experience, don’t need to be an expert to know something is cocaine, just enough experience with it and it was helpful to the jury

Problem 9.5

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Daubert qualifications only way he could qualify as an expert was to testify to his extensive drug use Line is a little bit fuzzy

Daubert Requirements on 748 

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proper qualifications = 104(a) question o some gamesmanship  “tell us about your publications, education background etc.”  the other side will try to shorten this by stipulating to your expert’s background and then the jury won’t get to hear this  then come back and say “well, since it’s been stipulated that my witness is an expert clearly, I’ll just keep it brief and mention some of his credentials for the jury” proper topic = 704 – no blanket prohibition on expert’s giving an opinion on something like negligence ?????

Jinro v. Secure Investments  

majority = Pelham doesn’t qualify as an expert dissent = Pelham IS an expert but it’s too prejudicial b/c it’s basically propensity evidence for a whole country

Problem 9.6  

is there an accurate factual basis? when listening to the tape, can he accurately say what the code means? Won’t we want some other evidence that this is the context being triggered here in interpreting the code?

Problem 9.7  

some topics won’t be appropriate b/c … do we need an expert opinion on whether “Match” and “Macho” sound strikingly similar? o what would that testimony even look like?

Problem 9.8  

might be helpful to jurors to hear about how ads can be racially selective, or might think they know but don’t in fact know on its face, the testimony meets this criteria

Concerns 

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not helpful for an expert to do the jury’s job o “usurps factfinder’s job” o “do you believe the doctor committed malpractice?” = usurps jury’s function or overweigh expert testimony but this all resulted in difficult line drawing so 704 has a general allowance for witness to testify to these things, but in 704(b) is different for criminal cases for D’s state of mind o worried that jury will overvalue expert testimony

Proper basis p. 783   

can ask an expert to do something very close to speculating to assume certain facts are true and then offer an opinion on those facts page 785 is very important

Reliability of expert scientific testimony 

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FRYE p. 794: “somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a wellrecognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs” Questions from this test: o is the field itself recognized? Under Frye case = You could have a hearing on whether an expert if you have a novel malpractice case, and P wants to bring a doctor to testify to a medical principle to advance that claim o might be a question about whether that field exists Under Frye, could bring another witness to testify that the doctor’s field is actually legit a recognized field in order to let him testify at trials Under Frye, you have possibility of multiple hearings Generally, almost everyone who had any kind of credential, was likely to qualify as an expert o the standard was “general acceptance” would be very low bar for expert testimony o under Frye, it was jokingly low This becomes more stringent later on.

April 13: Book 794-810, 847-858

Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993)

Daubert Trilogy  

Kumho Tire Company = extended Daubert’s holding to all expert testimony, not merely “scientific” expertise General Electric Co. v. Joiner = subtly but significantly eased the impact of Daubert on district court judges even as it raised the barrier against admission of proposed scientific expertise. o justices held that appellate courts are to review lower-court rulings on the admissibility of expert testimony under Daubert only for abuse of discretion o While easing review of district judges’ rulings, Joiner heightened scrutiny of proposed scientific expertise. o Daubert had deemed “the inquiry envisioned by 702 to be a flexible one. The focus, of course, must be solely on principles and methodology, not on the conclusions that they generate.” o Joiner Court insisted that an expert’s conclusions must withstand the trial judge’s scrutiny  “conclusions and methodology are not entirely distinct from one another a court may conclude that there is simply too great an analytical gap b/w data and the opinion proffered.”

Is Daubert Higher or Lower Hurdle? 

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Daubert’s court = “rigid general acceptance requirement of Frye was at odds w/liberal thrust of FRE” implying that court was ushering in a newly liberal regime. “expert scientific evidence could be shaky but admissible” o “gatekeeping role of trial judge” o case is seen as court’s counterstrike against the invasion of “junk science” into the nation’s courtrooms – a response to the perceived problem of the hired gun expert witness Joiner = “FRE (Daubert) allow district courts to admit a somewhat broader range of scientific testimony that would have been admissible under Frye”

Comparing Daubert and Frye States 

b/c Daubert merely interpreted FRE 702 and did not announce a constitutional ruling binding on the states, state courts and legislatures remain free to retain Frye or embrace Daubert or take a different tack altogether.

page 806 Rule 702 

Amendment to 702 embraced Daubert’s notion that the trial judge should ask as gatekeeper, guarding against unreliable expert evidence. And it embraced Kumho Tire’s conclusion “that Daubert’s general holding – setting forth the trial judge’s general ‘gatekeeping’ obligation – applies not only to testimony based on ‘scientific’ knowledge, but also to testimony based on ‘technical’ and ‘other specialized’ knowledge”

Assessing the Reliability of Non-Scientific Expertise – The Doctrine Kumho Tire Company v. Carmichael (1999)

Class Notes 4-13-17  

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403 favors admissibility – “substantially overweighs” o so it’s relatively easier for the proponent of the witness to bring in the basis of their opinions if you’re the proponent, assume the underlying basis is prejudicial unless sh...