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May I Get That Door For You?

May I Get That Door For You?. MAY I GET THAT DOOR FOR YOU?. A Workshop on Opinion Testimony. Opinion Testimony. FIVE RULES 1 - Lay Opinion, 701 4 - Expert Opinion, 702 – 705 INTERPLAY WITH 602- First-hand knowledge & 701 401 - 403 – Relevance & 701, 702

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May I Get That Door For You?

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  1. May I Get That Door For You?

  2. MAY I GET THAT DOOR FOR YOU? A Workshop on Opinion Testimony

  3. Opinion Testimony • FIVE RULES • 1 - Lay Opinion, 701 • 4 - Expert Opinion, 702 – 705 • INTERPLAY WITH • 602- First-hand knowledge & 701 • 401 - 403 – Relevance & 701, 702 • 104- Preliminary Questions & 702, 703

  4. Rule 602 • A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. • Rule is subject to the provisions of Rule 703, relating to opinion testimony by expert witnesses.

  5. Rule 104 • Preliminary questions concerning the qualification of a person to be a witness, • Shall be determined by the Court • In making its determination, the Court is not bound by the Rules of Evidence, except those with respect to privileges. • Resolved by the preponderance of the evidence

  6. Rule 104 • Hearings on the admissibility of confessions shall in all cases be conducted out of the presence and hearing of the jury. • Hearings on other preliminary matters shall be so conducted when the interests of justice require

  7. Rules 401-403 • 401 – Defines relevancy • 402 – Relevant is admissible • 403 – Balance for unfair prejudice

  8. Its All About Balance - 403 • May exclude RELEVANT evidence • Probative value SUBSTANTIALLY outweighed by • Unfair prejudice • Confusion • Obfuscation • Delay • Waste • Cumulative

  9. A Memory Jogger • COWCUD • C - confusion • O - obfuscation • W - waste • C - cumulative • U - unfair prejudice • D - delay

  10. It may not be elegant or pretty but striking the balance is the key Balance

  11. Opinion Procedure • No Tender, No Endorsement • Reliability Standard, not Frye • Rejected requirement that expert testimony be “reasonably reliable” • Rejected requirement that judges determine whether there exists “a likelihood that introduction of the testimony may overwhelm or mislead the jury”

  12. Standard for Expert Scientific Testimony: RELIABILITY • Court must be satisfied that the “scientific principles upon which the expert testimony rests are reliable” • Daubert is helpful, but not controlling • “Reliability may be established by judicial notice or sufficient foundation to convince the trial court that the relevant scientific principles are reliable

  13. Scenario # 1 • May the doctor give these opinions? • “The doctor’s testimony regarding the victim’s condition falls into the area of specialized knowledge of anatomy and physiology. Such area of specialized knowledge was within his scope of expertise and beyond the knowledge generally held by lay observers. It was undoubtedly an aid to the jury.”

  14. Scenario #1 Continued • Malinski v. State794 N.E.2d 1071

  15. Scenario # 2 Is the officer’s opinion admissible as either an expert or lay opinion? Kubsch v. State, 784 N.E.2d 905

  16. Kubsch v State • A witness not qualified to offer expert testimony may be qualified as a “skilled witness.” • A skilled witness has “a degree of knowledge short of that sufficient to be declared an expert, but beyond that possessed by the ordinary jurors,

  17. Kubsch v State • May provide an opinion or inference that is rationally based on the perception of the witness and • Helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue under Rule 701.

  18. Kubsch v StateRule 701 and Perception • Perception has been defined as “the process, act, or faculty of perceiving . . . . insight, intuition, or knowledge gained by perceiving.” • Perceive has been defined as “to become aware of directly through any of the senses especially sight or hearing.”

  19. Kubsch v State • The officer’s testimony was not rationally based upon his perceptions. • It was based on his understanding of a phenomenon which the state did not show to be scientifically reliable.

  20. Rationally based upon the perception of the witness AND Helpful to a Clear Understanding AND NOT based on scientific, technical, or other specialized knowledge within the Scope of Rule 702 LAY WITNESS If scientific, technical, or other specialized knowledge will ASSIST AND Witness qualified by knowledge, skill, experience, training, or education, AND the testimony (1)is based upon sufficient facts or data, (2) is the product of reliable principles and methods, and (3) witness has applied the principles and methods reliably to facts EXPERT WITNESS OPINION TESTIMONY

  21. ANALYSIS FOR EXPERT OPINIONS • Is the expert sufficiently qualified by virtue of training, education, experience, skill, or knowledge? • Will the opinion assist the trier of fact in understanding the evidence or determining a fact in issue?

  22. CONT’D • Is the testimony based upon sufficient facts or data? • Is the testimony the product of reliable principles and methods? • Has the witness applied the principles and methods reliability to the facts of the case?

  23. Scenario # 3 • Is there sufficient foundation for Psychiatrist to testify? • Schmid v. State, 804 N.E.2d 174

  24. Schmid v. State • “Psychiatry is a very inexact science if you could even call it a science. We make educated guesses . . . .” • “From the doctor’s testimony, it is understood that this is the inherent nature of this particular field of medicine. The trial court properly exercised its discretion in admitting the doctor’s opinion as to the defendant’s sanity.”

  25. Scenario # 4 • Will you permit the admission of the Expert’s opinion based upon his Cumulative Effects Theory? • PSI Energy, Inc., v The Home Insurance Company, 801 N.E.2d 705.

  26. PSI Energy Inc. v. Home Insurance • May an expert give an opinion in terms such as “possible” or “could have been” or “at least as broad as?” • “An expert’s opinion that something is possible or could have been may be sufficient to sustain a verdict or award when rendered in conjunction with other probative evidence establishing the material factual question to be proved.”

  27. PSI Energy Inc. v. Home Insurance • “But, an opinion which lacks reasonable probability standing alone is not sufficient evidence to support a verdict.”

  28. ANALYSIS FOR EXPERT OPINIONS • Is the expert sufficiently qualified by virtue of training, education, experience, skill, or knowledge? • Will the opinion assist the trier of fact in understanding the evidence or determining a fact in issue?

  29. ANALYSIS FOR EXPERT OPINIONS • Is the testimony based upon sufficient facts or data? • Is the testimony the product of reliable principles and methods? • Has the witness applied the principles and methods reliability to the facts of the case?

  30. BASES OF OPINION - 703 • Facts of Data Perceived by expert at or before hearing or trial • Facts or Data Made Known to expert at or before hearing or trial • If underlying facts are reasonably relied upon by experts in the field, need not be admissible in evidence

  31. Scenario # 5 • How do you rule? Will you allow the Chiropractor to testify to the specific statements contained in the medical records he relied upon? • Faulkner v Markkay of Indiana, Inc., 663 N.E.2d 798

  32. Faulkner v Markkay of Indiana • Expert may rely on if: • expert has sufficient expertise to evaluate the accuracy and reliability • the report is of the type normally found reliable, and • the information is the type customarily relied upon by the expert in the practice of his profession

  33. Faulkner v Markkay of Indiana • Chiropractor not capable of being cross-examined on information contained in the physicians' reports • Evidence rules do not permit the admission of materials, relied upon by an expert witness, for the truth of the matters they contain if the materials are otherwise inadmissible.

  34. INADMISSIBLE FACTS OR DATA • Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion unless the court determines that their probative value in assisting the jury in evaluating the evidence substantially outweighs their prejudicial effect. • 703

  35. Medical Records • Schloot v Guinevere, 697 N.E.2d 1273 • medical records which contained opinions were not admissible under business records exception to hearsay rule. • In Re Termination of ET and BT, 808 N.E.2d 639 • For opinions to be admissible under business records exception to hearsay rule expertise of the opinion giver must be established.

  36. Scenario # 6 • How do you rule? Can Defendant ask Physician on cross examination to read specific notes in the medical records relied upon? • Walker v Cuppett, 808 N.E.2d 85

  37. Walker v Cuppett • Defendant entitled to question Physician on notations in records, because notations undermined expert's opinion. • Evidence of pre-existing conditions and treatment was relevant to issue of causation, and a proper subject for cross-examination of Physician.

  38. DISCLOSURE OF UNDERLYING FACTS OR DATA • Expert witness is not required to disclose facts or data underlying the opinion in advance of giving the opinion, unless the court so orders • But may be required to disclose on cross-examination • 705

  39. OPINION ON ULTIMATE ISSUE • Does not make opinion objectionable • Witnesses may not testify to : • opinions concerning intent, guilt, or innocence in a criminal case; • the truth or falsity of allegations; • whether a witness has testified truthfully; • or legal conclusions. • 704

  40. Rule 704 - Cases • Testimony of defendant's expert in post-conviction hearing, that inmate witnesses should not be believed because they received an incentive to testify, was direct attack on the credibility of state witnesses in murder trial, and inadmissible under Rule 704. Whedon v State, 900 N.E.2d 498

  41. Rule 704 - Cases • “Where no testimony regarding the officer’s training in accident reconstruction or his past experience in investigating accidents. It was error to permit Officer to testify that party was not at fault in accident. • Witte v. M.M., 820 N.E.2d 128

  42. Rule 704 - Cases • Not error to permit state's expert witness to testify that fire was intentionally set, witness merely testified that fire was set intentionally, not that defendant intended to set fire. • Rule 704 was not violated • Julian v State, 811 N.E.2d 392

  43. Rule 704 - Cases • Previously held opinion of a deputy prosecuting attorney at the time of the charged murders that there was “not enough information to charge this case” was an inadmissible opinion of a legal conclusion. • Pelley v State, 901 N.E.2d 494

  44. Scenario # 7 • Will you vote to reverse the Defendant’s conviction? • Krumm v State, 793 N.E.2d 1170

  45. Krumm v. State • “Witnesses may not testify to opinions concerning intent, guilt, or innocence, the truth or falsity of allegations, whether a witness has testified truthfully, or legal conclusions. But there are special problems in assessing the credibility of children.”

  46. “Whenever an alleged child victim testifies and attempts to describe a meeting with an adult which may involve touching, etc., the child’s credibility is automatically in issue, … That justifies the court in permitting some accrediting of the child witness in the form of opinions from parents, teachers, and others having adequate experience with the child, that the child is not prone to exaggerate or fantasize about sexual matters. Such opinions will facilitate an original credibility assessment of the child by the trier of fact so long as they do not take the direct form of ‘I believe the child’s story,’ or ‘In my opinion the child is telling the truth.’”

  47. SUMMARY OF RULES RELATING TO EXPERT OPINION • 702 – sets forth standards of admissibility of expert opinion; amended post Daubert • 703 & 705 – sets forth what expert can base opinion upon (bases of opinion), when the bases is admissible, and when the bases must or may be revealed • 704 – removes common law rule disallowing opinions on ultimate issue; sets forth special rule regarding mental state of defendant in criminal case

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